EXHIBIT 99.1
EXECUTION COPY
AMENDED AND RESTATED
5-YEAR REVOLVING CREDIT AGREEMENT
dated as of
September 30, 2005
among
PIONEER NATURAL RESOURCES COMPANY,
as the Borrower
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
JPMORGAN CHASE BANK, N.A.
WACHOVIA BANK, NATIONAL ASSOCIATION
and BANK OF AMERICA, N.A.,
as Issuing Banks,
JPMORGAN CHASE BANK, N.A.
and WACHOVIA BANK, NATIONAL ASSOCIATION
as Swingline Banks
and
The Lenders Party Hereto
----------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
BANK OF AMERICA, N.A., DEUTSCHE BANK SECURITIES INC. and WELLS
FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
----------------------------
J.P. MORGAN SECURITIES INC. and WACHOVIA CAPITAL MARKETS, LLC,
as Co-Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page:
ARTICLE I DEFINITIONS.......................................................1
Section 1.01 Defined Terms....................................1
Section 1.02 Classification of Loans and Borrowings..........18
Section 1.03 Terms Generally.................................18
Section 1.04 Accounting Terms; GAAP..........................19
ARTICLE II THE CREDITS.....................................................19
Section 2.01 Commitments.....................................19
Section 2.02 Commitment Increase.............................19
Section 2.03 Revolving Loans and Borrowings..................21
Section 2.04 Requests for Revolving Borrowings...............22
Section 2.05 Swingline Loans.................................22
Section 2.06 Letters of Credit...............................24
Section 2.07 Funding of Borrowings...........................28
Section 2.08 Interest Elections..............................29
Section 2.09 Termination and Reduction of Commitments........30
Section 2.10 Repayment of Loans; Evidence of Debt............30
Section 2.11 Prepayment of Loans.............................31
Section 2.12 Fees............................................32
Section 2.13 Interest........................................33
Section 2.14 Alternate Rate of Interest......................34
Section 2.15 Increased Costs.................................34
Section 2.16 Break Funding Payments..........................35
Section 2.17 Taxes...........................................36
Section 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.............................37
Section 2.19 Mitigation Obligations; Replacement of Lenders..39
Section 2.20 Extension of Maturity Date......................39
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................40
Section 3.01 Organization; Powers............................40
Section 3.02 Authorization; Enforceability...................40
Section 3.03 Governmental Approvals; No Conflicts............41
Section 3.04 Financial Condition; No Material Adverse Change.41
Section 3.05 Properties......................................41
Section 3.06 Litigation and Environmental Matters............41
Section 3.07 Compliance with Laws............................42
Section 3.08 Investment and Holding Company Status...........42
Section 3.09 Taxes...........................................42
Section 3.10 ERISA...........................................42
Section 3.11 Disclosure......................................42
ARTICLE IV CONDITIONS......................................................43
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Section 4.01 Effective Date..................................43
Section 4.02 Each Credit Event...............................44
ARTICLE V AFFIRMATIVE COVENANTS............................................44
Section 5.01 Financial Statements and Other Information......44
Section 5.02 Notices of Material Events......................46
Section 5.03 Existence; Conduct of Business..................46
Section 5.04 Payment of Obligations..........................46
Section 5.05 Maintenance of Properties; Insurance............47
Section 5.06 Books and Records; Inspection Rights............47
Section 5.07 Compliance with Laws............................47
Section 5.08 Use of Proceeds and Letters of Credit...........47
Section 5.09 Operations......................................47
ARTICLE VI NEGATIVE COVENANTS..............................................47
Section 6.01 Indebtedness....................................47
Section 6.02 Liens...........................................48
Section 6.03 Fundamental Changes.............................49
Section 6.04 Financial Covenants.............................49
Section 6.05 Investments, Loans, Advances, Guarantees and
Acquisitions....................................50
Section 6.06 Swap Agreements.................................50
Section 6.07 Transactions with Affiliates....................50
Section 6.08 Restrictive Agreements..........................50
ARTICLE VII EVENTS OF DEFAULT..............................................51
ARTICLE VIII THE ADMINISTRATIVE AGENT......................................53
Section 8.01 Administrative Agent............................53
Section 8.02 The Co-Arrangers, Joint Bookrunners,
Syndication Agent and Co-Documentation Agents...55
ARTICLE IX MISCELLANEOUS...................................................55
Section 9.01 Notices.........................................55
Section 9.02 Waivers; Amendments.............................57
Section 9.03 Expenses; Indemnity; Damage Waiver..............57
Section 9.04 Successors and Assigns..........................59
Section 9.05 Survival........................................62
Section 9.06 Counterparts; Integration; Effectiveness........62
Section 9.07 Severability....................................63
Section 9.08 Governing Law; Jurisdiction; Consent to
Service of Process..............................63
SECTION 9.09 WAIVER OF JURY TRIAL............................64
Section 9.10 Headings........................................64
Section 9.11 Confidentiality.................................64
Section 9.12 Interest Rate Limitation........................65
Section 9.13 USA Patriot Act Notice..........................66
Schedules:
Schedule 2.01 Commitments
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Schedule 2.13 Swingline Loan Rate Calculation
Schedule 3.06 Disclosed Matters
Schedule 6.02 Liens
Schedule 6.08 Existing Restrictive Agreements
Exhibits:
Exhibit A Form of Assignment and Assumption
Exhibit B Notice of Commitment Increase
Exhibit C Form of Opinion of Borrower's Counsel
Exhibit D Form of Subsidiary Guaranty
Exhibit E Form of Promissory Note
Exhibit F Form of Maturity Date Extension Request
Exhibit G Form of Joinder Agreement
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AMENDED AND RESTATED 5-YEAR REVOLVING CREDIT AGREEMENT dated as of
September 30, 2005, among PIONEER NATURAL RESOURCES COMPANY, a Delaware
corporation, as the Borrower, JPMORGAN CHASE BANK, N.A. as Administrative Agent,
JPMorgan Chase Bank, N.A., Wachovia Bank, National Association and Bank of
America, N.A., as Issuing Banks, JPMORGAN CHASE BANK, N.A., and WACHOVIA BANK,
NATIONAL ASSOCIATION, as Swingline Lenders, the LENDERS party hereto, WACHOVIA
BANK, NATIONAL ASSOCIATION, as Syndication Agent, BANK OF AMERICA, N.A.,
DEUTSCHE BANK SECURITIES INC. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agents, and J.P. MORGAN SECURITIES INC. and WACHOVIA CAPITAL
MARKETS, LLC, as Co-Arrangers and Joint Bookrunners.
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, N.A. 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 Amended and Restated 5-Year Revolving 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 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
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"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 0.080 % 0.350 %
= Baa1/BBB+
------------------------- ------------------------- ------------------------
Category 2 0.100 % 0.450 %
Baa2/BBB
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
Category 3 0.125 % 0.625 %
Baa3/BBB-
------------------------- ------------------------- ------------------------
------------------------- ------------------------- ------------------------
Category 4 0.175 % 0.875 %
= Ba1/BB+
========================= ========================= ========================
On each day that the sum of the total Credit Exposures exceed 50% of the
total Commitments, the Eurodollar Spread shall be 0.10% higher in the case of
Category 1 and 2 and shall be 0.125% higher in the case of Category 3 and 4.
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 4. 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, unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable Margin shall be
determined by reference to the Category next above that of the lower 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.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Commitments represented by such Lender's Commitment. If the Commitments
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have terminated or expired, the Applicable Percentages shall be determined based
upon the Commitments most recently in effect, giving effect to any assignments.
"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.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity 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 the Pioneer Natural Resources Company, a Delaware
corporation.
"Borrowing" means Revolving 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 or Swingline 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.
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"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 the Issuing Banks
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or the Issuing Banks' 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.
"CI Lender" has the meaning set forth in Section 2.02(a).
"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
Swingline Loans.
"Co-Arrangers" means both J.P. Morgan Securities Inc. and Wachovia Capital
Markets, LLC.
"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 acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Credit Exposure hereunder, as such
commitment may be (a) increased from time to time pursuant to Section 2.02, (b)
reduced from time to time pursuant to Section 2.09, or (c) 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 $1,500,000,000.
"Commitment Increase" has the meaning set forth in Section 2.02(a).
"Commitment Increase Effective Date" has the meaning set forth in Section
2.02(b).
"Consenting Lender" has the meaning assigned to such term in Section 2.20.
"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, (iii) non-cash gains under Statement of Financial
Accounting Standard 133 (and any statements replacing, modifying or superceding
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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, and (iv) accretion of discount on asset
retirement obligations under Statement of Financial Accounting Standard 143 (and
any statements replacing, modifying or superceding such statement), in each case
determined on a consolidated basis in accordance with GAAP and without
duplication of amounts; provided, however, non-cash income or gains in respect
of deferred revenue, production payments and other matters included in the
definition of Indebtedness shall not be subtracted from Consolidated Net Income
under this clause (b).
"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.
"Consolidated Net Tangible Assets" means, on any date, the aggregate amount
of total assets of the Borrower and its Subsidiaries, minus (a) all current
liabilities of the Borrower and its Subsidiaries (excluding current liabilities
included in the definition of Indebtedness and excluding current liabilities
attributable to commodities derivative contracts), (b) all goodwill of the
Borrower and its Subsidiaries and (c) current and long-term assets attributable
to commodities derivative contracts, all determined on a consolidated basis in
accordance with GAAP.
"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, net of associated taxes; 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 June 30, 2005, 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, net of associated
taxes.
"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.
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"Credit Exposure" means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender's Loans and its LC Exposure and
Swingline Exposure at such time.
"Declining Lender" has the meaning assigned to such term in Section 2.20.
"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, disclosed in any filing with
the Securities and Exchange Commission or as otherwise disclosed in writing from
time to time to Administrative Agent.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date 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.
"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.
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"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, the Issuing Banks 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 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.
"Existing Credit Agreement" means that certain 5-Year Revolving Credit
Agreement, dated as of December 16, 2003, among the Borrower, JPMorgan Chase
Bank, N.A., as Administrative Agent, JPMorgan Chase Bank, N.A. and the Bank of
America, N.A. as Issuing Banks, Wachovia Bank, National Association, as
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Syndication Agent, Bank of America, N.A., Bank One, N.A., Fleet National Bank,
and Wells Fargo Bank, National Association, as Co-Documentation Agents, and the
lenders parties thereto.
"Existing Letters of Credit" means the Letters of Credit described on
Schedule 1.01 that were issued by JPMorgan Chase Bank, N.A. or Bank of America,
N.A. under the Existing Credit Agreement and that shall be transferred to and
deemed issued under this Agreement, as such Letters of Credit may be renewed or
amended from time to time.
"Existing Maturity Date" has the meaning assigned to such term in Section
2.20.
"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.
"Financial Officer" means, with respect to any Person, the chief financial
officer or principal accounting officer. 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
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
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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.
"Hydrocarbon Interests" means all rights, titles, interests and estates now
owned or hereafter acquired in and to oil and gas leases, oil, gas and mineral
leases, or other liquid or gaseous hydrocarbon leases, mineral fee or lease
interests, farm-outs, overriding royalty and royalty interests, net profit
interests, oil payments, production payment interests and similar mineral
interests, including any reserved or residual interest of whatever nature.
"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
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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.
"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, (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 and (c) with respect to any
Swingline Loan, the first day of each calendar month, unless such day shall not
be a Business Day, in which case the next succeeding Business Day.
"Interest Period" means (a) with respect to any Eurodollar Revolving
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, and (b) with respect to any
Swingline Loan, the period commencing on the date of such Borrowing and ending
on the date specified in Section 2.10(a); 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 Revolving 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 Revolving 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.
"Issuing Bank" means each of JPMorgan Chase Bank, N.A. and Wachovia Bank,
National Association, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.06(i).
The Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include such Affiliate with respect to Letters of Credit
issued by such Affiliate. Bank of America, N.A. shall also be an Issuing Bank as
to Existing Letters of Credit. The Borrower may, with the consent of the
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Administrative Agent and the relevant Lender, appoint such Lender hereunder as
an Issuing Bank in addition to JPMorgan Chase Bank, N.A. and Wachovia Bank,
National Association.
"Joinder Agreement" has the meaning set forth in Section 2.02(a).
"LC Disbursement" means a payment made by an Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to Section 2.02 or pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lenders.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Revolving 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 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.
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"Loans" means the 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 and
the Subsidiary Guarantors, if any, to perform their obligations, taken as a
whole, under this Agreement and the other Loan Documents or (c) the rights of or
benefits available to the Lenders under this Agreement and the other Loan
Documents.
"Material Indebtedness" means (a) Indebtedness (other than the Loans and
Letters of Credit), or (b) obligations in respect of one or more Swap
Agreements, in each case under clause (a) or (b) of any one or more of the
Borrower and its Restricted 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 Restricted
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 Restricted Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
"Maturity Date" means the later of (a) September 30, 2010 and (b) if
maturity is extended pursuant to Section 2.20, such extended maturity date as
determined pursuant to Section 2.20 (it being understood and agreed that any
such maturity shall not be deemed extended for any Lender that has not consented
to such extension).
"Maturity Date Extension Request" means a request by the Borrower, in the
Form of Exhibit F hereto or any other form approved by the Administrative Agent,
for the extension of the Maturity Date pursuant to Section 2.20.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"New Funds Amount" has the meaning set forth in Section 2.02(d).
"Notice of Commitment Increase" has the meaning set forth in Section
2.02(b).
"Obligors" means the Borrower and the Subsidiary Guarantors, each an
"Obligor".
"Oil and Gas Properties" means Hydrocarbon Interests; the properties now or
hereafter pooled or unitized with Hydrocarbon Interests; all presently existing
or future unitization, pooling agreements and declarations of pooled units and
the units created thereby (including without limitation all units created under
orders, regulations and rules of any Governmental Authority having jurisdiction)
which may affect all or any portion of the Hydrocarbon Interests; all pipelines,
gathering lines, compression facilities, tanks and processing plants; all
interests held in royalty trusts whether presently existing or hereafter
created; all Hydrocarbons in and under and which may be produced, saved,
processed or attributable to the Hydrocarbon Interests, the lands covered
thereby and all Hydrocarbons in pipelines, gathering lines, tanks and processing
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plants and all rents, issues, profits, proceeds, products, revenues and other
incomes from or attributable to the Hydrocarbon Interests; all tenements,
hereditaments, appurtenances and properties in any way appertaining, belonging,
affixed or incidental to the Hydrocarbon Interests, and all rights, titles,
interests and estates described or referred to above, including any and all real
property, now owned or hereafter acquired, used or held for use in connection
with the operating, working or development of any of such Hydrocarbon Interests
or property and including any and all surface leases, rights-of-way, easements
and servitudes together with all additions, substitutions, replacements,
accessions and attachments to any and all of the foregoing; all oil, gas and
mineral leasehold and fee interests, all overriding royalty interests, mineral
interests, royalty interests, net profits interests, net revenue interests, oil
payments, production payments, carried interests and any and all other interests
in Hydrocarbons; in each case whether now owned or hereafter acquired directly
or indirectly.
"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
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, processing and maintenance of Hydrocarbons and related
facilities and assets and securing obligations that are not overdue by more
than 90 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;
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(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, area of mutual interest, division
order, joint venture, partnership and similar agreements relating to the
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 resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness of the
Borrower or any Restricted Subsidiary;
(n) Liens arising under customary letter of credit reimbursement
agreements and customary deposit account agreement, and similar agreements
entered into in the ordinary course of business with respect to instruments
or money in the possession of the other party thereto in the ordinary
course of business; and
(o) 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.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
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"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, N.A. 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.
"Proved Reserves" means the estimated quantities of crude oil, condensate,
natural gas and natural gas liquids that adequate geological and engineering
data demonstrate with reasonable certainty to be recoverable in future years
from proved reservoirs under existing economic and operating conditions (i.e.,
prices and costs as of the date the estimate is made).
"PV" means the calculation of the net present value of projected future
cash flows from Proved Reserves based upon the most recently delivered Reserve
Report (using the arithmetical average of the discount rate and customary price
deck of JPMorgan Chase Bank, N.A. and Wachovia Bank, National Association as of
the December 31 effective date of such Reserve Report and giving effect to the
Borrower's hedging arrangements and long-term contracts). For purposes of
calculating the PV, a maximum of 35% of the PV value will be included from
Proved Reserves that are not proved developed producing reserves. If, during any
period between the December 31 effective dates of Reserve Reports, the aggregate
fair market value, in the reasonable opinion of the Borrower, of Oil and Gas
Properties disposed of or purchased by the Borrower and the Restricted
Subsidiaries shall exceed $100,000,000, then the PV for such period shall be
reduced or increased, as the case may be, from time to time, by an amount equal
to the value assigned such Oil and Gas Properties in the most recent calculation
of the PV for such period (or if no value was assigned, by an amount agreed to
by the Borrower, JPMorgan Chase Bank, N.A. and Wachovia Bank, National
Association). PV shall reflect the deferred revenue with respect to production
payments included in Total Debt, at a value that is equal to the amount of
deferred revenues so included in Total Debt.
"Reducing Percentage Lender" has the meaning set forth in Section 2.02(d).
"Reduction Amount" has the meaning set forth in Section 2.02(d).
"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.
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"Reserve Report" means a report prepared as of December 31 of each year by
the Borrower with respect to the Oil and Gas Properties of the Borrower and the
Restricted Subsidiaries and audited at least as to 60% of the net present value
of all such Proved Reserves by Gaffney, Cline & Associates, Ryder Scott Company,
Netherland, Sewell & Associates, Inc. or another independent engineering firm
selected by the Borrower and reasonably acceptable to the Administrative Agent.
"Restricted Subsidiaries" means all Subsidiary Guarantors and, without
duplication, all Subsidiaries of the Borrower that are not Unrestricted
Subsidiaries.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Stable Investment Grade Date" means the first date on which the Borrower's
Index Debt rating is BBB- or better by S&P's (without negative outlook or
negative watch) or Baa3 or better by Moody's (without negative outlook or review
for downgrade), 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 Baa3 or better.
"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.
"Sub-Investment Grade Date" means the first date on which the Borrower's
Index Debt rating is BB+ or worse by S&P's and Ba1 or worse by Moody's; provided
that no Sub-Investment Grade Date shall occur after the occurrence of a Stable
Investment Grade Date.
"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.
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"Subsidiary Guarantor" means any Restricted Subsidiary that is required to
execute and deliver a Subsidiary Guaranty.
"Subsidiary Guaranty" means a Subsidiary Guaranty substantially in the form
of Exhibit D executed by a Restricted Subsidiary
"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.
"Swingline Commitment" means, with respect to each Swingline Lender, the
commitment of such Swingline Lender to make Swingline Loans. The amount of each
Swingline Commitment for each Swingline Lender is $50,000,000 and the total
Swingline Commitment is $100,000,000.
"Swingline Exposure" means at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lenders" means JPMorgan Chase Bank, N.A. and Wachovia Bank,
National Association.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"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 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 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 issuance of Letters of Credit hereunder and the guarantee by
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the Subsidiary Guarantors 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
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 any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
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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), 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
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.
Section 2.02 Commitment Increase.
(a) Subject to the terms and conditions set forth herein, the Borrower
shall have the right, without the consent of the Lenders but with the prior
approval of the Administrative Agent, to cause from time to time an increase in
the Commitments of the Lenders (a "Commitment Increase") by adding to this
Agreement one or more additional financial institutions that is not already a
Lender hereunder and that is reasonably satisfactory to the Administrative Agent
or by allowing one or more existing Lenders to increase their respective
Commitments (each a "CI Lender"); provided, however that (i) no Event of Default
shall have occurred which is continuing, no such Commitment Increase shall cause
the Commitments under this Agreement to exceed $1,800,000,000, (iii) no Lender's
Commitment shall be increased without such Lender's prior written consent, (iv)
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if, on the effective date of such increase, any Loans have been funded, then the
Borrower shall be obligated to pay any breakage fees or costs in connection with
the reallocation of such outstanding Loans, and (v) each CI Lender shall execute
a joinder agreement in the form of Exhibit G attached hereto (a "Joinder
Agreement").
(b) Any Commitment Increase shall be requested by written notice from
the Borrower to the Administrative Agent (a "Notice of Commitment Increase") in
the form of Exhibit B attached hereto and shall be approved by the
Administrative Agent, such consent to not be unreasonably withheld. Each such
Notice of Commitment Increase shall specify (i) the proposed effective date of
such Commitment Increase, which date shall be no earlier than five (5) Business
Days after receipt by the Administrative Agent of such Notice of Commitment
Increase, (ii) the amount of the requested Commitment Increase (provided that
after giving effect to such requested Commitment Increase, the aggregate amount
of the Commitments does not exceed the amount set forth in subsection (a)(ii)
above), (iii) the identity of each CI Lender, and (iv) the amount of the
respective Commitments of the then existing Lenders and the CI Lenders from and
after the Commitment Increase Effective Date (as defined below). The
Administrative Agent shall review each Notice of Commitment Increase and shall
notify the Borrower whether or not the Administrative Agent consents to the
proposed Commitment Increase. If the Administrative Agent consents to such
Commitment Increase (such consent not to be unreasonably withheld), the
Administrative Agent shall execute a counterpart of the Notice of Commitment
Increase and such Commitment Increase shall be effective on the proposed
effective date set forth in the Notice of Commitment Increase (if the
Administrative Agent consented to such Commitment Increase prior to such
proposed date) or on another date agreed to by the Administrative Agent and the
Borrower (such date referred to as the "Commitment Increase Effective Date").
(c) On each Commitment Increase Effective Date, to the extent that
there are Loans outstanding as of such date, (i) each CI Lender shall, by wire
transfer of immediately available funds, deliver to the Administrative Agent
such CI Lender's New Funds Amount, which amount, for each such CI Lender, shall
constitute Loans made by such CI Lender to the Borrower pursuant to this
Agreement on such Commitment Increase Effective Date, (ii) the Administrative
Agent shall, by wire transfer of immediately available funds, pay to each then
Reducing Percentage Lender its Reduction Amount, which amount, for each such
Reducing Percentage Lender, shall constitute a prepayment by the Borrower
pursuant to Section 2.11, ratably in accordance with the respective principal
amounts thereof, of the principal amounts of all then outstanding Loans of such
Reducing Percentage Lender, and (iii) the Borrower shall be responsible to pay
to each Lender any breakage fees or costs in connection with the reallocation of
any outstanding Loans.
(d) For purposes of this Section 2.02 and Exhibit B, the following
defined terms shall have the following meanings: (i) "New Funds Amount" means
the amount equal to the product of a CI Lender's increased Commitment or a CI
Lender's new Commitment (as applicable) represented as a percentage of the
aggregate Commitments after giving effect to the Commitment Increase, times the
aggregate principal amount of the outstanding Loans immediately prior to giving
effect to the Commitment Increase, if any, as of a Commitment Increase Effective
Date (without regard to any increase in the aggregate principal amount of Loans
as a result of borrowings made after giving effect to the Commitment Increase on
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such Commitment Increase Effective Date); (ii) "Reducing Percentage Lender"
means each then existing Lender immediately prior to giving effect to the
Commitment Increase that does not increase its respective Commitment as a result
of the Commitment Increase and whose relative percentage of the Commitments
shall be reduced after giving effect to such Commitment Increase; and (iii)
"Reduction Amount" means the amount by which a Reducing Percentage Lender's
outstanding Loans decrease as of a Commitment Increase Effective Date (without
regard to the effect of any borrowings made on such Commitment Increase
Effective Date after giving effect to the Commitment Increase).
(e) Each Commitment Increase shall become effective on its Commitment
Increase Effective Date and upon such effectiveness (i) the Administrative Agent
shall record in the register each then CI Lender's information as provided in
the Notice of Commitment Increase and pursuant to an Administrative
Questionnaire satisfactory to the Administrative Agent that shall be executed
and delivered by each CI Lender to the Administrative Agent on or before the
Commitment Increase Effective Date, (ii) Schedule 2.01 hereof shall be amended
and restated to set forth all Lenders (including any CI Lenders) that will be
Lenders hereunder after giving effect to such Commitment Increase (which shall
be set forth in Annex I to the applicable Notice of Commitment Increase) and the
Administrative Agent shall distribute to each Lender (including each CI Lender)
a copy of such amended and restated Schedule 2.01, and (iii) each CI Lender
identified on the Notice of Commitment Increase for such Commitment Increase
shall be a "Lender" for all purposes under this Agreement.
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
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e). Borrowings of more than one Type and Class may be outstanding at the
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same time; provided that there shall not at any time be more than a total of
fifteen (15) Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Revolving Borrowing if the Interest Period requested with respect thereto
would end after the 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; provided
that any such notice of an ABR Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e) may be given not later than
12:00 noon, New York City time, on the date 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 2.02:
(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 Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lenders agree to make Swingline Loans in dollars to the Borrower from
time to time during the Availability Period ratably in accordance with its
respective Swingline Commitment, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
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outstanding Swingline Loans exceeding for the Swingline Lender $50,000,000 or
for both Swingline Lenders $100,000,000 or (ii) the total Credit Exposures
exceeding the total Commitments; provided that the Swingline Lenders shall not
be required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans. The
failure of any Swingline Lender to make any Swingline Loan required to be made
by it shall not relieve any other Swingline Lender of its obligations hereunder;
provided that the Swingline Commitments of the Swingline Lenders are several and
no Swingline Lender shall be responsible for any other Swingline Lender's
failure to make Loans as required. Each Swingline Loan shall be in an amount
that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided, that a Swingline Loan may be in an aggregate amount that is equal to
the entire available balance of the total Swingline Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(c).
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 1:00 p.m., New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise each Swingline Lender of any such
notice received from the Borrower. Each Swingline Lender shall make its pro rata
share of each Swingline Loan available to the Administrative Agent who will in
turn make such amount received available to the Borrower by means of a credit to
the general deposit account of the Borrower with the Administrative Agent (or,
in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank)
by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lenders may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of each Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this Section 2.05(c) is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this Section 2.05(c) by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lenders the amounts so received by it from the
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Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this Section 2.05(c),
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lenders. Any amounts received by a
Swingline Lender from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by such Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Lenders that shall
have made their payments pursuant to this Section 2.05(c) and to such Swingline
Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to such Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be
refunded to the Borrower for any reason. The purchase of participations in a
Swingline Loan pursuant to this Section 2.05(c) shall not relieve the Borrower
of any default in the payment thereof.
Section 2.06 Letters of Credit.
(a) General. The Borrower, the Administrative Agent, Bank of America,
N.A., as the Issuing Bank, and Lenders hereby agree that all Existing Letters of
Credit shall be deemed to be issued under this Agreement as of the Effective
Date and shall constitute Letters of Credit hereunder for all purposes (except
that the Issuing Bank's standard issuance fee shall not be payable on such
deemed issuance). Except as provided in Section 2.06(i), Bank of America, N.A.
shall only serve as Issuing Bank for the Existing Letters of Credit, and
JPMorgan Chase Bank, N.A. and Wachovia Bank, National Association shall serve as
Issuing Bank for all other Letters of Credit. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of standby
Letters of Credit, in dollars and in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the applicable Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Condition. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
below), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by an Issuing Bank,
the Borrower also shall submit a letter of credit application on such Issuing
Bank's standard form in connection with any request for a Letter of Credit;
provided that no provision in such application shall be deemed effective to the
extent such provision contains, provides for, or requires, representations,
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warranties, covenants, security interests, Liens, indemnities, reimbursements of
costs or expenses, events of defaults, remedies, or standards of care or to the
extent such provision conflicts or is inconsistent with this Agreement. A Letter
of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the total Credit Exposures shall
not exceed the total Commitments and (ii) the LC Exposure of such Issuing Bank
shall not exceed in the aggregate $250,000,000 at any time.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date ;provided that no Letter
of Credit may expire after the date that is five Business Days prior to an
Existing Maturity Date in respect of any Declining Lenders under Section 2.20
if, after giving effect to such Letter of Credit, the aggregate Commitments of
the Consenting Lenders (including any replacement Lenders) for the period
following such Existing Maturity Date would be less than the LC Exposure
following such Existing Maturity Date.
(d) Participation. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Banks or the Lenders, the Issuing
Banks hereby grant to each Lender, and each Lender hereby acquires from the
Issuing Banks, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Banks, such Lender's Applicable Percentage
of each LC Disbursement made by the Issuing Banks and not reimbursed by the
Borrower on the date due as provided in paragraph (e) below, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 1:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, New York City time, on (i) the Business Day that
the Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $5,000,000, the Borrower may, subject
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to the conditions to borrowing set forth herein, request in accordance with
Section 2.04 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as its interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR Revolving Loans or Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, or (iii) any other event or circumstance whatsoever
(other than failure to comply with the terms of such Letter of Credit), whether
or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right
of setoff against, the Borrower's obligations hereunder. Neither the
Administrative Agent, the Lenders nor the Issuing Banks, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Banks; provided that the foregoing shall not be construed to excuse the
Issuing Banks from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Banks' failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Banks (as finally determined by a court of competent jurisdiction), the
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Issuing Banks shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Banks may, in their sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Banks shall, promptly
following receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Banks shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Banks have made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Banks and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) above, then Section 2.13(d) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Banks. An Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of an Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If the Loans have become immediately due
and payable pursuant to Article VII, on the Business Day following the Business
Day that the Borrower receives notice from the Administrative Agent (at the
direction of Required Lenders) or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
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account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest on LC Disbursements
comprising such LC Exposure. Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account (which shall be invested in obligations of, obligations guaranteed by,
or obligations backed by the full faith and credit of, the United States of
America, certificates of deposit of Administrative Agent or commercial paper
having the highest rating from S&P or Moody's, in each case maturing in less
than 180 days). Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse an Issuing Bank for LC Disbursements for which
it has not been reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated (but
subject to the consent of Lenders with LC Exposure representing greater than 50%
of the total LC Exposure), be applied to satisfy other obligations of the
Borrower under this Agreement.
Section 2.07 Funding of Borrowings.
(a) Each Lender shall make each 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; provided that
Swingline Loans shall be made as provided in Section 2.05. The Administrative
Agent will make such 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; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(e)
shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(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,
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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 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
Revolving 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.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(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.
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(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 Revolving Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Revolving 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 Maturity Date.
(b) The Borrower may at any time 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 sum of the total Credit Exposures would exceed
the Commitments.
(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 Maturity Date and (ii) with respect to
Swingline Loans made to it, to the Administrative Agent for the account of each
Swingline Lender the then unpaid principal amount of each Swingline Loan on the
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earlier of the Maturity Date and the Swingline Due Date. "Swingline Due Date"
means for each Swingline Loan, the next Business Day from the date the Swingline
Loan has been disbursed. On each date that a Revolving Borrowing is made, the
Borrower shall repay the amount of any outstanding Swingline Loans that exceeds
$20,000,000.
(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 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 E. 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).
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 Revolving Borrowing, not later than 12:00 noon, New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 12:00 noon, New
York City time, on the date of prepayment, or (iii) in the case of prepayment of
a Swingline Loan, not later than 12:00 noon New York City time, on the date of
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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 Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Revolving 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 without giving effect to such Lender's Swingline Exposures 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 (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Margin used to
determine the interest rate applicable to Eurodollar Revolving Loans on the
average daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and to the Issuing Bank a fronting fee, which shall accrue
at the rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting 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. All participation
fees and fronting 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).
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(c) 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.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation 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 Revolving 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) When the Borrower requests a Swingline Loan, such Loan shall bear
interest from the date it is disbursed at a rate to be established as provided
on Schedule 2.13.
(d) 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.
(e) 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 (d) 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.
(f) 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.
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Section 2.14 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing (including any Swingline Loan):
(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
(b) the Administrative Agent is advised by the Required Lenders (or in
the case of a Swingline Loan, the Swingline 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 (or Swingline Lender) of making or
maintaining their Loans (or its Swingline Loan) 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 Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Swingline Loan shall be ineffective; 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 the Issuing Banks ; or
(ii) impose on any Lender or the Issuing Banks or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
(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 increase the cost to such Lender or the Issuing Banks
of participating in, issuing or maintaining any Letter of Credit or to reduce
the amount of any sum received or receivable by such Lender or the Issuing Banks
hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Banks , as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Banks , as the
case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or an Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
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such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or
the Issuing Bank 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 or
the Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank'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
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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, Lender, or Issuing Banks (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.
(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, each
Lender, and the Issuing Banks within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender, or the Issuing Banks , 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 the Issuing Banks , or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Banks.
(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.
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(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
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, fees or reimbursement of LC
Disbursements, 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 payments to be made directly to the Issuing Banks or
Swingline Lender as expressly provided herein and 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, unreimbursed LC
Disbursements, 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
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and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements 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 Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline 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
Revolving Loans and participations in LC Disbursements and Swingline 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 Revolving Loans and
participations in LC Disbursements and Swingline 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 or
participations in LC Disbursements 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 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 or the Issuing Banks 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 or the Issuing Banks
, as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Banks , as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Banks 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 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
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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 (and,
if a Commitment is being assigned, the Issuing Bank) 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 and participations in LC
Disbursements and Swingline 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) 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.
Section 2.20 Extension of Maturity Date. The Borrower may, by delivery of a
Maturity Date Extension Request to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders) not less than 45 days and not
more than 75 days prior to any anniversary of the Effective Date, request that
the Lenders extend the Maturity Date for an additional period of one year,
provided that there shall be no more than three extensions of the Maturity Date
pursuant to this Section. Each Lender shall, by notice to the Borrower and the
Administrative Agent given not later than the 20th day after the date of the
Agent's receipt of the Borrower's Maturity Date Extension Request, advise the
Borrower whether or not it agrees to the requested extension (each Lender
agreeing to a requested extension being called a "Consenting Lender" and each
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Lender declining to agree to a requested extension being called a "Declining
Lender"). Any Lender that has not so advised the Borrower and the Administrative
Agent by such day shall be deemed to have declined to agree to such extension
and shall be a Declining Lender. If Lenders constituting the Required Lenders
shall have agreed to a Maturity Date Extension Request, then the Maturity Date
shall, as to the Consenting Lenders, be extended to the first anniversary of the
Maturity Date theretofore in effect. The decision to agree or withhold agreement
to any Maturity Date Extension Request shall be at the sole discretion of each
Lender. The Commitment of any Declining Lender shall terminate on the Maturity
Date in effect prior to giving effect to any such extension (such Maturity Date
being called the "Existing Maturity Date"). The principal amount of any
outstanding Loans made by Declining Lenders, together with any accrued interest
thereon and any accrued fees and other amounts payable to or for the account of
such Declining Lenders hereunder, shall be due and payable on the Existing
Maturity Date, and on the Existing Maturity Date, the Borrower shall also make
such other prepayments of its Loans pursuant to Section 2.11 as shall be
required in order that, after giving effect to the termination of the
Commitments of, and all payments to, Declining Lenders pursuant to this
sentence, the sum of the total Credit Exposures shall not exceed the total
Commitments. Notwithstanding the foregoing provisions of this paragraph, the
Borrower shall have the right, pursuant to Section 9.04, at any time prior to
the Existing Maturity Date, to replace a Declining Lender with a Lender or other
financial institution that will agree to a Maturity Date Extension Request, and
any such replacement Lender shall for all purposes constitute a Consenting
Lender. Notwithstanding the foregoing, no extension of the Maturity Date
pursuant to this paragraph shall become effective unless (i) the Administrative
Agent shall have received documents consistent with those delivered with respect
to the Borrower under Section 4.01(b) through Section 4.01(d), giving effect to
such extension and (ii) on the anniversary of the Effective Date that
immediately follows the date on which the Borrower delivers the applicable
Maturity Date Extension Request, (A) the conditions set forth in Section 4.02
shall be satisfied, (B) there has been no change since December 31, 2004 that
has resulted in a Material Adverse Effect that is continuing and (C) the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by the President, a Vice President or a Financial Officer of
the Borrower.
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 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
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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, 2004, reported
on by Ernst & Young LLP, independent public accountants, and as of and for the
fiscal quarter and the six months ended June 30, 2005, certified by its
Financial Officer. Such financial statements present fairly, in all 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, 2004, 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
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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.
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.
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ARTICLE IV
CONDITIONS
Section 4.01 Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Banks to issue Letters of Credit 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 any general counsel or associate general counsel of the
Borrower or a wholly owned subsidiary of the Borrower acting as counsel for the
Borrower, and of Thompson & Knight, LLP, outside counsel for the Borrower,
covering those matters described on Exhibit C. 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
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) and (b) of Section 4.02.
(e) The Administrative Agent, Lenders and Co-Arrangers 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.
(f) All commitments under the Existing Credit Agreement and under the
364-Day Credit Agreement, dated September 28, 2004, among the Borrower, the
lenders party thereto, and JPMorgan Chase Bank, as Administrative Agent, shall
have been terminated in full and all amounts outstanding under the Existing
Credit Agreement and such 364-Day Credit Agreement shall have been paid in full.
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 and of the Issuing
Banks to issue Letters of Credit 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 September 29, 2005 (and,
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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, and of the Issuing Banks to issue, amend,
renew or extend any Letter of Credit, 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 shall be true and correct on and as of the date of such Borrowing or
the date of the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
(c) After the occurrence of a Sub-Investment Grade Date and prior to
the occurrence of a Stable Investment Grade Date, there has been no change since
December 31, 2004 that has resulted in a Material Adverse Effect which is
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit 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, after the occurrence of a Sub-Investment Grade Date and prior to the
occurrence of a Stable Investment Grade Date, (c) of this Section.
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 and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, 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:
(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
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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 Sections 6.04 (a), (b), and
after the occurrence of a Sub-Investment Grade Date and prior to the occurrence
of a Stable Investment Grade Date, (c);
(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) after the occurrence of a Sub-Investment Grade Date and prior to
the occurrence of a Stable Investment Grade Date, by April 30 of each year or,
if such Sub-Investment Grade Date occurs after March 15 of any year, promptly
and in no event later than 45 days after such Sub-Investment Grade Date, the
Borrower shall furnish to the Administrative Agent and to each Lender a Reserve
Report, which Reserve Report shall be dated as of the immediately preceding
December 31 and shall set forth the Proved Reserves attributable to all or
substantially all of the Oil and Gas Properties then owned by the Borrower and
its Restricted Subsidiaries and the PV attributable thereto as contemplated in
the definition of Reserve Report;
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(g) 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;
(h) 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; and
(i) concurrently with any delivery of financial statements under
subsections (a) or (b) of this Section 5.01, written notice of any changes in
the Borrower's hedging arrangements since the date of the last such notice.
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
$50,000,000; 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
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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,
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 and Letters of Credit. The proceeds of the
Loans will be used to repay outstanding bank debt and 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 and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, 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.
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(b) The Borrower will not permit any Restricted Subsidiary to incur
Indebtedness (including for this purpose, the amount of such Indebtedness of the
Borrower that is Guaranteed by such Restricted Subsidiaries) except for (i)
Indebtedness of a Restricted Subsidiary in respect of letters of credit issued
for the account of such Restricted Subsidiary that does not secure Indebtedness
or obligations of the Borrower or an Unrestricted Subsidiary, (ii) Indebtedness
owed by such Restricted Subsidiary to the Borrower or to another Restricted
Subsidiary; (iii) Indebtedness of a Person that becomes, by acquisition or
merger, a Restricted Subsidiary which Indebtedness (A) existed prior to the time
of such acquisition or merger and not incurred or created in contemplation of
such acquisition or merger and (B) is repaid or otherwise ceases to be
indebtedness of a Restricted Subsidiary within 270 days after such acquisition
or merger; (iv) Indebtedness of any Restricted Subsidiary in respect of
production payments, forward sales and similar arrangements and other secured
Indebtedness referred to in Section 6.02(g); and (v) other Indebtedness
outstanding at such time for all Restricted Subsidiaries (but without
duplication) in an aggregate amount not exceeding $250,000,000.
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 (iv) 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 $250,000,000 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
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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;
(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; and
(g) production payments, forward sales and similar arrangements and
other secured Indebtedness; provided that the amount of Indebtedness
attributable thereto does not exceed fifteen percent (15%) of Consolidated Net
Tangible Assets determined as of the time each such production payment, forward
sale or similar arrangement or other secured Indebtedness is entered into and
determined based upon the financial statements then most recently delivered
pursuant to Section 5.01(a) and (b), and without reduction to Consolidated Net
Tangible Assets on account of any such production payment, forward sale or
similar arrangement or other secured Indebtedness.
Section 6.03 Fundamental Changes.
(a) The Borrower will not 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, any
Person may merge into the Borrower in a transaction in which the surviving
entity is the Borrower.
(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.
(c) The Borrower will not permit, on any day during the period, if
any, after the occurrence of a Sub-Investment Grade Date and prior to the
occurrence of a Stable Investment Grade Date (each day in such period called a
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"determination day"), the ratio of (i) PV to (ii) Total Debt on such
determination day to be less than (A) 1.50 to 1.0 if such determination day
occurs on or prior to March 31, 2007, or (B) 1.75 to 1.0 if such determination
day occurs after March 31, 2007.
Section 6.05 Investments, Loans, Advances and Guarantees. (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 June
30, 2005, 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 Restricted Subsidiary shall Guarantee Indebtedness of the
Borrower unless it shall have previously or concurrently therewith Guaranteed
the obligations under the Loan Documents on at least an equal and ratable basis
with such Indebtedness of the Borrower, by execution and delivery of a
Subsidiary Guaranty to the Administrative Agent together with the items in
Section 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) transactions 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
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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 or any
reimbursement obligation in respect of any LC Disbursement 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
Article) 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 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, any Subsidiary Guaranty 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 (other than those specified in clause (a), (b) or (d) of
this Article), 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);
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(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 and such failure continues beyond any applicable period of grace
provided therefor 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;
(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, (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
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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), 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
event with respect to an Obligor described in clause (h) or (i) of this Article,
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 and the Issuing
Banks 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
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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.
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, the Issuing Banks 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
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the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks , 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 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.
Section 8.02 The Co-Arrangers, Joint Bookrunners, Syndication Agent and
Co-Documentation Agents The Co-Arrangers, Joint Bookrunners, Syndication Agent
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 (or
Issuing Bank, if applicable) 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 Richard P. Dealy (Facsimile No. (972)
969-3572);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 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, N.A., 600 Travis Street, 20th Floor, Houston, Texas
77002, Attention of Mr. Peter Licalzi (Facsimile No. (713) 216-4117);
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(c) if to the Issuing Banks, to JPMorgan Chase Bank, N.A. at the
address set forth in paragraph (b) above, to each of Wachovia Bank, National
Association and Bank of America, N.A. at its address (or telecopy number) set
forth below
Wachovia Bank, National Association
301 South College Street
6th Floor - NC0760
Charlotte, North Carolina 28288
Attn: Anita Black, Wachovia Securities
Telephone: (704) 715-1469
Fax: (704) 374-4793
anitap.black@wachovia.com
Bank of America, N.A.
Trade Finance Service Center
333 S. Beaudry Avenue
Mail Code: CA9-703-19-23
Los Angeles, California 90017-1466
Attn: Thelma Chan
Telephone: (213) 345-0084
Fax: (213) 345-6684
(d) if to the Swingline Lenders, to JPMorgan Chase Bank, N.A. at the
address set forth in paragraph (b) above, to Wachovia Bank, National Association
at its address (or telecopy number) set forth in its Administrative
Questionnaire.
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
(f) 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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Section 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Banks
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, the
Issuing Banks 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, 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 or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Banks 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 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 LC Disbursement 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 LC
Disbursement, 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 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, the Issuing
Banks or the Swingline Lenders hereunder without the prior written consent of
the Administrative Agent, the Issuing Banks or the Swingline Lenders, as the
case may be.
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 Co-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 or any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
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expenses incurred by the Issuing Banks in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Issuing Banks or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the Administrative
Agent, the Issuing Banks or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the Subsidiary
Guaranties, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit. Attorneys' fees
reimbursed by Borrower in connection with the matters under clause (iii) above
shall be for a single law firm per country (unless conflicts (including
conflicts between the Administrative Agent, the Co-Arrangers 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, the Issuing
Banks , 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 Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Banks to honor or demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (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 EXTEND TO EACH INDEMNITEE NOTWITHSTANDING THE
SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER WHATSOEVER, WHETHER
ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT
LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT
(SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNITEES OR BY REASON OF STRICT
LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNITEES; 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, WILFUL MISCONDUCT OF SUCH
INDEMNITEE OR BREACH OF CONTRACTUAL UNDERAKING OF SUCH INDEMNITEE.
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(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Banks or the
Swingline Lenders under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Banks or the
Swingline Lenders, as the case may be, 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, the
Issuing Banks or the Swingline Lenders 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 Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
30 days after written demand therefor.
Section 9.04 Successors and Assigns.
(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 (including any Affiliates of the Issuing Banks that issue any
Letters of Credit), 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. 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 (including any Affiliates of
the Issuing Banks that issue any Letters of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Banks 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
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(B) the Administrative Agent and each Issuing Bank, provided
that no consent of the Administrative Agent or any Issuing Bank shall be
required for an assignment of any Revolving Commitment to an assignee that is a
Lender with a Revolving 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;
(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, managed or underwritten 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, 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
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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.
(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 LC Disbursements 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, Bank of America, N.A.,
as Issuing Bank, 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, the Issuing Bank 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 and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such 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, the
Administrative Agent, the Issuing Bank or the Swingline Lenders, 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, the Issuing Banks 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, 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.
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(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
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Banks 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 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 or any
Letter of Credit is outstanding 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 Letters of Credit and 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. This Agreement, the other Loan Documents
and any separate letter agreements with respect to fees payable to the
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Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and thereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof and thereof. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES HERETO AND THERETO AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 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
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
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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, the Issuing
Banks 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 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, 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, (iii) to its advisors (other than its
accountants and legal counsel), (iv) to an investor or prospective investor in
an Approved Fund that also agrees that Information shall be used solely for the
purpose of evaluating an investment in such Approved Fund, (v) to a trustee,
collateral manager, servicer, backup servicer, noteholder or secured party in an
Approved Fund in connection with the administration, servicing and reporting on
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the assets serving as collateral for an Approved Fund, or (vi) to a nationally
recognized rating agency that requires access to information regarding the
Borrower, the Loans and Loan Documents in connection with ratings issued with
respect to an Approved Fund, (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, "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, the Issuing Banks or any Lender on a nonconfidential basis
prior to disclosure by the Borrower.
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, 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 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 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
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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]
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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/ Richard P. Dealy
------------------------------
Richard P. Dealy
Executive Vice President and
Chief Financial Officer
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Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
Administrative Agent & Lender: JPMORGAN CHASE BANK, N.A.
By: /s/ Robert C. Mertensotto
------------------------------
Name: Robert C. Mertensotto
Title: Managing Director
Co-Arranger: J.P. MORGAN SECURITIES INC.
By: /s/Ronald Dierker
------------------------------
Name: Ronald Dierker
------------------------------
Title: Vice President
------------------------------
Co-Arranger: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Shannan Townsend
------------------------------
Name: Shannan Townsend
Title: Director
Syndication Agent & Lender: WACHOVIA BANK, NATIONAL
ASSOCIATIONC
By: /s/ Shannan Townsend
------------------------------
Name: Shannan Townsend
Title: Director
Signature Page 2
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
Documentation Agent & Lender: BANK OF AMERICA, N.A.
By: /s/ Ronald E. McKaig
------------------------------
Name: Ronald E. McKaig
Title: Senior Vice President
Documentation Agent: DEUTSCHE BANK SECURITIES INC.
By: /s/ Ranier Meier
------------------------------
Name: Ranier Meier
Title: Assistant Vice President
By: /s/ Ming K Chu
------------------------------
Name: Ming K Chu
Title: Vice President
Lender: DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Ranier Meier
------------------------------
Name: Ranier Meier
Title: Assistant Vice President
By: /s/ Ming K. Chu
------------------------------
Name: Ming K. Chu
Title: Vice President
Signature Page 3
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
Documentation Agent & Lender: WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ David C. Brooks
------------------------------
Name: David C. Brooks
Title: Vice President
Lenders: ABN AMRO
By: /s/ Jim Moyes
------------------------------
Name: Jim Moyes
Title: Managing Director
By: /s/ John Reed
------------------------------
Name: John Reed
Title: Director
CITIBANK, N.A.
By: /s/ Jim Reilly
------------------------------
Name: Jim Reilly
Title: Attorney-In-Fact
Signature Page 4
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
CALYON NEW YORK BRANCH
By: /s/ Bertrand Cord'homme
------------------------------
Name: Bertrand Cord'homme
Title: Director
By: /s/ Dennis Petito
------------------------------
Name: Dennis Petito
Title: Managing Director
CREDIT SUISSE, Cayman Islands Branch
(formerly CREDIT SUISSE FIRST BOSTON
acting through its Cayman Islands
Branch
By: /s/ Ian Nalitt
------------------------------
Name: Ian Nalitt
Title: Vice President
By: /s/ Denise L. Alvarez
------------------------------
Name: Denise L. Alvarez
Title: Associate
Signature Page 5
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
THE BANK OF NOVA SCOTIA
By: /s/ Nadine Bell
------------------------------
Name: Nadine Bell
Title: Senior Manager
SCOTIABANC INC.
By: /s/ Nadine Bell
------------------------------
Name: Nadine Bell
Title: Senior Manager
SUNTRUST BANK
By: /s/ James M. Warren
------------------------------
Name: James M. Warren
Title: Managing Director
Signature Page 6
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Scott Myatt
------------------------------
Name: Scott Myatt
------------------------------
Title: Assistant Vice President
------------------------------
BARCLAYS BANK PLC
By: /s/ Alison McGuigan
------------------------------
Name: Alison McGuigan
Title: Associate Director
BNP PARIBAS
By: /s/ David Dodd
------------------------------
Name: David Dodd
Title: Director
By: /s/ Betsy Jocher
------------------------------
Name: Betsy Jocher
Title: Vice President
Signature Page 7
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
THE BANK OF NEW YORK
By: /s/ Craig J. Anderson
------------------------------
Name: Craig J. Anderson
Title: Vice President
DNB NOR BANK ASA
By: /s/ Peter M. Dodge
------------------------------
Name: Peter M. Dodge
Title: Senior Vice President
By: /s/ Espen Kvilekval
------------------------------
Name: Espen Kvilekval
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Raymond Ventura
------------------------------
Name: Raymond Ventura
Title: Senior Vice President
Signature Page 8
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Mark E. Thompson
------------------------------
Name: Mark E. Thompson
Title: Vice President
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Patricia Dundee
------------------------------
Name: Patricia Dundee
Title: Senior Vice President
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: /s/ William W. Archer
------------------------------
Name: William W. Archer
Title: Managing Director
Signature Page 9
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
HARRIS NESBITT FINANCING, INC.
(formerly BMO Nesbitt Burns
Financing, Inc.)
By: /s/ James V. Ducote
-----------------------------
Name: James V. Ducote
Title: Vice President
KBC BANK N.V.
By: /s/ Eric Raskin
-----------------------------
Name: Eric Raskin
Title: Vice President
By: /s/ Robert Snauffer
-----------------------------
Name: Robert Snauffer
Title: First Vice President
TORONTO DOMINION (TEXAS) LLC
By: /s/ Jim Bridwell
-----------------------------
Name: Jim Bridwell
Title: Authorized Signatory
Signature Page 10
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
UFJ BANK LIMITED
By: /s/ Shigeru Shimizu
-----------------------------
Name: Shigeru Shimizu
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ Toba Lumbantobing
-----------------------------
Name: Toba Lumbantobing
Title: Associate Director
Banking Products
Services, US
By: /s/ Barbara Ezell-McMichael
-----------------------------
Name: Barbara Ezell-McMichael
Title: Associate Director
Banking Products
Services, US
SOCIETE GENERALE
By: /s/ James Kimble
----------------------------
Name: James Kimble
Title: Vice President
Signature Page 11
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
1. Issuing Bank: Bank of America, N.A.
Beneficiary: Acstar Insurance Company
Amount: $150,000
Date of Issue: 9/15/1994
Expiration: 9/15/2006
2. Issuing Bank: Bank of America, N.A.
Beneficiary: Citibank, N.A. Gabon BP
Amount: $150,000
Date of Issue: 5/02/2002
Expiration: 12/31/2005
3. Issuing Bank: JPMorgan Chase Bank, N.A.
Beneficiary: Nigerian National Petroleum
Amount: $35,000,000
Date of Issue: 5/17/2004
Expiration: 5/17/2006
Schedule 1.01
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
SCHEDULE 2.01
COMMITMENTS
Lender Amount of Percentage of Total
Commitment Commitments*
- ---------------------------------------------- ----------------- ------------------
JPMorgan Chase Bank, N.A. $90,000,000.00 6.00%
Wachovia Bank, National Association $90,000,000.00 6.00%
Bank of America, N.A. $90,000,000.00 6.00%
Deutsche Bank AG New York Branch $90,000,000.00 6.00%
Wells Fargo Bank, National Association $90,000,000.00 6.00%
ABN Amro $65,000,000.00 4.33%
Calyon New York Branch $65,000,000.00 4.33%
Citibank, N.A. $65,000,000.00 4.33%
The Royal Bank of Scotland plc $65,000,000.00 4.33%
Suntrust Bank $65,000,000.00 4.33%
Scotiabanc Inc. $50,000,000.00 3.33%
The Bank of Nova Scotia $15,000,000.00 1.00%
BNP Paribas $50,000,000.00 3.33%
Den norske Bank ASA $50,000,000.00 3.33%
Mizuho Corporate Bank, Ltd. $50,000,000.00 3.33%
<FN>
- -------------
*Percentages are rounded to nearest one-hundredth
</FN>
Schedule 2.01
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
Lender Amount of Percentage of Total
Commitment Commitments*
- ---------------------------------------------- ----------------- ------------------
UBS Loan Finance LLC $50,000,000.00 3.33%
UFJ Bank Limited $50,000,000.00 3.33%
Union Bank of California, N.A. $50,000,000.00 3.33%
Bank of Montreal $40,000,000.00 2.66%
Barclays Bank PLC $40,000,000.00 2.66%
Credit Suisse First Boston, acting through its $40,000,000.00 2.66%
Cayman Islands Branch
Goldman Sachs Credit Partners L.P. $40,000,000.00 2.66%
KBC Bank N.V. $40,000,000.00 2.66%
Societe Generale $40,000,000.00 2.66%
U.S. Bank National Association $40,000,000.00 2.66%
The Bank of New York $40,000,000.00 2.66%
Toronto Dominion (Texas), Inc. $40,000,000.00 2.66%
TOTAL: $1,500,000,000.00 100.00%
Schedule 2.01
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
SCHEDULE 2.13
SWINGLINE LOAN RATE CALCULATION
The rate of interest for a Swingline Loan shall be (a) the "ASK" rate for
Federal Funds appearing on Page 5 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 the offer rates
applicable to Federal Funds for a term of one Business Day) at the time reviewed
by the Administrative Agent plus (b) the Applicable Margin for the Eurodollar
Spread. In the event that part (a) of such rate is not available at such time
for any reason, then part (a) of such rate will be the rate agreed to between
the Administrative Agent and the Borrower. The Borrower understands and agrees
that the rate quoted from Page 5 of the Dow Jones Market Service is a real-time
rate that changes from time to time. The rate quoted by the Administrative Agent
and used for the purpose of setting the interest rate for a Swingline Loan will
be the rate on the screen of the Administrative Agent at the time of setting the
rate and will not be an average or composite of rates for that day.
Schedule 2.13
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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.
MOSH Holding, L.P. v Pioneer Natural Resources Company; Pioneer Natural
Resources USA, Inc; Woodside Energy (USA) Inc.; and JPMorgan Chase Bank, NA as
Trustee of the Mesa Offshore Trust, filed April 11, 2005 in the District Court
of Travis County, Texas (250th Judicial District)
Asociacion de Superficiarios de la Patagonia v. YPF S.A., et. al., originally
filed on August 21, 2003, in the Argentine National Supreme Court of Justice.
Schedule 3.06
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
SCHEDULE 6.02
LIENS
NONE
Schedule 6.02
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
SCHEDULE 6.08
EXISTING RESTRICTIVE AGREEMENTS
NONE
Schedule 6.08
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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 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 letters of credit, guarantees, and
swingline loans 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
5. Credit Agreement: The Amended and Restated 5-Year Credit Agreement
dated as of September 30, 2005 among Pioneer Natural
- -------------
1 Select as applicable.
EXHIBIT A-1
EXECUTION COPY
Resources Company, the Lenders parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent,
and the other agents parties thereto
EXHIBIT A-2
EXECUTION COPY
6. Assigned Interest:
- -------------------------------------------------------------------------------------------------
Facility Assigned(2) Aggregate Amount of Amount of Percentage Assigned of
Commitment/Loans for all Commitment/Loans Commitment/Loans(3)
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., "Revolving
Commitment," "Tranche A Commitment," "Tranche B Commitment," etc.)
(3) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
EXHIBIT A-3
EXECUTION COPY
Consented to and Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By
-------------------------------
Title:
Consented to:
[NAME OF RELEVANT PARTY]
By
--------------------------------
Title:
EXHIBIT A-4
EXECUTION COPY
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
Lender(5), 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-5
EXECUTION COPY
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-6
EXECUTION COPY
EXHIBIT B
FORM OF
NOTICE OF COMMITMENT INCREASE
[Date]
JPMorgan Chase Bank, N.A.,
[ ]
Attention: __________________
Ladies and Gentlemen:
The undersigned, Pioneer Natural Resources Company ("PNRC"), refers to the
Amended and Restated 5-Year Revolving Credit Agreement dated as of September 30,
2005 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement", with terms defined in the Credit Agreement and not otherwise
defined herein being used herein as therein defined) among PNRC, as borrower,
and JPMorgan Chase Bank, N.A., as Administrative Agent, and the Lenders party
thereto. PNRC hereby notifies you, pursuant to Section 2.02 of the Credit
Agreement, that PNRC hereby requests that the aggregate amount of the
Commitments under the Credit Agreement be increased and the CI Lenders agree to
provide Commitments under the Credit Agreement, and in that connection sets
forth below the information relating to such proposed Commitment Increase as
required by Section 2.02(b) of the Credit Agreement:
(a) the effective date of such increase of aggregate amount of the Lenders'
Commitments is _______________;
(b) the amount of the requested increase of the Commitments is
$__________________;
(c) the CI Lenders that have agreed with PNRC to provide or increase their
respective Commitments, are _____________________________ [INSERT NAMES OF THE
CI LENDERS]; and
(d) set forth on Annex I attached hereto is the amount of the respective
Commitments of all Reducing Percentage Lenders and all CI Lenders as of
effective date of such Commitment Increase.
Delivery of an executed counterpart of this Notice of Commitment Increase
by telecopier shall be effective as delivery of an original executed counterpart
of this Notice of Commitment Increase.
Exhibit B-1
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
Very truly yours,
PIONEER NATURAL RESOURCES COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Approved and Consented to by:
JPMORGAN CHASE BANK, N.A.,
administrative agent
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
Exhibit B-2
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
ANNEX I
TO
NOTICE OF COMMITMENT INCREASE
(as of _________, 20__)
Lender Amount of Percentage of Total
Commitment Commitments
- ------------------------- -------------------- -------------------------
JPMorgan Chase Bank, N.A.
TOTAL: [1,500,000,000.00] 100.0000000%
Exhibit B-3
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
EXHIBIT C
FORM OF
OPINION OF BORROWER'S COUNSEL
Exhibit C
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
EXHIBIT D
FORM OF
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is dated as of [ ] made by [ ], a [ ] (the
"Subsidiary Guarantor"), in favor of JPMorgan Chase Bank, N.A., 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 Amended and
Restated 5-Year Revolving Credit Agreement dated as of September 30, 2005 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Pioneer Natural Resources Company (the "Borrower"), the
Administrative Agent, the Issuing Banks, the Lenders party thereto, Wachovia
Bank, National Association, as Syndication Agent, Bank of America, N.A.,
Deutsche Bank Securities Inc., Wells Fargo Bank, National Association, as
Co-Documentation Agents, and J.P. Morgan Securities Inc. and Wachovia Capital
Markets, LLC, as Co-Arrangers and Joint Bookrunners.
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, THEREFOR, 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 the LC Exposure 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 LC Exposure and interest accruing after the
Exhibit D-1
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or 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, the Issuing Banks 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
Exhibit D-2
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
collected from such Subsidiary Guarantor in respect of the Liabilities), remain
liable for the Liabilities up to the maximum liability of such Subsidiary
Guarantor hereunder until the Liabilities are paid in full in cash, no Letter of
Credit shall be outstanding 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 D-3
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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, no Letter of Credit shall be outstanding 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, any Letter of Credit shall be outstanding 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 D-4
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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
Exhibit D-5
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
contemplated hereby and the Borrower, the Borrower's business, assets,
operations, prospects and condition, financial or otherwise, and any
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 Co-Arrangers and the other Lenders as determined in the reasonable
Exhibit D-6
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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 D-7
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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.
Exhibit D-8
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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.
PIONEER NATURAL RESOURCES USA INC.
By:
Name:
Title:
Address:
Exhibit D-9
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
EXHIBIT E
FORM OF
PROMISSORY NOTE
$[ ] [ ], 200[ ]
FOR VALUE RECEIVED, Pioneer Natural Resources Company, a Delaware
corporation, (the "Borrower") hereby promises to pay to the order of [ ] (the
"Lender"), at the principal office of JPMorgan Chase Bank, N.A. (the
"Administrative Agent"), at [ ], the principal sum of [ ] Dollars ($[ ]) (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 Amended and Restated
5-Year Credit Agreement dated as of September 30, 2005 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 G
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
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 G
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
EXHIBIT F
FORM OF
REQUEST FOR EXTENSION OF FACILITY MATURITY DATE
[Date]
Ladies and Gentlemen:
Reference is made to the Amended and Restated 5-Year Revolving Credit
Agreement dated as of September 30, 2005 (as amended, the "Credit Agreement")
among Pioneer Natural Resources Company, the Lenders party thereto, and JPMorgan
Chase Bank, N.A., as Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. In accordance with Section 2.20 of the Credit Agreement, the
undersigned hereby requests an extension of the Maturity Date from September [
], [ ] to September [ ], [ ].
Very truly yours,
PIONEER NATURAL RESOURCES COMPANY
by
-----------------------------
Name:
Title:
Exhibit G
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
EXHIBIT G
FORM OF
JOINDER AGREEMENT
This Joinder Agreement (the "Joinder") is dated as of ______________, ____
(the "Effective Date") and is entered into by and between [Insert name of
Lender] (the "Lender") and JPMorgan Chase Bank, N.A. (the "Administrative
Agent"). Capitalized terms used but not defined herein shall have the meanings
given to them in the Amended and Restated 5-Year Revolving Credit Agreement
dated as of September 30, 2005 among Pioneer Natural Resources Company, the
Administrative Agent and the lenders party thereto (as amended, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by the Lender.
The Lender (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Joinder 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 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 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 8.01 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 Joinder and to commit to its Commitment
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 Lender, attached to the Joinder is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Lender; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own 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.
This Joinder shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Joinder 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
Joinder by telecopy shall be effective as delivery of a manually executed
counterpart of this Joinder. This Joinder shall be governed by, and construed in
accordance with, the law of the State of Texas.
LENDER
[NAME OF LENDER]
By:
--------------------------------
Title:
Exhibit G
Amended and Restated 5-Year Revolving Credit Agreement
EXECUTION COPY
ADMINISTRATIVE AGENT
[NAME OF ADMINISTRATIVE AGENT]
By:
-------------------------------
Title:
Consented to
PIONEER NATURAL RESOURCES COMPANY
By:
------------------------------
Name:
Title:
Exhibit G
Amended and Restated 5-Year Revolving Credit Agreement