EXHIBIT 99.2
364-DAY CREDIT AGREEMENT
dated as of
September 28, 2004
among
PIONEER NATURAL RESOURCES COMPANY,
as the Borrower
JPMORGAN CHASE BANK,
as Administrative Agent
and
The Lenders Party Hereto
----------------------------
BANK OF AMERICA, N.A., BARCLAYS BANK PLC, WELLS FARGO BANK,
NATIONAL ASSOCIATION, and WACHOVIA BANK, NATIONAL ASSOCIATION,
Co-Documentation Agent
----------------------------
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
Page:
----
ARTICLE I Definitions......................................................1
Section 1.01 Defined Terms...................................1
Section 1.02 Classification of Loans and Borrowings.........15
Section 1.03 Terms Generally................................15
Section 1.04 Accounting Terms; GAAP.........................15
ARTICLE II The Credits....................................................16
Section 2.01 Commitments....................................16
Section 2.02 Conversion to Term Loans.......................16
Section 2.03 Revolving Loans and Borrowings.................16
Section 2.04 Requests for Revolving Borrowings..............17
Section 2.05 Intentionally Omitted..........................17
Section 2.06 Intentionally Omitted..........................17
Section 2.07 Funding of Borrowings..........................18
Section 2.08 Interest Elections.............................18
Section 2.09 Termination and Reduction of Commitments.......19
Section 2.10 Repayment of Loans; Evidence of Debt...........20
Section 2.11 Prepayment of Loans............................21
Section 2.12 Fees...........................................21
Section 2.13 Interest.......................................22
Section 2.14 Alternate Rate of Interest.....................22
Section 2.15 Increased Costs................................23
Section 2.16 Break Funding Payments.........................24
Section 2.17 Taxes..........................................24
Section 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs............................26
Section 2.19 Mitigation Obligations; Replacement
of Lenders.....................................27
ARTICLE III Representations and Warranties................................28
Section 3.01 Organization; Powers...........................28
Section 3.02 Authorization; Enforceability..................28
Section 3.03 Governmental Approvals; No Conflicts...........28
Section 3.04 Financial Condition; No Material
Adverse Change.................................28
Section 3.05 Properties.....................................29
Section 3.06 Litigation and Environmental Matters...........29
Section 3.07 Compliance with Laws...........................29
Section 3.08 Investment and Holding Company Status..........29
Section 3.09 Taxes..........................................29
Section 3.10 ERISA..........................................30
Section 3.11 Disclosure.....................................30
Section 3.12 Subsidiary Guarantees..........................30
ARTICLE IV Conditions.....................................................30
Section 4.01 Effective Date.................................30
Section 4.02 Each Credit Event..............................31
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364-DAY CREDIT AGREEMENT
ARTICLE V Affirmative Covenants...........................................31
Section 5.01 Financial Statements and Other Information.....31
Section 5.02 Notices of Material Events.....................33
Section 5.03 Existence; Conduct of Business.................33
Section 5.04 Payment of Obligations.........................33
Section 5.05 Maintenance of Properties; Insurance...........33
Section 5.06 Books and Records; Inspection Rights...........34
Section 5.07 Compliance with Laws...........................34
Section 5.08 Use of Proceeds................................34
Section 5.09 Operations.....................................34
ARTICLE VI Negative Covenants.............................................34
Section 6.01 Indebtedness...................................34
Section 6.02 Liens..........................................35
Section 6.03 Fundamental Changes............................36
Section 6.04 Financial Covenants............................36
Section 6.05 Investments, Loans, Advances, Guarantees
and Acquisitions...............................36
Section 6.06 Swap Agreements................................37
Section 6.07 Transactions with Affiliates...................37
Section 6.08 Restrictive Agreements.........................37
ARTICLE VII Events of Default.............................................37
ARTICLE VIII The Administrative Agent.....................................40
Section 8.01 Administrative Agent...........................40
Section 8.02 The Lead Arranger, Sole Bookrunner, and
Co-Documentation Agents........................42
ARTICLE IX Miscellaneous..................................................42
Section 9.01 Notices........................................42
Section 9.02 Waivers; Amendments............................43
Section 9.03 Expenses; Indemnity; Damage Waiver.............43
Section 9.04 Successors and Assigns.........................44
Section 9.05 Survival.......................................47
Section 9.06 Counterparts; Integration; Effectiveness.......48
Section 9.07 Severability...................................48
Section 9.08 Governing Law; Jurisdiction; Consent to
Service of Process.............................48
SECTION 9.09 WAIVER OF JURY TRIAL...........................49
Section 9.10 Headings.......................................49
Section 9.11 Confidentiality................................49
Section 9.12 Interest Rate Limitation.......................50
Section 9.13 USA Patriot Act Notice.........................51
Schedules:
- ---------
Schedule 2.01 Commitments
Schedule 3.06 Disclosed Matters
Schedule 6.02 Liens
Schedule 6.08 Existing Restrictive Agreements
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364-DAY CREDIT AGREEMENT
Exhibits:
- --------
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Opinion of Borrower's Counsel
Exhibit C Form of Subsidiary Guaranty
Exhibit D Form of Promissory Note
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364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT dated as of September 28, 2004, among PIONEER
NATURAL RESOURCES COMPANY, a Delaware corporation, as the Borrower, JPMORGAN
CHASE BANK, as Administrative Agent, the LENDERS party hereto, BANK OF AMERICA,
N.A., BARCLAYS BANK PLC, WELLS FARGO BANK, NATIONAL ASSOCIATION, AND WACHOVIA
BANK, NATIONAL ASSOCIATION, as Lender and Co-Documentation Agents, and J.P.
MORGAN SECURITIES INC., as Lead Arranger and Sole Bookrunner.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agreement" means this 364-Day Credit Agreement, as the same may be
amended, modified, restated, or replaced from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Commitments represented by such Lender's Commitment. If the Commitments
have terminated or expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to any assignments.
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364-DAY CREDIT AGREEMENT
"Applicable Margin" means, for any day, with respect to any Eurodollar
Loan, or with respect to the commitment fees payable hereunder, as the case may
be, the Applicable Margin per annum set forth below under the caption
"Eurodollar Spread" or "Commitment Fee Rate", as the case may be, based upon the
ratings by Moody's and S&P, respectively, applicable on such date to the Index
Debt:
==================== ===================== ===================
Index Debt Ratings Commitment Fee Rate Eurodollar Spread
-------------------- --------------------- -------------------
Category 1 0.25 % 0.75 %
>=Baa3/BBB-
-------------------- --------------------- -------------------
Category 2 0.30 % 1.00 %
<Baa3/BBB-
==================== ===================== ===================
Applicable Margin for ABR Loans is zero percent (0%).
For purposes of the foregoing, if both Moody's and S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such agencies shall
be deemed to have established a rating in Category 2. If the ratings established
or deemed to have been established by Moody's and S&P for the Index Debt shall
fall within different Categories, the Applicable Margin shall be based on the
higher of the two ratings; provided, however, that if only one of Moody's or S&P
shall have established a rating, then the Applicable Margin shall be determined
by reference to such available rating. If the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Moody's or S&P),
such change shall be effective as of the date on which it is first announced by
the applicable rating agency, irrespective of when notice of such change shall
have been furnished by the Borrower to the Agent and the Lenders pursuant to
Section 5.01 or otherwise. Each change in the Applicable Margin shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Margin shall be determined by reference to the rating
of such agency most recently in effect prior to such change or cessation.
After the Revolving Commitment Termination Date and until the Final
Maturity Date, the Eurodollar Spread shall be as set forth above plus 0.25%.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
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364-DAY CREDIT AGREEMENT
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Revolving Commitment Termination Date
and the date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Pioneer Natural Resources Company, a Delaware corporation.
"Borrowing" means Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.04.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City or Texas are authorized or required by
law to remain closed; provided that, when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Certifying Officer" has the meaning set forth in Section 5.01(c).
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; or
(b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Borrower by Persons who were neither (i) nominated by the
board of directors of the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.15(b), by any lending office of such Lender or by such Lender's
holding companies, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
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364-DAY CREDIT AGREEMENT
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or Term
Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to convert the Revolving Loans outstanding on
the Revolving Commitment Termination Date to Term Loans, expressed as an amount
representing the maximum aggregate amount of such Lender's Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.09, or (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$900,000,000.
"Consolidated EBITDAX" means, with respect to the Borrower and its
Restricted Subsidiaries, for any period, Consolidated Net Income for that
period, plus (a) to the extent included in determining Consolidated Net Income
for that period, (i) the aggregate amount of Consolidated Interest Expense for
that period, (ii) the aggregate amount of letter of credit fees paid during that
period, (iii) the aggregate amount of income tax expense for that period, (iv)
non-cash extraordinary losses, (v) losses on the disposition of assets, (vi)
losses or charges under Statement of Financial Accounting Standards 133 (and any
statements replacing, modifying or superceding such statement) resulting from
the net change in the Borrower's (or any Restricted Subsidiary's) mark-to-market
portfolio of commodity price risk management activities and (vii) all amounts
attributable to depreciation, depletion, amortization, and other non-cash
charges and expenses for that period and (viii) exploration and abandonment
expenses, minus (b) to the extent included in determining Consolidated Net
Income for that period, (i) non-cash extraordinary income (ii) gains on the
disposition of assets and (iii) non-cash gains under Statement of Financial
Accounting Standard 133 (and any statements replacing, modifying or superceding
such statement) resulting from the net change in Borrower's (or any Restricted
Subsidiary's) mark-to-market portfolio of commodity price risk management
activities during that period, in each case determined on a consolidated basis
in accordance with GAAP and without duplication of amounts.
"Consolidated Interest Expense" means, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis for any period, the sum of (i)
gross interest expense (including all cash and accrued interest expense) of the
Borrower and its Restricted Subsidiaries for such period on a consolidated basis
in accordance with GAAP, including to the extent included in interest expense in
accordance with GAAP (x) the amortization of debt discounts and (y) the portion
of any payments or accruals with respect to Capital Leases allocable to interest
expense and (ii) capitalized interest of the Borrower and its Restricted
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, net income of the Borrower
and its Restricted Subsidiaries determined on a consolidated basis in accordance
with GAAP.
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364-DAY CREDIT AGREEMENT
"Consolidated Tangible Net Worth" means, at any date, (i) the Consolidated
shareholders' equity of Borrower and its Restricted Subsidiaries (determined in
accordance with GAAP); less (ii) the amount of Consolidated intangible assets of
Borrower and its Restricted Subsidiaries, provided, that to the extent oil and
gas mineral leases are classified as intangible assets under GAAP, for purposes
of this definition, those assets will be treated as tangible assets; less (iii)
the other comprehensive income component of consolidated shareholders' net
equity of Borrower and its Restricted Subsidiaries attributable to deferred
hedge gains; plus (iv) the aggregate amount of any non-cash write downs under
Statements of Financial Accounting Standards Nos. 19, 109, 142, and 144, (and
any statements replacing, modifying or superceding such statement), on a
Consolidated basis, by Borrower and its Restricted Subsidiaries after December
31, 2002, net of associated taxes; plus (v) the other comprehensive income
component of consolidated shareholders' net equity of Borrower and its
Restricted Subsidiaries attributable to deferred hedge losses.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the
outstanding principal amount of such Lender's Loans at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date, on or before December 31, 2004, on which
the conditions specified in Section 4.01 are satisfied (or waived in accordance
with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
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364-DAY CREDIT AGREEMENT
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning set forth in Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.19(b), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement whether upon execution or upon assignment (or designates
a new lending office) or is attributable to such Foreign Lender's failure to
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364-DAY CREDIT AGREEMENT
comply with Section 2.17(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a).
"Executive Officer" means any Financial Officer, executive vice president,
officer ranking above an executive vice president and any officer that is the
functional equivalent of the foregoing.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Maturity Date" means the earlier of:
(a) the date occurring one year after the Revolving Commitment
Termination Date; and
(b) the date on which the Loans have become due and payable in full
pursuant to the terms of Article VII.
"Financial Officer" means, with respect to any Person, the chief financial
officer, principal accounting officer, treasurer or controller of such Person.
The term "Financial Officer" without reference to a Person shall mean a
Financial Officer of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
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364-DAY CREDIT AGREEMENT
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, or (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Highest Lawful Rate" means, 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 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
allow as of the date hereof.
"Hydrocarbons" means oil, gas, casinghead gas, condensate, distillate,
liquid hydrocarbons, gaseous hydrocarbons, all products refined, separated,
settled and dehydrated therefrom and all products refined therefrom, including,
without limitation, kerosene, liquefied petroleum gas, refined lubricating oils,
diesel fuel, drip gasoline, natural gasoline, helium, sulfur and all other
minerals.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property
or services (other than customary payment terms taken in the ordinary course of
business), (d) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed limited, however to the lesser of
(1) the amount of its liability or (2) the book value of such property, (e) all
Guarantees by such Person of Indebtedness of others, (f) all Capital Lease
Obligations of such Person, (g) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit, (h) all
obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, (i) the amount of deferred revenue attributed to any forward sale
of production for which such Person has received payment in advance other than
on ordinary trade terms, (j) all obligations of such Person in respect of
synthetic leases and (k) the undischarged balance of any production payment
created by such Person or for the creation of which such Person directly or
indirectly received payment. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
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364-DAY CREDIT AGREEMENT
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
money of the Borrower that is not guaranteed by any other Person except for a
Subsidiary Guarantor or subject to any other credit enhancement; provided, that
if the Borrower does not have any such indebtedness, Index Debt shall be the
indebtedness under this Agreement.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
or, with the consent of the Administrative Agent, nine or twelve months
thereafter, as the Borrower may elect; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Lead Arranger" means J.P. Morgan Securities Inc.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
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364-DAY CREDIT AGREEMENT
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, or security interest in, on or of such asset, or
any other charge or encumbrance on any such asset to secure Indebtedness or
liabilities, but excluding any right to netting or setoff (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Loan Documents" means this Agreement and the Subsidiary Guaranties, if
any.
"Loans" means the Revolving Loans or Term Loans made by the Lenders to the
Borrower pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, or financial condition of the Borrower and the
Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower or any
Subsidiary Guarantor to perform any of its obligations under this Agreement and
any other Loan Document or (c) the rights of or benefits available to the
Lenders under this Agreement and any other Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding
$75,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
"Mid-Investment Grade Date" means the first date on which the Borrower's
Index Debt rating is BBB or better by S&P's or Baa2 or better by Moody's, unless
one of the two ratings is two or more categories lower than the other and the
category that is one above the lower rating is not BBB or Baa2 or better.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Obligors" means the Borrower and the Subsidiary Guarantors, each an
"Obligor".
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
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364-DAY CREDIT AGREEMENT
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments, or other governmental
charges or levies that are not yet delinquent or are being contested in
compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlords, vendors, workmen, operators, and other like Liens arising in the
ordinary course of business or incident to the exploration, development,
operation, and maintenance of Hydrocarbons and related facilities and
assets and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance, and other
social security laws or regulations;
(d) deposits to secure the performance of bids, tenders, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds, and other obligations of a like nature, in each case in
the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, servitudes,
permits, conditions, exceptions, reservations, and similar encumbrances on
real property imposed by law or arising in the ordinary course of business
that do not secure any Indebtedness and do not materially interfere with
the ordinary conduct of business of the Borrower or any Restricted
Subsidiary;
(g) legal or equitable encumbrances deemed to exist by reason of
negative pledges such as in Section 6.02 of this Agreement or the existence
of any litigation or other legal proceeding and any related lis pendens
filing (excluding any attachment prior to judgment, judgment lien or
attachment lien in aid of execution on a judgment);
(h) rights of a common owner of any interest in property held by
Borrower or any Restricted Subsidiary as a common owner;
(i) farmout, carried working interest, joint operating, unitization,
royalty, overriding royalty, sales, and similar agreements relating to the
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364-DAY CREDIT AGREEMENT
exploration or development of, or production from, oil and gas properties
incurred in the ordinary course of business,
(j) Liens arising pursuant to Section 9.343 of the Texas Uniform
Commercial Code or other similar statutory provisions of other states with
respect to production purchased from others;
(k) any defects, irregularities, or deficiencies in title to
easements, rights-of-way, or other properties which do not in the aggregate
have a Material Adverse Effect;
(l) Liens on the stock or other ownership interest of or in any
Unrestricted Subsidiary, provided that there is no recourse to the Borrower
or any Restricted Subsidiary other than recourse to such stock or other
ownership interest and proceeds thereof;
(m) Liens in renewal or extension of any of the foregoing permitted
Liens, so long as limited to the property or assets encumbered and the
amounts of indebtedness secured immediately prior to such renewal or
extension is not increased; and
(n) Liens approved in writing by or on behalf of the Required Lenders.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Credit Exposures and
unused Commitments representing greater than 50% of the sum of the total Credit
Exposures and unused Commitments at such time.
"Restricted Subsidiaries" means all Subsidiary Guarantors and, without
duplication, all Subsidiaries of the Borrower that are not Unrestricted
Subsidiaries.
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364-DAY CREDIT AGREEMENT
"Revolving Commitment Termination Date" means the earliest of:
(a) the date occurring 364 days after the Effective Date;
(b) the date on which the Commitments are terminated in full or
reduced to zero pursuant to the terms of Section 2.09;
(c) the date on which the Commitments are terminated in full and
reduced to zero pursuant to the terms of Article VII.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"S&P" means Standard & Poor's.
"Sole Bookrunner" means J.P. Morgan Securities Inc.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by
the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guarantor" means any Subsidiary that is required to execute and
deliver a Subsidiary Guaranty.
"Subsidiary Guaranty" means a Subsidiary Guaranty substantially in the form
of Exhibit C executed by a Subsidiary.
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364-DAY CREDIT AGREEMENT
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Term Loans" means a Revolving Loan that is converted to a Term Loan
pursuant to Section 2.02.
"Total Cap" means, as of any date of determination, the sum of Total Debt
plus Consolidated Tangible Net Worth of the Borrower and the Restricted
Subsidiaries.
"Total Adjusted Debt" means as of any date of determination, all
Indebtedness (without duplication) of the Borrower and the Restricted
Subsidiaries on a consolidated basis (including any Indebtedness proposed to be
incurred on such date of determination and excluding all Indebtedness to be paid
on such date of determination with the proceeds thereof).
"Total Debt" means as of any date of determination, all Indebtedness
(without duplication) of the Borrower and the Restricted Subsidiaries on a
consolidated basis (including any Indebtedness proposed to be incurred on such
date of determination and excluding all Indebtedness to be paid on such date of
determination with the proceeds thereof and excluding any Indebtedness described
in clause (g) of the definition of Indebtedness herein).
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the guarantee by the Subsidiary Guarantors, if any, of the
obligations of the Borrower under this Agreement.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Borrower that at the time of determination
shall be designated an Unrestricted Subsidiary by a Financial Officer of the
Borrower in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary. A Financial Officer
may designate any Subsidiary of the Borrower (including any newly acquired or
newly formed Subsidiary of the Borrower and a Restricted Subsidiary but
excluding any Subsidiary Guarantor) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness
of, or owns or holds any Lien on any property of, the Borrower or any other
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364-DAY CREDIT AGREEMENT
Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so
designated. A Financial Officer may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary; provided, however, that (i) giving effect to such
designation shall not result in the occurrence and continuance of a Default and
(ii) any Indebtedness of such Subsidiary shall not be secured by Liens at the
time of such designation except for Liens permitted by Section 6.02. Any such
designation by a Financial Officer shall be evidenced to the Administrative
Agent by promptly filing with the Administrative Agent a copy of the resolution
of a Financial Officer giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
Section 1.03 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP (including but not limited to any
Statement of Financial Accounting Standards) or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
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364-DAY CREDIT AGREEMENT
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
Section 2.01 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans in dollars to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender's Credit Exposure exceeding such
Lender's Commitment or (ii) the sum of the total Credit Exposures exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans prior to the Revolving Commitment Termination Date.
Section 2.02 Conversion to Term Loans. At the option of the Borrower and
subject to the satisfaction of the conditions precedent for a Borrowing set
forth in Section 4.02, upon written notice delivered to the Administrative Agent
no earlier than 60 days and no later than three Business Days prior to the
Revolving Credit Termination Date, the aggregate principal amount of all, but
not less than all, of the Revolving Loans remaining outstanding at the close of
the Administrative Agent's business on the Revolving Credit Termination Date
shall automatically convert to Term Loans with a maturity of one year. Any
portion of each Lender's Commitment not utilized on or before the Revolving
Credit Termination Date shall be permanently cancelled. Any Term Loans that are
prepaid may not be reborrowed.
Section 2.03 Revolving Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option (but subject to Section 2.19)
may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
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364-DAY CREDIT AGREEMENT
equal to the entire unused balance of the total Commitments. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 10 Eurodollar Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, (i) the
Borrower shall not be entitled to request, or to elect to convert (except for a
conversion to a Term Loan pursuant to Section 2.02) or continue, any Revolving
Loan if the Interest Period requested thereto would end after the Revolving
Commitment Termination Date and (ii) the Borrower shall not be entitled to elect
to convert or continue any Eurodollar Loan after the Revolving Commitment
Termination Date if the Interest Period requested with respect thereto would end
after the Final Maturity Date.
Section 2.04 Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the date of the proposed
Borrowing and (b) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, on the same Business Day of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.03:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of Section
2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.05 Intentionally Omitted
Section 2.06 Intentionally Omitted
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364-DAY CREDIT AGREEMENT
Section 2.07 Funding of Borrowings.
(a) Each Lender shall make each Revolving Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 1:00 pm, New York City time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Revolving Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to the applicable Borrowing. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Revolving Loan included in such Borrowing.
Section 2.08 Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.04 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
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364-DAY CREDIT AGREEMENT
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.03:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
Section 2.09 Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on
the Revolving Commitment Termination Date.
(b) The Borrower may at any time during the Availability Period
terminate, or from time to time, reduce the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.11, the Credit Exposure
would exceed the Commitments.
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364-DAY CREDIT AGREEMENT
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Applicable Percentage.
Section 2.10 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Revolving Commitment Termination Date
(unless converted to Term Loans pursuant to Section 2.02) and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan on the Final Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section 2.10 shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and
substantially in the form attached hereto as Exhibit D. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
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364-DAY CREDIT AGREEMENT
Section 2.11 Prepayment of Loans.
(a) Subject to any breakage funding costs payable pursuant to Section
2.16, the Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part without premium or penalty, provided
that each prepayment is in an amount that is an integral multiple of $1,000,000
and not less than $5,000,000, or if such amount is lesser, the outstanding
amount of the Borrowing, and made subject to prior notice in accordance with
paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.03. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
Section 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable
Margin for commitment fees on the daily amount of the unused Commitment of such
Lender during the period from and including the date hereof to but excluding the
date on which such Commitment terminates. Accrued commitment fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
in writing between the Borrower and the Administrative Agent.
(c) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender on the date the Revolving Loans convert to Term Loans a
term loan fee equal to the product of 0.05% times such Lender's Applicable
Percentage of the Term Loans converted pursuant to Section 2.02.
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364-DAY CREDIT AGREEMENT
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and term loan fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
Section 2.13 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Margin, but not to exceed the Highest
Lawful Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin, but not to exceed the Highest Lawful Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section, but not to
exceed the Highest Lawful Rate.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent
and such determination shall be conclusive absent manifest error.
Section 2.14 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent Determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
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364-DAY CREDIT AGREEMENT
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that if the circumstances
giving rise to such notice affect only one Type of Borrowing, then the other
Type of Borrowing shall be permitted.
Section 2.15 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected
in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
(excluding, in each case, Taxes, as to which Section 2.17 shall govern) and the
result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any Eurodollar Loan (or of maintaining its obligation to
make any such Loan) or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
capital or on the capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth in reasonable detail the
amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower. The Borrower shall pay to the Administrative Agent
for the account of such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
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364-DAY CREDIT AGREEMENT
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section 2.15(d) for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
Section 2.16 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.11(b) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section in reasonable detail shall be
delivered to the Borrower. The Borrower shall pay to the Administrative Agent
for the account of such Lender the amount shown as due on any such certificate
within 10 days after receipt thereto.
Section 2.17 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
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364-DAY CREDIT AGREEMENT
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability in
reasonable detail shall be delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) Upon the Borrower's written request, the Administrative Agent and
each Lender shall use reasonable efforts to make any filings necessary to obtain
any refund, deduction or credit of any Taxes or Other Taxes as to which the
Borrower has indemnified it or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.17. If the Administrative Agent or
a Lender receives any material refund of any Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section 2.17, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.17 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrower or any other Person or to attempt to take any position to obtain a
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364-DAY CREDIT AGREEMENT
refund, deduction, or credit, which attempt would be inconsistent with any
reporting position otherwise taken by the Administrative Agent or such Lender on
its applicable tax returns.
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, or fees, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270
Park Avenue, New York, New York, except that payments pursuant to Section 9.03
shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
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364-DAY CREDIT AGREEMENT
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.07(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.19 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
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364-DAY CREDIT AGREEMENT
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
Section 3.01 Organization; Powers. Each of the Borrower and its Restricted
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section 3.02 Authorization; Enforceability. The Transactions are within
each Obligor's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement and all
Subsidiary Guaranties, if any, have been duly executed and delivered by the
Obligor, which is a party thereto, and constitute a legal, valid and binding
obligation of such Obligor, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do
not violate the charter, by-laws or other organizational documents of the
Borrower or any of its Restricted Subsidiaries or (b) except as to matters that
could not reasonably be expected to result in a Material Adverse Effect, (i) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (ii) will not violate any applicable
law or regulation or any order of any Governmental Authority, (iii) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Restricted Subsidiaries or
its assets, or give rise to a right thereunder to require any payment to be made
by the Borrower or any of its Restricted Subsidiaries, and (iv) will not result
in the creation or imposition of any Lien on any asset of the Borrower or any of
its Restricted Subsidiaries.
Section 3.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows (i) as of and for the fiscal year ended December 31, 2003, reported
on by Ernst & Young LLP, independent public accountants, and as of and for the
fiscal quarter and the portion of the fiscal year ended June 30, 2004, certified
by its Financial Officer. Such financial statements present fairly, in all
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364-DAY CREDIT AGREEMENT
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since December 31, 2003, through and including the Effective Date,
there has been no change which could reasonably be expected to have a Material
Adverse Effect.
Section 3.05 Properties. Each of the Borrower and its Restricted
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for any failure, defect
or other matter that could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
Section 3.06 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or, as of the Effective Date, that involve this Agreement or the
Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
Section 3.07 Compliance with Laws. Each of the Borrower and its Restricted
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is continuing.
Section 3.08 Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
Section 3.09 Taxes. Each of the Borrower and its Restricted Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes for which the Borrower or such Restricted
Subsidiary, as applicable, has set aside on its books adequate reserves
including, Taxes that are being contested in good faith by appropriate
proceedings or (b) to the extent that the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
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364-DAY CREDIT AGREEMENT
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The Borrower and each ERISA Affiliate has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. Neither the Borrower nor any ERISA Affiliate has (a) sought a waiver
of the minimum funding standard under Section 412 of the Code in respect of any
Plan, (b) failed to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan that has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code, or (c) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA that
are not past due.
Section 3.11 Disclosure. The information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished), taken as a whole, contains no
material misstatement of fact nor omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not materially misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
Section 3.12 Subsidiary Guarantees. No Subsidiary is a party to any
Guarantee of any Indebtedness included in the definition of Total Adjusted Debt,
except in compliance with Section 6.05(b).
ARTICLE IV
CONDITIONS
Section 4.01 Effective Date. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Mark Withrow, general counsel of the Borrower, and of
Thompson & Knight, LLP, outside counsel for the Borrower and Subsidiary
Guarantor, covering those matters described on Exhibit B. The Borrower hereby
requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
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364-DAY CREDIT AGREEMENT
authorization of the Transactions and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 4.02.
(e) The Administrative Agent, Lenders and the Lead Arranger shall have
received all fees and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 31, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
Section 4.02 Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement and of the Subsidiary Guarantors set forth in the Subsidiary
Guaranties, if any, shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
(c) Prior to the Mid-Investment Grade Date, there has been no change
since December 31, 2003 that has resulted in a Material Adverse Effect which is
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and, prior to the Mid-Investment Grade Date, (c) of this Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full the Borrower covenants and agrees with the Lenders that:
Section 5.01 Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent and each Lender:
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364-DAY CREDIT AGREEMENT
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year prepared on a basis consistent with that
used on Form 10Q as required by the Securities and Exchange Commission, all
certified by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) or (b) of this Section 5.01, a copy of the
certification signed by the principal executive officer and the principal
financial officer of the Borrower (each, a "Certifying Officer") as required by
Rule 13A-14 under the Securities Exchange Act of 1934 and a copy of the internal
controls disclosure statement by such Certifying Officers as required by Rule
13A-15 under the Securities Exchange Act of 1934 and Final Rules Release No.
33-8238 of the United States Securities and Exchange Commission, each as
included in the Borrower's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, for the applicable fiscal period;
(d) concurrently with any delivery of financial statements under
subsections (a) or (b) of this Section 5.01, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has occurred and,
if a Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, and (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.04(a) and (b);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be;
(f) promptly after Moody's or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
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364-DAY CREDIT AGREEMENT
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
Section 5.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that could reasonably be expected to result in
a Material Adverse Effect if adversely determined;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$25,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer of the Borrower setting forth the details of
the event or development requiring such notice and any action taken or proposed
to be taken with respect thereto.
Section 5.03 Existence; Conduct of Business. The Borrower will, and will
cause each of its Restricted Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business except for any failure to maintain, preserve or
qualify that could not reasonably be expected to have a Material Adverse Effect;
provided that the foregoing shall not prohibit (i) any merger, consolidation,
liquidation or dissolution permitted under Section 6.03 or (ii) a termination of
such existence, good standing, rights licenses, permits, privileges and
franchises of any Restricted Subsidiary if Borrower determines in good faith
that such termination is in the best interest of Borrower and could not
reasonably be expected to have a Material Adverse Effect.
Section 5.04 Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could reasonably be expected to result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, and (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP.
Section 5.05 Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Restricted Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except for any failure that could
reasonably be expected to result in a Material Adverse Effect and (b) maintain,
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364-DAY CREDIT AGREEMENT
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations.
Section 5.06 Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Restricted Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
Section 5.07 Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.08 Use of Proceeds. The proceeds of the Loans will be used for
general corporate purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X.
Section 5.09 Operations. Borrower will, and will cause each Restricted
Subsidiary to, maintain as its primary business the exploration, production and
development of oil, natural gas and other liquid and gaseous Hydrocarbons and
the gathering, processing, transmission and marketing of Hydrocarbons and
activities related or ancillary thereto.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Lenders that:
Section 6.01 Indebtedness.
(a) The Borrower will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist (collectively "incur")
any Indebtedness if the Borrower would be in breach of any covenant set forth in
Section 6.04 as a result of such incurrence.
(b) The Borrower will not permit any Restricted Subsidiary to incur
Indebtedness included in the definition of Total Adjusted Debt (including for
this purpose, the amount of such Indebtedness of the Borrower that is Guaranteed
by one or more Restricted Subsidiaries) except for (i) such Indebtedness
consisting of obligations, contingent or otherwise, in respect of letters of
credit outstanding at such time for all Restricted Subsidiaries in an aggregate
amount not exceeding $50,000,000 and (ii) other such Indebtedness (including
without limitation, obligations, contingent or otherwise, in respect of letters
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364-DAY CREDIT AGREEMENT
of credit in excess of the amount permitted by clause (i) of this Section
6.01(b)) outstanding at such time for all Restricted Subsidiaries in an
aggregate amount not exceeding $150,000,000.
Section 6.02 Liens. The Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the date hereof and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Restricted Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal
amount thereof;
(c) any Lien on any property or asset existing prior to the
acquisition thereof by the Borrower or any Subsidiary or on any property or
asset of any Person that becomes a Subsidiary after the date hereof existing
prior to the time such Person becomes a Restricted Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets of the Borrower or any
Restricted Subsidiary, and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(d) Liens created in connection with the acquisition, development,
construction or improvement by the Borrower or any Restricted Subsidiary of
fixed or capital assets; provided that (i) such Liens secure Indebtedness
permitted by Section 6.01 and all Indebtedness secured by Liens permitted by
this clause does not exceed $100,000,000 in the aggregate outstanding at any
time, (ii) such Liens and the Indebtedness secured thereby are incurred prior to
or within 180 days after such acquisition or the completion of such development,
construction or improvement, (iii) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, developing, constructing or improving such
fixed or capital assets and (iv) such Liens shall not apply to any property or
assets of the Borrower or any Restricted Subsidiary other than such fixed or
capital assets so acquired, developed, constructed or improved and other fixed
or capital assets that are developed or improved thereby or otherwise reasonably
related thereto (in the good faith determination of the Borrower) and working
capital assets related thereto (including but not limited to revenue from, and
insurance, condemnation, sale and other proceeds of, any such fixed or capital
assets); and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof.
(e) Liens securing obligations owing under this Agreement; and
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364-DAY CREDIT AGREEMENT
(f) Liens on deposits pursuant to any Swap Agreement entered into by
the Borrower or any Restricted Subsidiary in the ordinary course of its
business, not to exceed $100,000,000 in the aggregate amount outstanding at any
time.
Section 6.03 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary
Guarantor to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, (i) any Subsidiary Guarantors
may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any Person may merge into any Subsidiary Guarantors
in a transaction in which the surviving entity is a wholly-owned Subsidiary
Guarantor, (iii) any Person may merge into the Borrower in a transaction in
which the surviving entity is the Borrower and (iv) any Subsidiary Guarantors
may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders.
(b) The Borrower will not sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or all or substantially all of the stock of the Subsidiary
Guarantors (in each case, whether now owned or hereafter acquired) other than to
another Subsidiary Guarantor.
Section 6.04 Financial Covenants.
(a) The Borrower shall not permit, at any time, the ratio of Total
Debt to Total Cap to be greater than 0.60 to 1.0.
(b) The Borrower will not permit, as of the end of any fiscal quarter,
the ratio of the Borrower's Consolidated EBITDAX to its Consolidated Interest
Expense for the four fiscal quarters ending on such date to be less than 3.5 to
1.0.
Section 6.05 Investments, Loans, Advances, Guarantees and Acquisitions.
(a) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to make any loans or advances to, Guarantee any obligations of, or
make any investment or any other interest in, any Unrestricted Subsidiaries
except that the Borrower or any Restricted Subsidiaries may make loans or
advances to, or investments or other interests in Unrestricted Subsidiaries if
at the time of the making of such loan, advance, investment or other interest
the aggregate book value of assets (plus the aggregate amount of any non-cash
write downs therein under Statements of Financial Accounting Standard Nos. 19,
109, 142 and 144 (and any statements replacing, modifying, or superceding any
such Statement) after December 31, 2002, net of associate taxes) of the Borrower
and its Restricted Subsidiaries on a consolidated basis (excluding investments
in Unrestricted Subsidiaries) exceeds $2,750,000,000.
(b) No Subsidiary shall Guarantee any Indebtedness included in the
definition of Total Adjusted Debt, except for Indebtedness of a Restricted
Subsidiary permitted by Section 6.01(b), unless it shall have previously or
concurrently therewith executed and delivered a Subsidiary Guaranty to the
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364-DAY CREDIT AGREEMENT
Administrative Agent together with the items in Sections 4.01(b) and (c) as to
such Subsidiary Guarantor and the Subsidiary Guaranty.
Section 6.06 Swap Agreements. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the Borrower or
any Restricted Subsidiary has actual or projected exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), (b)
Swap Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or
investment of the Borrower or any Restricted Subsidiary and (c) other Swap
Agreements permitted under the risk management policies approved by the
Borrower's Board of Directors from time to time and not subjecting the Borrower
and its Restricted Subsidiaries to material speculative risks.
Section 6.07 Transactions with Affiliates. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transfers on fair and reasonable terms, and (b)
transactions between or among the Borrower and its wholly-owned Restricted
Subsidiaries not involving any other Affiliate.
Section 6.08 Restrictive Agreements. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or any
other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any
other Restricted Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by this Agreement, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.08 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition) and (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
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364-DAY CREDIT AGREEMENT
Article VII) payable under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of five
days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary Guarantor in or in connection with this
Agreement, any Subsidiary Guaranty, if any, or any amendment or modification
hereof or waiver hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement, or Subsidiary Guaranty, if any, or any amendment or
modification hereof or thereof or any waiver hereof or thereof, shall prove to
have been incorrect in any material respect when made or deemed made and either
(1) an Executive Officer of Borrower had actual knowledge that such
representation or warranty was false or incorrect in a material respect when
made or (2) if no Executive Officer had such knowledge, such representation or
warranty shall continue to be false or incorrect in any material respect thirty
(30) Business Days after the earlier of an Executive Officer of Borrower
obtaining actual knowledge thereof or written notice thereof shall have been
sent to Borrower by Administrative Agent or by any Lender;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, Section 5.03(with respect to
the Borrower's existence), or Section 5.08 or in Article VI;
(e) the Borrower or any Subsidiary Guarantor shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement or any
Subsidiary Guaranty, if any (other than those specified in clause (a), (b) or
(d) of this Article VII), and such failure shall continue unremedied for a
period of thirty days after notice thereof from the Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any
payment of principal or interest in respect of any Material Indebtedness (other
than in respect of any Swap Agreement), when and as the same shall become due
and payable or any event or condition occurs that results in any Material
Indebtedness (including in respect of any Swap Agreement) becoming due prior to
its scheduled maturity or that enables or permits the holder or holders of any
Material Indebtedness (other than in respect of any Swap Agreement) or any
trustee or agent on its or their behalf to cause such Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity, and such event or condition continues
beyond any applicable period of grace provided therefor, provided that this
clause (f) shall not apply to secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing such
Indebtedness to the extent such Indebtedness is paid when due;
(g) any event or condition occurs of the type customarily included as
an event of default under International Swap Dealers Association master
agreements (with respect to which the Borrower or any Restricted Subsidiary is
the defaulting party) that enables or permits the holder or holders of any
Material Indebtedness under a Swap Agreement to declare an early termination
date or otherwise cause such Material Indebtedness to become due prior to its
scheduled maturity and such event or condition continues beyond any applicable
period of grace provided therefor, except where such event or condition is being
contested in good faith;
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364-DAY CREDIT AGREEMENT
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Restricted Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Restricted Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article VII, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Restricted
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $75,000,000 shall be rendered against the Borrower, any
Restricted Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any material domestic assets of the Borrower or
any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to an Obligor
described in clause (h) or (i) of this Article VII), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
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364-DAY CREDIT AGREEMENT
event with respect to an Obligor described in clause (h) or (i) of this Article
VII, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.01 Administrative Agent. Each of the Lenders hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
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364-DAY CREDIT AGREEMENT
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article VIII and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
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364-DAY CREDIT AGREEMENT
Section 8.02 The Lead Arranger, Sole Bookrunner, and Co-Documentation
Agents. The Lead Arranger, Sole Bookrunner, and Co-Documentation Agents shall
have no duties, responsibilities or liabilities under this Agreement and the
other Loan Documents other than their duties, responsibilities and liabilities
in their capacity as Lenders hereunder.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to 5205 North O'Connor Boulevard, Suite 900,
Irving, Texas, 75039, Attention of Timothy L. Dove (Facsimile No. (972)
969-3572);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, 1111 Fannin Street, 10th Floor, Houston, Texas, 77002,
Attention of Ms. Janene English (Facsimile No. (713) 427-6307), with a copy to
JPMorgan Chase Bank, 600 Travis Street, 20th Floor, Houston, Texas 77002,
Attention of Mr. Peter Licalzi (Facsimile No. (713) 216-4117);
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
(d) Notices and communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto, or, in the
case of any Lender, to the Administrative Agent and the Borrower. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt.
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364-DAY CREDIT AGREEMENT
Section 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section
9.02, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither this Agreement, any provision hereof, nor any provisions
of the Subsidiary Guaranties, if any, may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall (i)
increase or extend the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.09 or Section
2.18(b) or (c) in a manner that would alter the pro rata treatment of Lenders or
pro rata sharing of payments required thereby, without the written consent of
each Lender, or (v) change any of the provisions of this Section 9.02 or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
Section 9.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Lead Arranger and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the Subsidiary Guaranties, if any, or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent or any
Lender, including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent or any Lender, in connection with the enforcement
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364-DAY CREDIT AGREEMENT
or protection of its rights in connection with this Agreement and the Subsidiary
Guaranties, if any, including its rights under this Section 9.03, or in
connection with the Loans made hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans. Attorneys' fees reimbursed by Borrower in
connection with the matters under clause (ii) above shall be for a single law
firm per country (unless conflicts (including conflicts between the
Administrative Agent, the Lead Arranger and the other Lenders as determined in
the reasonable discretion of the Required Lenders) otherwise prohibit the
engagement of a single law firm) plus a single local counsel in each
jurisdiction where local counsel is reasonably required.
(b) The Borrower shall indemnify the Administrative Agent, each Lender
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence, willful misconduct or breach of contractual undertaking of such
Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section 9.03, each Lender severally agrees to pay to the Administrative Agent,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section 9.03 shall be payable not later
than 30 days after written demand therefor.
Section 9.04 Successors and Assigns.
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364-DAY CREDIT AGREEMENT
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section 9.04. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants (to the extent
provided in paragraph (c) of this Section 9.04) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing, any
other assignee; and
(B) the Administrative Agent, provided that no consent of
the Administrative Agent shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to giving
effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Commitments or Loans;
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364-DAY CREDIT AGREEMENT
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire and comply with the
requirements of Section 2.17(e).
For the purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section 9.04, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section 9.04.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and owing to, each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section 9.04 and any written consent to such assignment required by
paragraph (b) of this Section 9.04, the Administrative Agent shall accept such
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364-DAY CREDIT AGREEMENT
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.04.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or Section 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.17
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
Section 9.05 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
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364-DAY CREDIT AGREEMENT
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
Section 9.06 Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.08 Governing Law; Jurisdiction; Consent to Service of Process.
(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 CONTRACT FOR, CHARGE, RECEIVE,
RESERVE OR TAKE INTEREST AT THE RATE ALLOWED BY THE LAWS OF THE STATE WHERE SUCH
LENDER IS LOCATED. CHAPTER 346 OF THE TEXAS FINANCE CODE (WHICH REGULATES
CERTAIN REVOLVING CREDIT LOAN ACCOUNTS AND REVOLVING TRI-PARTY ACCOUNTS) SHALL
NOT APPLY TO THIS AGREEMENT.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS
SHALL 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, EACH PARTY 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
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364-DAY CREDIT AGREEMENT
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 A PARTY FROM OBTAINING JURISDICTION OVER ANOTHER PARTY IN ANY COURT
OTHERWISE HAVING JURISDICTION.
(c) EACH PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT THE
ADDRESS SPECIFIED IN Section 9.01 OR SUCH OTHER ADDRESS AS IS SPECIFIED PURSUANT
TO Section 9.01 (OR ITS ASSIGNMENT AND ASSUMPTION), SUCH SERVICE TO BECOME
EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF A PARTY OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANOTHER PARTY IN ANY OTHER JURISDICTION.
SECTION 9.09 WAIVER OF JURY TRIAL. EACH PARTY 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 DOCUMENT
RELATED TO THIS AGREEMENT 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 OR COUNSEL
FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS, AND (iv) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION 9.09.
Section 9.10 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.11 Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants and legal
counsel (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
49
364-DAY CREDIT AGREEMENT
regulatory authority or any self-regulatory body claiming to have authority, (c)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process or authority, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section 9.11, to (i) any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, or (iii) to its advisors (other than its accountants and legal
counsel), (g) with the consent of the Borrower or (h) to the extent such
Information becomes publicly available other than as a result of a breach of
this Section. For the purposes of this Section 9.11, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the Borrower.
Notwithstanding anything herein to the contrary, any party to this Agreement
(and any employees, representatives and other agents of such party) may disclose
to any and all persons, without limitation of any kind (a) any information with
respect to the U.S. federal and state income tax treatment of the transactions
contemplated herein and any facts that may be relevant to understanding such tax
treatment, which facts shall not include for this purpose the names of the
parties or any other person named herein, or information that would permit
identification of the parties or such other persons, or any pricing terms or
other nonpublic business or financial information that is unrelated to such tax
treatment or facts, and (b) all materials of any kind (including opinions or
other tax analyses) relating to such tax treatment or facts that are provided to
any of the persons referred to above.
Section 9.12 Interest Rate Limitation. 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 the Agreement or the Subsidiary Guaranties, if any, 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 the Agreement or the Subsidiary Guaranties, if
any, shall under no circumstances exceed the maximum amount allowed by such
applicable law, and any excess shall be canceled 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
Borrower); and (ii) 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 canceled 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 Borrower). 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 stated term of the Loans until payment in
50
364-DAY CREDIT AGREEMENT
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 9.12 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
9.12. To the extent that Chapter 303 of the Texas Finance Code is relevant for
the purpose of determining the Highest Lawful Rate applicable to a Lender, such
Lender elects to determine the applicable rate ceiling under such Chapter by the
weekly ceiling from time to time in effect. Chapter 346 of the Texas Finance
Code does not apply to the Borrower's obligations hereunder.
Section 9.13 USA Patriot Act Notice. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
[SIGNATURE PAGES BEGIN NEXT PAGE]
51
364-DAY CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Borrower: PIONEER NATURAL RESOURCES COMPANY
- --------
By: /s/ Timothy L. Dove
-------------------------------------
Timothy L. Dove
Executive Vice President and
Chief Financial Officer
Administrative Agent & Lender: JPMORGAN CHASE BANK
- -----------------------------
By: /s/ Robert C. Mertensotto
-------------------------------------
Robert C. Mertensotto
Managing Director
Lead Arranger and Sole Bookrunner: J.P. MORGAN SECURITIES INC.
- ---------------------------------
By: /s/ George M. Serice
-------------------------------------
Name: George M. Serice
Title: Vice President
Lender and Co-Documentation Agent: BANK OF AMERICA, N.A.
- ---------------------------------
By: /s/ Richard L. Stein
-------------------------------------
Name: Richard L. Stein
Title: Principal
Signature Page 1
364-DAY CREDIT AGREEMENT
Lender and Co-Documentation Agent: BARCLAYS BANK PLC
- ---------------------------------
By: /s/ Nicholas A. Bell
-------------------------------------
Name: Nicholas A. Bell
Title: Director
Loan Transaction Management
Lender and Co-Documentation Agent: WACHOVIA BANK, NATIONAL ASSOCIATION
- ---------------------------------
By: /s/ David Humphreys
-------------------------------------
Name: David Humphreys
Title: Director
Lender and Co-Documentation Agent: WELLS FARGO BANK, NATIONAL ASSOCIATION
- ---------------------------------
By: /s/ David C. Brooks
-------------------------------------
Name: David C. Brooks
Title: Vice President
Signature Page 2
364-DAY CREDIT AGREEMENT
Lenders: ABN AMRO
- -------
By: /s/ John D. Reed
-------------------------------------
Name: John D. Reed, CFA
Title: Vice President
By: /s/ Scott Donaldson
-------------------------------------
Name: Scott Donaldson
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By: /s/ John W. Wade
-------------------------------------
Name: John W. Wade
Title: Director
HARRIS NESBITT FINANCING, INC.
By: /s/ James V. Ducote
-------------------------------------
Name: James V. Ducote
Title: Vice President
BNP PARIBAS
By: /s/ David Dodd
-------------------------------------
Name: David Dodd
Title: Director
By: /s/ Betsy Jocher
-------------------------------------
Name: Betsy Jocher
Title: Vice President
Signature Page 3
364-DAY CREDIT AGREEMENT
CALYON NEW YORK BRANCH
By: /s/ Olivier Audemard
-------------------------------------
Name: Olivier Audemard
Title: Managing Director
CITIBANK, N.A.
By: /s/ Joronne Jeter
-------------------------------------
Name: Joronne Jeter
Title: Attorney-in-Fact
CREDIT SUISSE FIRST BOSTON
acting through its Cayman Islands Branch
By: /s/ Paul L. Colon
-------------------------------------
Name: Paul L. Colon
Title: Director
By: /s/ Vanessa Gomez
-------------------------------------
Name: Vanessa Gomez
Title: Associate
Signature Page 4
364-DAY CREDIT AGREEMENT
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Joel Makowsky
-------------------------------------
Name: Joel Makowsky
Title: Director
By: /s/ Michael Starmer-Smith
-------------------------------------
Name: Michael Starmer-Smith
Title: Managing Director
DNB NOR BANK ASA
By: /s/ Peter M. Dodge
-------------------------------------
Name: Peter M. Dodge
Title: First Vice President
By: /s/ Stig Kristiansen
-------------------------------------
Name: Stig Kristiansen
Title: Vice President
KBC BANK N.V.
By: /s/ Jean-Pierre Diels
-------------------------------------
Name: Jean-Pierre Diels
Title: First Vice President
By: /s/ Eric Raskin
-------------------------------------
Name: Eric Raskin
Title: Vice President
Signature Page 5
364-DAY CREDIT AGREEMENT
MIZUHO CORPORATE BANK (USA)
By: /s/ Raymond Ventura
-------------------------------------
Name: Raymond Ventura
Title: Senior Vice President
SUNTRUST BANK
By: /s/ James M. Warren
-------------------------------------
Name: James M. Warren
Title: Director
THE BANK OF NEW YORK
By: /s/ Craig J. Anderson
-------------------------------------
Name: Craig J. Anderson
Title: Vice President
Signature Page 6
364-DAY CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ William E. Zarrett
-------------------------------------
Name: William E. Zarrett
Title: Managing Director
SCOTIABANC INC.
By: /s/ William E. Zarrett
-------------------------------------
Name: William E. Zarrett
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.
By: /s/ Neva Nesbitt
-------------------------------------
Name: Neva Nesbitt
Title: Vice President
UFJ BANK LIMITED
By: /s/ Seiji Tate
-------------------------------------
Name: Seiji Tate
Title: AVP
Signature Page 7
364-DAY CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Damien Meiburger
-------------------------------------
Name: Damien Meiburger
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Kathryn A. Gaiter
-------------------------------------
Name: Kathryn A. Gaiter
Title: Vice President
Signature Page 8
364-DAY CREDIT AGREEMENT
SCHEDULE 2.01
COMMITMENTS
Lender Amount of Percentage of Total
Commitment Commitments
- -------------------------------------------- ---------------- -------------------
JPMorgan Chase Bank $50,000,000.00 5.5555555%
Bank of America, N.A. $50,000,000.00 5.5555555%
Barclays Bank PLC $50,000,000.00 5.5555555%
BNP Paribas $50,000,000.00 5.5555555%
Calyon New York Branch $50,000,000.00 5.5555555%
Citibank, N.A. $50,000,000.00 5.5555555%
Suntrust Bank $50,000,000.00 5.5555555%
UFJ Bank Limited $50,000,000.00 5.5555555%
Wachovia Bank, National Association $50,000,000.00 5.5555555%
Wells Fargo Bank, National Association $50,000,000.00 5.5555555%
ABN AMRO $34,000,000.00 3.7777778%
Australia and New Zealand Bank Group Limited $34,000,000.00 3.7777778%
Harris Nesbitt Financing, Inc. $34,000,000.00 3.7777778%
Credit Suisse First Boston $34,000,000.00 3.7777778%
Deutsche Bank AG New York Branch $34,000,000.00 3.7777778%
Mizuho Corporate Bank (USA) $34,000,000.00 3.7777778%
Union Bank of California, N.A. $34,000,000.00 3.7777778%
U.S. Bank, National Association $34,000,000.00 3.7777778%
The Bank of Nova Scotia $30,000,000.00 3.3333333%
DNB Nor Bank ASA $21,000,000.00 2.3333333%
KBC Bank $21,000,000.00 2.3333333%
The Bank of New York $21,000,000.00 2.3333333%
Scotiabanc Inc. $20,000,000.00 2.2222222%
Toronto Dominion $15,000,000.00 1.6666666%
TOTAL: $900,000,000.00 100.000000000%
Schedule 2.01
364-DAY CREDIT AGREEMENT
SCHEDULE 3.06
DISCLOSED MATTERS
John Stephen Alford and Robert Larrabee, individually and on behalf of Plaintiff
Class v. Mesa Inc., Hugoton Capital Limited Partnership, Mesa Operating Limited
Partnership, No. 93 CV 37; 26th District Court of Stevens County, KS Civil
Department.
United States of America, Federal Energy Regulatory Commission, Southern Star
Central Gas Pipeline, Inc. Docket Nos. RP98-52-051, et al. and Panhandle Eastern
Pipe Line Company, et al. Docket No. RP98-40 et al.
Schedule 3.06
364-DAY CREDIT AGREEMENT
SCHEDULE 6.02
LIENS
NONE
Schedule 6.02
364-DAY CREDIT AGREEMENT
SCHEDULE 6.08
EXISTING RESTRICTIVE AGREEMENTS
NONE
Schedule 6.08
364-DAY CREDIT AGREEMENT
EXHIBIT A
FORM OF
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption")
is dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the 364-Day Credit Agreement identified below (as
amended, the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date inserted
by the Administrative Agent as contemplated below (i) all of the Assignor's
rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any guarantees included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor (in
its capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as
the "Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor:
------------------------------
2. Assignee:
------------------------------
[and is an Affiliate/Approved Fund of
[identify Lender]1]
3. Borrower(s):
-----------------------------=
4. Administrative Agent:
----------------------, as the administrative
agent under the Credit Agreement
- -----------------------
1 Select as applicable.
Exhibit A-1
364-DAY CREDIT AGREEMENT
5. Credit Agreement: The 364-Day Credit Agreement dated as of
September 28, 2004 among Pioneer Natural
Resources Company, a Delaware corporation, as
the Borrower, JPMorgan Chase Bank, as
Administrative Agent, the Lenders party
thereto, Bank of America, N.A., Barclays
Bank Plc, Wells Fargo Bank, National
Association, and Wachovia Bank, National
Association, as Lender and Co-Documentation
Agents, and J.P. Morgan Securities Inc., as
Lead Arranger and Sole Bookrunner
6. Assigned Interest:
- ----------------------------------------------------------------------------------------------
Facility Assigned2 Aggregate Amount of Amount of Percentage Assigned of
Commitment/Loans for Commitment/Loans Commitment/Loans3
all Lenders Assigned
- ----------------------------------------------------------------------------------------------
$ $ %
- ---------------------- ----------------------- ------------------ -------------------------
$ $ %
- ---------------------- ----------------------- ------------------ -------------------------
$ $ %
- ----------------------------------------------------------------------------------------------
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------
Title:
- --------------------
2 Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g.
"Commitment," "Term Loan," etc.)
3 Set forth, to at least 9 decimals, as a percantage of the Commitment/Loans of
all Lenders thereunder.
Exhibit A-2
364-DAY CREDIT AGREEMENT
Consented to and Accepted:
JPMORGAN CHASE BANK, as
Administrative Agent
By
-------------------------------
Title:
Consented to:
[NAME OF RELEVANT PARTY]
By
-------------------------------
Title:
Exhibit A-3
364-DAY CREDIT AGREEMENT
ANNEX 1
[__________________]4
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section ___ thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender5, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to but excluding the Effective Date and to the
Assignee for amounts which have accrued from and after the Effective Date.
- -------------------
4 Describe Credit Agreement at option of Administrative Agent.
5 The concept of "Foreign Lender" should be conformed to the section in the
Credit Agreement governing withholding taxes and gross-up.
Exhibit A-4
364-DAY CREDIT AGREEMENT
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Texas.
Exhibit A-5
364-DAY CREDIT AGREEMENT
EXHIBIT B
FORM OF
OPINION OF BORROWER'S COUNSEL
To be in a form substantially similar to the opinion of Borrower's counsel
pursuant to that certain 5-Year Revolving Credit Agreement dated as of June 9,
2004 among Pioneer Natural Resources Company, as Borrower, JPMorgan Chase Bank,
as Administrative Agent, JPMorgan Chase Bank and Bank of America, N.A., as
Issuing Banks and the Lenders party thereto, as amended.
Exhibit B
364-DAY CREDIT AGREEMENT
EXHIBIT C
FORM OF
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is dated as of [ ], 2004 made by [ ], a
[ ] (the "Subsidiary Guarantor"), in favor of JPMorgan Chase Bank, as
administrative agent (in such capacity, together with its successors in such
capacity, the "Administrative Agent"), for the banks and other financial
institutions (the "Lenders") from time to time parties to the 364-Day Credit
Agreement dated as of September 28, 2004 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Pioneer Natural
Resources Company (the "Borrower"), the Administrative Agent, the Lenders party
thereto, Bank of America, N.A., Barclays Bank Plc, Wells Fargo Bank, National
Association, and Wachovia Bank, National Association, as Lender and Co-
Documentation Agents, and J.P. Morgan Securities Inc, as Lead Arranger and
Sole Bookrunner.
R E C I T A L S
A. The Borrower has requested that the Lenders provide certain loans to
and extensions of credit on behalf of the Borrower.
B. The Lenders have agreed to make such loans and extensions of credit
subject to the terms and conditions of the Credit Agreement.
C. It is a condition precedent to the obligation of the Lenders to make
their respective extensions of credit to the Borrower under the Credit Agreement
(or an ongoing covenant of the Borrower under the Credit Agreement) that the
Subsidiary Guarantor shall have executed and delivered this Subsidiary Guaranty
to the Administrative Agent for the benefit of the Lenders.
D. NOW, THEREFORE, in consideration of the premises herein and to
induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, the Subsidiary Guarantor hereby agrees with
the Administrative Agent, for the benefit of the Lenders, as follows:
Section 1. Definitions. Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein have the meanings given to them in the
Credit Agreement. The following terms have the following meanings:
"Liabilities" means the collective reference to the payment and
performance when due of all indebtedness, liabilities, obligations and
undertakings of the Borrower (including, without limitation, all Indebtedness)
of every kind or description arising out of or outstanding under, advanced or
issued pursuant to, or evidenced by, the Loan Documents, including, without
limitation, the unpaid principal of and interest on the Loans and all other
obligations and liabilities of the Borrower (including, without limitation,
interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
Exhibit C-1
364-DAY CREDIT AGREEMENT
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) to the
Guaranteed Creditors, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, arising out of or outstanding
under, advanced or issued pursuant, or evidenced by, the Loan Documents, whether
on account of principal, interest, premium, reimbursement obligations, payments
in respect of an early termination date, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all costs, fees and disbursements of
counsel to the Guaranteed Creditors that are required to be paid by the Borrower
pursuant to the terms of any Loan Documents).
"Guaranteed Creditors" means the collective reference to the
Administrative Agent and the Lenders.
Section 2. Rules of Interpretation. Section 1.03 and Section 1.04 of
the Credit Agreement are hereby incorporated herein by reference and shall apply
to this Agreement, mutatis mutandis.
Section 3. Guaranty of Payments. The Subsidiary Guarantor
unconditionally and irrevocably guarantees to the Guaranteed Creditors the
punctual payment of the Liabilities, when the same are due and payable, whether
on demand, at stated maturity, by acceleration or otherwise, and whether for
principal, interest, fees, expenses, indemnification or otherwise; provided that
the maximum liability of the Subsidiary Guarantor shall not exceed the amount
which can be guaranteed by the Subsidiary Guarantor under applicable federal and
state laws relating to the insolvency of debtors; provided, further, however, it
is understood that the obligations of the Borrower to the Guaranteed Creditors
may at any time and from time to time exceed the liability of the Subsidiary
Guarantor hereunder without impairing this Subsidiary Guaranty and the
Subsidiary Guarantor and the Guaranteed Creditors agree, as between themselves,
that regardless of the manner of application of payments made by the Borrower to
the Guaranteed Creditors, all such payments shall be deemed to be applied first
to the portion of the obligations of the Borrower to the Guaranteed Creditors
which are not guaranteed hereunder and last to the portion of such obligations
which are guaranteed hereunder. This Subsidiary Guaranty is a guaranty of
payment and not of collection only. The Guaranteed Creditors shall not be
required to exhaust any right or remedy or take any action against the Borrower
or any other person or entity or any collateral. The Subsidiary Guarantor agrees
that, as between the Subsidiary Guarantor and the Guaranteed Creditors, the
Liabilities may be declared to be due and payable for the purposes of this
Subsidiary Guaranty notwithstanding any stay, injunction or other prohibition
which may prevent, delay or vitiate any declaration as regards the Borrower and
that in the event of a declaration or attempted declaration, the Liabilities
shall immediately become due and payable by the Subsidiary Guarantor for the
purposes of this Subsidiary Guaranty. No payment made by any Obligor or any
other Person or received or collected by the Guaranteed Creditors from any
Obligor or any other Person by virtue of any action or proceeding or any set-off
or appropriation or application at any time or from time to time in reduction of
or in payment of the Liabilities shall be deemed to modify, reduce, release or
otherwise affect the liability of any Subsidiary Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Subsidiary Guarantor in respect of the Liabilities or any payment received or
collected from such Subsidiary Guarantor in respect of the Liabilities), remain
Exhibit C-2
364-DAY CREDIT AGREEMENT
liable for the Liabilities up to the maximum liability of such Subsidiary
Guarantor hereunder until the Liabilities are paid in full in cash and all of
the Commitments are terminated.
Section 4. Guaranty Absolute and Unconditional. The Subsidiary
Guarantor guarantees that the Liabilities shall be paid strictly in accordance
with the terms of the Loan Documents. The liability of the Subsidiary Guarantor
under this Subsidiary Guaranty is absolute and unconditional irrespective of:
(a) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Loan Documents or Liabilities, or any other amendment or
waiver of or any consent to departure from any of the terms of any Loan Document
or Liabilities, including any increase or decrease in the rate of interest
thereon; (b) any release or amendment or waiver of, or consent to departure
from, any other guaranty or support document, or any exchange, release for all
or any of the Loan Documents or Liabilities; (c) any present or future law,
regulation or order of any jurisdiction (whether of right or in fact) or of any
agency thereof purporting to reduce, amend, restructure or otherwise affect any
term of any Loan Document or Liabilities; (d) without being limited by the
foregoing, any lack of validity or enforceability of any Loan Document or
Liabilities; (e) the insolvency, bankruptcy arrangement, reorganization,
adjustment, composition, liquidation, disability, dissolution or lack of power
of the Borrower , any Subsidiary Guarantor or any other Person at any time
liable for the payment of all or part of the Liabilities, including any
discharge of, or bar or stay against collecting, any Liability (or any part of
them or interest therein) in or as a result of such proceeding; (f) any sale,
lease or transfer of any or all of the assets of the Borrower or any other
Subsidiary Guarantor, or any changes in the shareholders of the Borrower or the
Subsidiary Guarantor; any change in the corporate existence (including its
constitution, laws, rules, regulations or power), structure or ownership of any
Obligor; (g) the absence of any attempt to collect the Obligations or any part
of them from any Obligor; (h) any sale, exchange, waiver, surrender or release
of any guarantee or right of offset at any time held by the Guaranteed Creditors
for the payment of the Liabilities; (i) the addition, from time to time, of any
guarantors, makers or endorsers of the Liabilities, or of any additional
security or collateral for the payment of the Liabilities; and (j) any other
setoff, defense or counterclaim whatsoever, or any other circumstance or act
whatsoever with respect to the Loan Documents or the transactions contemplated
thereby which might constitute or be construed to constitute a legal or
equitable defense available to, or discharge of, the Borrower or a Subsidiary
Guarantor under the Credit Agreement or this Subsidiary Guaranty, in bankruptcy
or in any other instance (in any case, except a defense of payment or
performance, whether based on contract, tort or any other theory). When making
any demand hereunder or otherwise pursuing their rights and remedies hereunder
against any Subsidiary Guarantor, the Guaranteed Creditors may, but shall be
under no obligation to, join or make a similar demand on or otherwise pursue or
exhaust such rights and remedies as they may have against the Borrower, any
other Subsidiary Guarantor or any other Person or against any guarantee for the
Liabilities or any right of offset with respect thereto, and any failure by the
Guaranteed Creditors to make any such demand, to pursue such other rights or
remedies or to collect any payments from the Borrower, any other Subsidiary
Guarantor or any other Person or to realize upon any such guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Subsidiary Guarantor or any other Person or any such guarantee or right of
offset, shall not relieve any Subsidiary Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
Exhibit C-3
364-DAY CREDIT AGREEMENT
whether express, implied or available as a matter of law, of the Guaranteed
Creditors against any Subsidiary Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
Section 5. Guaranty Irrevocable. This Subsidiary Guaranty is a
continuing guaranty of all Liabilities now or hereafter existing under the Loan
Documents and shall remain in full force and effect until payment in full of all
Liabilities and other amounts payable under this Subsidiary Guaranty and until
the Loan Documents are no longer in effect.
Section 6. Reinstatement. This Subsidiary Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time any payment, or
any part thereof, of any of the Liabilities is rescinded or must otherwise be
returned by the Guaranteed Creditors on the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Subsidiary Guarantor, all
as though the payment had not been made.
Section 7. No Subrogation. Notwithstanding any payment made by any
Subsidiary Guarantor hereunder or any set-off or application of funds of any
Subsidiary Guarantor by the Guaranteed Creditors, no Subsidiary Guarantor shall
be entitled to be subrogated to any of the rights of the Guaranteed Creditors
against the Borrower or any other Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by any Guaranteed Creditor for the
payment of the Liabilities, nor shall any Subsidiary Guarantor seek or be
entitled to seek any indemnity, exoneration, participation, contribution or
reimbursement from the Borrower or any other Subsidiary Guarantor in respect of
payments made by such Subsidiary Guarantor hereunder, until all amounts owing to
the Guaranteed Creditors on account of the Liabilities are irrevocably and
indefeasibly paid in full in cash and all of the Commitments are terminated. If
any amount shall be paid to any Subsidiary Guarantor on account of such
subrogation rights at any time when all of the Liabilities shall not have been
irrevocably and indefeasibly paid in full in cash or any of the Commitments are
in effect, such amount shall be held by such Subsidiary Guarantor in trust for
the Guaranteed Creditors, and shall, forthwith upon receipt by such Subsidiary
Guarantor, be turned over to the Administrative Agent in the exact form received
by such Subsidiary Guarantor (duly indorsed by such Subsidiary Guarantor to the
Administrative Agent, if required), to be applied against the Liabilities,
whether matured or unmatured, as determined by the Administrative Agent.
Section 8. Subordination. Without limiting the Guaranteed Creditors'
rights under any other agreement, any liabilities owed by the Borrower to the
Subsidiary Guarantor in connection with any extension of credit or financial
accommodation by the Subsidiary Guarantor to or for the account of the Borrower,
including but not limited to interest accruing at the agreed contract rate after
the commencement of a bankruptcy or similar proceeding, are hereby subordinated
to the Liabilities upon the occurrence of an Event of Default, and, in such an
event such liabilities of the Borrower to the Subsidiary Guarantor, if the
Administrative Agent so requests, shall be collected, enforced and received by
the Subsidiary Guarantor as trustee for the Guaranteed Creditors and shall be
paid over to the Administrative Agent for the benefit of the Guaranteed
Creditors on account of the Liabilities (but only to the extent due and payable
but without reducing or affecting in any manner the liability of the Subsidiary
Guarantor under the other provisions of this Subsidiary Guaranty.
Exhibit C-4
364-DAY CREDIT AGREEMENT
Section 9. Payments Generally. All payments by the Subsidiary Guarantor
shall be made in the manner, at the place and in the currency (the "Payment
Currency") required by the Loan Documents; provided, however, that (if the
Payment Currency is other than U.S. dollars) the Subsidiary Guarantor may, at
its option (or, if for any reason whatsoever the Subsidiary Guarantor is unable
to effect payments in the foregoing manner, the Subsidiary Guarantor shall be
obligated to) pay to the Administrative Agent at its principal office, for the
benefit of the Guaranteed Creditors, the equivalent amount in U.S. dollars
computed at the selling rate of the Administrative Agent or a selling rate
chosen by the Administrative Agent, most recently in effect on or prior to the
date the Liability becomes due, for cable transfers of the Payment Currency to
the place where the Liability is payable. In any case in which the Subsidiary
Guarantor makes or is obligated to make payment in U.S. dollars, the Subsidiary
Guarantor shall hold the Administrative Agent and the Guaranteed Creditors
harmless from any loss incurred by the Administrative Agent or the Guaranteed
Creditors arising from any change in the value of U.S. dollars in relation to
the Payment Currency between the date the Liability becomes due and the date the
Guaranteed Creditors are actually able, following the conversion of the U.S.
dollars paid by the Subsidiary Guarantor into the Payment Currency and
remittance of such Payment Currency to the place where such Liability is
payable, to apply such Payment Currency to such Liability.
Section 10. Certain Taxes. The Subsidiary Guarantor further agrees that
all payments to be made hereunder shall be made without setoff or counterclaim
and free and clear of, and without deduction for, any Indemnified Taxes and
Other Taxes. If any Indemnified Taxes and Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent for the benefit of
the Guaranteed Creditors hereunder, the amounts so payable to the Administrative
Agent for the benefit of the Guaranteed Creditors shall be increased to the
extent necessary to yield to the Guaranteed Creditors (after payment of all
Indemnified Taxes and Other Taxes) the amounts payable hereunder in the full
amounts so to be paid. Whenever any Indemnified Taxes and Other Taxes are paid
by the Subsidiary Guarantor, as promptly as possible thereafter, the Subsidiary
Guarantor shall send the Administrative Agent an official receipt showing
payment thereof, together with such additional documentary evidence as may be
required from time to time by the Administrative Agent.
Section 11. Representations and Warranties. The Subsidiary Guarantor
represents and warrants that: (a) this Subsidiary Guaranty (i) has been
authorized by all necessary corporate action; (ii) except as to matters that
could not reasonably be expected to result in a Material Adverse Effect, does
not violate any agreement, instrument, law, regulation or order applicable to
the Subsidiary Guarantor; (iii) does not require the consent or approval of,
registration or filing with, or any other action by, any Governmental Authority;
and (iv) is the legal, valid and binding obligation of the Subsidiary Guarantor
enforceable against the Subsidiary Guarantor in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium, or
other laws affecting creditors' rights generally and subject to general
principles of equity regardless of whether considered in a proceeding in equity
or at law; and (b) in executing and delivering this Subsidiary Guaranty, the
Subsidiary Guarantor has (i) without reliance on the Administrative Agent or the
Guaranteed Creditors or any information received from the Administrative Agent
or the Guaranteed Creditors and based upon such documents and information it
deems appropriate, made an independent investigation of the transactions
contemplated hereby and the Borrower, the Borrower's business, assets,
operations, prospects and condition, financial or otherwise, and any
Exhibit C-5
364-DAY CREDIT AGREEMENT
circumstances which may bear upon such transactions, the Borrower or the
obligations and risks undertaken herein with respect to the Liabilities; (ii)
adequate means to obtain from the Borrower on a continuing basis information
concerning the Borrower; (iii) has full and complete access to the Loan
Documents and any other documents executed in connection with the Loan
Documents; and (iv) not relied and will not rely upon any representations or
warranties of the Administrative Agent or the Guaranteed Creditors not embodied
herein or any acts heretofore or hereafter taken by the Administrative Agent or
the Guaranteed Creditors (including but not limited to any review by the
Administrative Agent or the Guaranteed Creditors of the affairs of the
Borrower).
Section 12. Remedies Generally. The remedies provided in this
Subsidiary Guaranty are cumulative and not exclusive of any remedies provided by
law.
Section 13. Formalities. The Subsidiary Guarantor waives presentment,
notice of dishonor, protest, notice of acceptance of this Subsidiary Guaranty or
incurrence of any Liability and any other formality with respect to any of the
Liabilities or this Subsidiary Guaranty.
Section 14. Amendments and Waivers to Guaranty. No amendment or waiver
of any provision of this Subsidiary Guaranty, nor consent to any departure by
the Subsidiary Guarantor therefrom, shall be effective unless it is in writing
and signed by each of the Guaranteed Creditors, and then the waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of the Guaranteed Creditors to exercise,
and no delay in exercising, any right under this Subsidiary Guaranty shall
operate as a waiver or preclude any other or further exercise thereof or the
exercise of any other right. Each Subsidiary Guarantor hereby waives any and all
notice of the creation, renewal, extension or accrual of any of the Liabilities
and notice of or proof of reliance by the Guaranteed Creditors upon this
Subsidiary Guaranty or acceptance of this Subsidiary Guaranty; the Liabilities,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Subsidiary Guaranty and no notice of creation of the Liabilities or any
extension of credit already or hereafter contracted by or extended to the
Borrower need be given to any Subsidiary Guarantor; and all dealings between the
Borrower and any of the Subsidiary Guarantors, on the one hand, and the
Guaranteed Creditors, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Subsidiary Guaranty. Each
Subsidiary Guarantor waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Borrower or any of the
Subsidiary Guarantors with respect to the Liabilities.
Section 15. Expenses. The Subsidiary Guarantor shall reimburse the
Administrative Agent for the benefit of the Guaranteed Creditors on demand for
all reasonable out-of-pocket expenses (including without limitation reasonable
fees, charges and disbursements of any counsel for the Guaranteed Creditors)
incurred by the Guaranteed Creditors in connection with the enforcement of this
Subsidiary Guaranty. Attorneys' fees reimbursed by the Subsidiary Guarantor in
connection with this Subsidiary Guaranty shall be for a single law firm per
country (unless conflicts (including conflicts between the Administrative Agent,
the Lead Arranger and the other Lenders as determined in the reasonable
Exhibit C-6
364-DAY CREDIT AGREEMENT
discretion of the Required Lenders) otherwise prohibit the engagement of a
single law firm) plus a single local counsel in each jurisdiction where local
counsel is reasonably required.
Section 16. Assignment. This Subsidiary Guaranty shall be binding on,
and shall inure to the benefit of the Subsidiary Guarantor, the Administrative
Agent and the Guaranteed Creditors and their respective successors and assigns;
provided that the Subsidiary Guarantor may not assign or transfer its rights or
obligations under this Subsidiary Guaranty. Without limiting the generality of
the foregoing: (a) the obligations of the Subsidiary Guarantor under this
Subsidiary Guaranty shall continue in full force and effect and shall be binding
on any successor partnership and on previous partners and their respective
estates if the Subsidiary Guarantor is a partnership, regardless of any change
in the partnership as a result of death retirement or otherwise; and (b) the
Guaranteed Creditors may assign, sell participations in or otherwise transfer
their rights under the Loan Documents to another person or entity to the extent
expressly permitted by Section 9.04 of the Credit Agreement, and the other
person or entity shall then become vested with all the rights granted to the
Guaranteed Creditors in this Subsidiary Guaranty or otherwise.
Section 17. Captions. The headings and captions in this Subsidiary
Guaranty are for convenience only and shall not affect the interpretation or
construction of this Subsidiary Guaranty.
Section 18. Governing Law, Etc. THIS SUBSIDIARY GUARANTY SHALL BE
GOVERNED BY THE LAW OF THE STATE OF TEXAS. THE SUBSIDIARY GUARANTOR CONSENTS TO
THE NONEXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS LOCATED
IN THE STATE OF TEXAS. SERVICE OF PROCESS BY THE BANK IN CONNECTION WITH ANY
SUCH DISPUTE SHALL BE BINDING ON THE SUBSIDIARY GUARANTOR IF SENT TO THE
SUBSIDIARY GUARANTOR BY REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW OR AS
OTHERWISE SPECIFIED BY THE SUBSIDIARY GUARANTOR FROM TIME TO TIME. THE
SUBSIDIARY GUARANTOR WAIVES ANY RIGHT THE SUBSIDIARY GUARANTOR MAY HAVE TO JURY
TRIAL IN ANY ACTION RELATED TO THIS SUBSIDIARY GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND FURTHER WAIVES ANY RIGHT TO INTERPOSE ANY COUNTERCLAIM
RELATED TO THIS SUBSIDIARY GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY IN
ANY SUCH ACTION. TO THE EXTENT THAT THE SUBSIDIARY GUARANTOR HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL
PROCESS (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR OTHERWISE), THE
SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS SUBSIDIARY GUARANTY.
Section 19. Integration; Effectiveness. THIS WRITTEN SUBSIDIARY
GUARANTY EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE LENDERS AND
THE SUBSIDIARY GUARANTOR AND SUPERSEDES ALL OTHER AGREEMENTS AND UNDERSTANDINGS
BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF. THIS WRITTEN
Exhibit C-7
364-DAY CREDIT AGREEMENT
SUBSIDIARY GUARANTY REPRESENTS 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.
IN WITNESS WHEREOF, the Subsidiary Guarantor has caused this Subsidiary
Guaranty to be duly executed and delivered by its duly authorized officer as of
the date first above written.
[COMPANY]
By:
Name:
Title:
Address:
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Exhibit C-8
364-DAY CREDIT AGREEMENT
EXHIBIT D
FORM OF
PROMISSORY NOTE
$[ ] [ ], 200[ ]
FOR VALUE RECEIVED, Pioneer Natural Resources Company, a Delaware
corporation, (the "Borrower") hereby promises to pay to the order of [ ] (the
"Lender"), at the principal office of JPMorgan Chase Bank (the "Administrative
Agent"), at [ ], the principal sum of [ ] Dollars ($[ ]) (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Loans made by the
Lender to the Borrower under the Credit Agreement, as hereinafter defined), in
lawful money of the United States of America and in immediately available funds,
on the dates and in the principal amounts provided in the Credit Agreement, and
to pay interest on the unpaid principal amount of each such Loan, at such
office, in like money and funds, for the period commencing on the date of such
Loan until such Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate, Interest Period and maturity of each
Loan made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, may be endorsed by the Lender on schedules to be
attached hereto or any continuation thereof or on any separate record maintained
by the Lender. Failure to make any such notation or to attach a schedule shall
not affect any Lender's or the Borrower's rights or obligations in respect of
such Loans or affect the validity of such transfer by any Lender of this Note.
This Note is one of the Notes referred to in the 364-Day Credit Agreement
dated as of September 28, 2004 among the Borrower, the Administrative Agent, and
the other agents and lenders signatory thereto (including the Lender), and
evidences Loans made by the Lender thereunder (such Credit Agreement as the same
may be amended, supplemented or restated from time to time, the "Credit
Agreement"). Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled to the
benefits provided for in the Credit Agreement and the other Loan Documents. The
Credit Agreement provides for the acceleration of the maturity of this Note upon
the occurrence of certain events, for prepayments of Loans upon the terms and
conditions specified therein and other provisions relevant to this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TEXAS.
Exhibit D-1
364-DAY CREDIT AGREEMENT
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly
executed as of the day and year first above written.
PIONEER NATURAL RESOURCES COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Exhibit D-2
364-DAY CREDIT AGREEMENT