SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 7, 1997
PIONEER NATURAL RESOURCES COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 333-26951 75-2702753
(State or other jurisdiction of Registration (I.R.S. Employer
incorporation or organization) File Number Identification Number)
1400 Williams Square West, 5205 N. O'Connor Blvd., Irving, Texas 75039
(Address of principal executive offices) (Zip code)
Registrant's Telephone Number, including area code : (972) 444-9001
Not applicable
(Former name, former address and former fiscal year,
if changed since last report)
Page 1 of 22 pages.
Exhibit Index on page 22.
1
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PIONEER NATURAL RESOURCES COMPANY
TABLE OF CONTENTS
Page
----
Item 1. Change in Control of Registrant.................................. 3
Item 2. Acquisition or Disposition of Assets............................. 3
Item 7. Financial Statements and Exhibits:............................... 6
Preliminary Statement.......................................... 6
Unaudited Pro Forma Combined Financial Statements:
Unaudited Pro Forma Combined Balance Sheet for Pioneer
Natural Resources Company as of June 30, 1997............. 7
Unaudited Pro Forma Combined Statement of Operations for
Pioneer Natural Resources Company for the six months
ended June 30, 1997....................................... 8
Unaudited Pro Forma Combined Statement of Operations for
Pioneer Natural Resources Company for the year ended
December 31, 1996......................................... 9
Unaudited Pro Forma Combined Statement of Operations for
Parker & Parsley Petroleum Company for the year ended
December 31, 1996......................................... 10
Unaudited Pro Forma Combined Statement of Operations for
Mesa Inc. for the year ended December 31, 1996............ 11
Notes to Unaudited Pro Forma Combined Financial Statements..... 12
Exhibits....................................................... 20
Signatures..................................................... 21
Exhibit Index.................................................. 22
2
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The information in this document includes forward-looking statements that are
based on assumptions that in the future may prove not to have been accurate.
Those statements, and Pioneer Natural Resources Company's business and
prospects, are subject to a number of risks including the volatility of oil and
gas prices, environmental risks, operating hazards and risks, risks associated
with natural gas processing plants, risks related to exploration and development
drilling, uncertainties about estimates of reserves, competition, government
regulation, and the ability of Pioneer Natural Resources Company to implement
its business strategy. These and other risks are described in the 1996 Annual
Reports on Form 10-K for Parker & Parsley Petroleum Company and Mesa Inc. which
are available from the United States Securities and Exchange Commission.
Item 1. Changes in Control of Registrant
Pioneer Natural Resources Company ("Pioneer"), a Delaware corporation,
was formed in order to complete the merger proposed by and between Parker &
Parsley Petroleum Company ("Parker & Parsley") and Mesa Inc. ("Mesa"). Pioneer
was originally created as a wholly-owned subsidiary of Mesa, a Texas
corporation, the purpose of which was to allow Mesa to reincorporate into a
Delaware corporation and to accomplish the merger with Parker & Parsley. Both
Parker & Parsley and Mesa are oil and gas exploration and production concerns
with ownership interests in oil and gas properties located principally in the
MidContinent, Southwestern and onshore and offshore Gulf Coast regions of the
United States, and with limited international interests.
As a result of the Mergers described in "Item 2. Acquisition or
Disposition of Assets", Parker & Parsley Petroleum Company ("Parker & Parsley")
merged into Pioneer Natural Resources USA, Inc., a wholly-owned subsidiary of
Pioneer Natural Resources Company ("Pioneer"). Former Parker & Parsley
stockholders received approximately 57% of the common stock of Pioneer and
former Mesa Inc. ("Mesa") stockholders received approximately 43% of the common
stock of Pioneer. In some circumstances, this transaction could be deemed a
"change in control of a registrant". For a more complete description of these
transactions, see "Item 2. Acquisition or Disposition of Assets" below.
Item 2. Acquisition or Disposition of Assets
As of April 6, 1997, Parker & Parsley and Mesa entered into an Amended
and Restated Agreement and Plan of Merger (the "Merger Agreement") which was
approved by the stockholders of both companies on August 7, 1997 by a majority
vote of 76% by holders of Parker & Parsley common stock and 71%, 58%, and 100%
by holders of Mesa common stock, Mesa Series A 8% Cumulative Convertible
Preferred Stock ("Mesa Series A Preferred Stock") and Mesa Series B 8%
Cumulative Convertible Preferred Stock ("Mesa Series B Preferred Stock"),
respectively. Mesa was a publicly traded independent oil and gas company based
in Irving, Texas with substantial producing properties and operations in the
MidContinent region of the United States. The Merger Agreement provided for (i)
the merger of Mesa with and into Pioneer, a wholly-owned subsidiary of Mesa, as
a result of which Mesa, a Texas corporation, reincorporated into Delaware and
(ii) the merger of Parker & Parsley with and into Mesa Operating Co. ("MOC"), a
wholly-owned subsidiary of Mesa (items (i) and (ii) collectively the "Mergers").
In accordance with the Merger Agreement, (i) holders of Parker & Parsley common
stock received one share of Pioneer common stock for each share held; (ii)
holders of Mesa common stock received one share of Pioneer common stock for
every seven shares held; and (iii) holders of Mesa Series A Preferred Stock and
Mesa Series B Preferred Stock received 1.25 shares of Pioneer common stock for
every seven shares held. No fractional shares were issued and all treasury
shares were canceled.
As a result of the Mergers, former Parker & Parsley stockholders received
approximately 57% of the common stock of Pioneer, and former Mesa stockholders
received approximately 43%. Also, as a result of the Mergers, Parker & Parsley
merged into a wholly-owned subsidiary of Pioneer that is now known as Pioneer
Natural Resources USA, Inc. For a complete description of the Mergers and of
Pioneer, see Pioneer's Registration Statement on Form S-4 (File No. 333-26951)
which is incorporated herein by reference.
In accordance with the provisions of Accounting Principles Board No. 16,
"Business Combinations", the merger has been accounted for as a purchase of Mesa
by Parker & Parsley. As a result, historical financial statements for Pioneer
will be those of Parker & Parsley, and Pioneer's financial statements will
present the addition of Mesa's assets and liabilities as an acquisition by
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Parker & Parsley. The aggregate Pioneer purchase consideration related to the
assets and liabilities of Mesa, including estimated nonrecurring merger
transaction costs, is $999.5 million. See "Item 7. Financial Statements and
Exhibits" for the preliminary allocation of the total purchase price of Mesa to
the acquired assets and liabilities based upon the estimated fair values
assigned to each of the significant assets acquired and liabilities assumed. Any
future adjustments to the allocation of the purchase price are not anticipated
to be material to Pioneer's financial statements.
Description of Properties
For a complete description of the properties of Parker & Parsley and
Mesa, see Pioneer's Registration Statement on Form S-4 (File No. 333-26951)
which is incorporated herein by reference.
Credit Facility Agreements
On August 7, 1997, the successor to Parker & Parsley and MOC, Pioneer
Natural Resources USA, Inc. (the "Borrower"), entered into two Credit Facility
Agreements ("Credit Facility Agreements") with a syndicate of banks (the
"Banks") that refinanced the credit facilities of Parker & Parsley and Mesa as
of the date of merger of the two companies. One Credit Facility Agreement (the
"Primary Facility") provides for a $1.1 billion credit facility. The maturity
date for the Primary Facility is August 7, 2002. The second Credit Facility
Agreement (the "364-day Facility") provides for a $300 million credit facility
with a maturity date of August 5, 1998. The Borrower has the option to renew the
364-day Facility for another period of 364 days by notifying the Banks in
writing of such election not more than 60 days and not less than 45 days prior
to the maturity date. The prior credit agreements of Parker & Parsley and Mesa
were paid in full following the Mergers utilizing proceeds from initial
borrowings against the new Primary Facility of $675 million.
Advances on both Credit Facility Agreements bear interest, at the
Borrower's option, based on (a) the prime rate of NationsBank of Texas, N.A.,
(b) a Eurodollar rate (substantially equal to the London Interbank Offered Rate
("LIBOR")), adjusted for the reserve requirement as determined by the Board of
Governors of the Federal Reserve System with respect to transactions in
Eurocurrency liabilities ("LIBOR Rate"), or (c) a competitive bid rate as quoted
by the Banks electing to participate pursuant to a request by the Borrower.
Advances that are LIBOR Rate have periodic maturities, at the Borrower's option,
of one, two, three, six, nine or twelve months. Maturities of greater than six
months are subject to availability of such deposits in the relevant markets.
Advances that are competitive bid rate have periodic maturities, at the
Borrower's option, of not less than 15 days nor more than 360 days. The interest
rates on LIBOR Rate advances vary with interest rate margins ranging from 18
basis points to 45 basis points. The interest rate margin is determined by a
grid based upon Pioneer's senior unsecured long-term public debt rating.
The obligations of the Borrower under the Credit Facility Agreements are
guaranteed by Pioneer and certain of its subsidiaries unless and to the extent
any such subsidiary has been designated as an "Unrestricted Subsidiary" by the
Borrower pursuant to the Credit Facility Agreements. Certain subsidiaries of the
Borrower which have not been designated as Unrestricted Subsidiaries have not
provided guaranties because either (a) such guaranty would result in adverse tax
consequences pursuant to Section 956 of the Internal Revenue Code of 1986, as
amended, or (b) such subsidiary is prohibited from executing a guaranty pursuant
to contractual restrictions. In these cases, the Borrower and certain of its
subsidiaries have pledged a portion of the issued and outstanding capital stock
of such subsidiaries as security for the obligations of the Borrower under the
Credit Facility Agreements.
The Credit Facility Agreements contain various restrictive covenants and
compliance requirements, which include (a) minimum financial requirements; (b)
limits on the incurrence of additional indebtedness; and (c) limitations on
mergers.
Pioneer's Unaudited Pro Forma Combined Balance Sheet as of June 30, 1997
includes $2.5 million of unamortized capitalized issuance fees associated with
Parker & Parsley's existing bank credit facility. As a result of the new $1.4
billion dollar bank credit facility for Pioneer, such unamortized fees will be
recognized as noncash charges during the third quarter of 1997.
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After the consummation of the Mergers, Pioneer will have four outstanding
debt issuances in addition to the new credit facilities described above. Such
debt issuances consist of (i) $150 million aggregate principal amount of 8 7/8%
senior notes issued by Parker & Parsley in 1995 and due in 2005, (ii) $150
million aggregate principal amount of 8 1/4% senior notes issued by Parker &
Parsley in 1995 and due in 2007, (iii) $325 million aggregate principal amount
of 10 5/8% Senior Subordinated Notes issued by Mesa in 1996 and due 2006 and
(iv) $264 million aggregate principal amount of 11 5/8% Senior Subordinated
Discount Notes issued by Mesa in 1996 and due 2006. These four issuances are or
will be guaranteed by Pioneer (the parent of Pioneer Natural Resources USA,
Inc.) subsequent to the Mergers.
Vote of Security Holders
On August 7, 1997, Parker & Parsley and Mesa each held a Special Meeting
for their respective stockholders in Dallas, Texas. At both meetings, the
following three proposals were submitted for vote to the stockholders: (i) to
approve and adopt the Merger Agreement dated as of April 6, 1997 among Parker &
Parsley, Mesa and its subsidiaries Pioneer and MOC, which provides for the
business combination of Parker & Parsley and Mesa (as a result of the business
combination, Mesa, which is a Texas corporation, will reincorporate to Delaware
by merging into Pioneer and Parker & Parsley will merge into MOC), (ii) to
approve the adoption of the Pioneer Long-Term Incentive Plan and (iii) to
approve the adoption of the Pioneer Employee Stock Purchase Plan. Additionally,
stockholders of Mesa were asked to consider and vote upon a separate proposal to
approve the adoption of the Mesa 1996 Incentive Plan. Each of the proposals was
approved by Parker & Parsley's and Mesa's stockholders as follows:
<TABLE>
Parker & Parsley
<CAPTION>
Broker
Proposal For Against Abstain Non-Votes
-------- ---------- ---------- --------- ---------
<S> <C> <C> <C> <C>
Merger Agreement 26,837,927 116,119 162,228 -
Long-Term Incentive Plan 17,625,487 9,206,701 284,086 -
Employee Stock Purchase Plan 26,254,862 582,103 279,309 -
Mesa
Broker
Proposal For Against Abstain Non-Votes
-------- ---------- --------- --------- ---------
Merger Agreement
Common stockholders of Mesa 45,946,840 1,068,821 2,259,454 -
Preferred Series A stockholders of Mesa 36,054,385 8,953,770 4,125,626 -
Preferred Series B stockholders of Mesa 62,424,436 - - -
Pioneer Long-Term Incentive Plan
Common stockholders of Mesa 39,505,930 6,668,536 3,100,649 -
Preferred Series A stockholders of Mesa 34,019,452 7,940,429 7,173,900 -
Preferred Series B stockholders of Mesa 62,424,436 - - -
Employee Stock Purchase Plan
Common stockholders of Mesa 43,605,373 2,614,233 3,055,509 -
Preferred Series A stockholders of Mesa 38,146,770 3,797,918 7,189,093 -
Preferred Series B stockholders of Mesa 62,424,436 - - -
Mesa Incentive Plan
Common stockholders of Mesa 35,657,052 10,554,566 3,063,497 -
Preferred Series A stockholders of Mesa 33,186,078 8,762,547 7,185,156 -
Preferred Series B stockholders of Mesa 62,424,436 - - -
</TABLE>
5
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Unaudited Pro Forma Combined Financial Statements of
Pioneer Natural Resources Company
Item 7. Financial Statements and Exhibits:
Financial Statements of Acquired Entity and Pro Forma Financial Information
The unaudited pro forma combined balance sheet and statements of
operations have been prepared to give effect to certain transactions as
described below.
The unaudited pro forma combined balance sheet of Pioneer as of June 30,
1997 has been prepared to give effect to (i) the Mergers as if such
transactions had occurred on June 30, 1997 (in accordance with the
provisions of APB No. 16, "Business Combinations", the Mergers have been
accounted for as a purchase of Mesa by Parker & Parsley) and (ii) the
conversion of Parker & Parsley's 6 1/4% Cumulative Monthly Income
Convertible Preferred Shares ("Preferred Shares") to Pioneer common
stock.
The unaudited pro forma combined statements of operations of Pioneer for
the six months ended June 30, 1997 and for the year ended December 31,
1996 have been prepared to give effect to the Mergers and certain events
described below for Parker & Parsley and Mesa as if the Mergers and such
events had occurred on January 1, 1996.
Pro Forma Parker & Parsley has been prepared to give effect to (i) the
sale of certain wholly-owned Australian subsidiaries in March 1996 and
the sale of Bridge Oil Timor Sea, Inc. in June 1996 (collectively, the
"Australasian Assets Sold"), (ii) the aggregate effect of the sale of
certain nonstrategic domestic oil and gas properties, gas plants,
contract rights and related assets sold during the period from January 2,
1996 to December 31, 1996 (collectively, the "1996 Assets Sold") and
(iii) the exchange of Parker & Parsley's 6 1/4% Cumulative Monthly Income
Convertible Preferred Shares ("Preferred Shares") to Pioneer common stock
in August 1997.
Pro Forma Mesa has been prepared to give effect to the Recapitalization,
which entailed issuing $265 million in new preferred equity and repaying
and refinancing substantially all of Mesa's $1.2 billion of then existing
long-term debt, and the acquisition of Greenhill, including additional
borrowings to finance such acquisition.
The unaudited pro forma combined financial statements included herein are
not necessarily indicative of the results that might have occurred had the
transactions taken place at the beginning of the period specified and are not
intended to be a projection of future results. In addition, future results may
vary significantly from the results reflected in the accompanying unaudited pro
forma combined financial statements because of normal production declines,
changes in product prices, future acquisitions and divestitures, future
development and exploration activities, and other factors.
The following unaudited pro forma combined financial statements should be
read in conjunction with (i) the Consolidated Financial Statements (and the
related notes) of both Parker & Parsley and Mesa included in their respective
Annual Reports on Form 10-K and Form 10-K/A for the year ended December 31, 1996
and their respective Quarterly Reports on Form 10-Q for the three months ended
March 31, 1997 and for the six months ended June 30, 1997 and (ii) the
Historical Financial Statements of Greenhill for the fiscal year ended June 30,
1996 and for the six months ended December 31, 1996 (unaudited) and the related
notes thereto which are included in Mesa's Current Report on Form 8-K/A dated
February 7, 1997.
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PIONEER NATURAL RESOURCES COMPANY
UNAUDITED PRO FORMA COMBINED BALANCE SHEET
as of June 30, 1997
(in thousands)
<TABLE>
ASSETS
<CAPTION>
Pro Forma
Parker & Combined Pro Forma
Parsley Mesa Adjustments Combined
---------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents $ 9,843 $ 20,751 (20,000) (a) $ 10,594
Restricted cash 1,723 - 1,723
Accounts receivable 71,010 45,077 116,087
Inventories 5,581 3,130 8,711
Deferred income taxes 9,300 - 9,300
Other current assets 1,955 1,874 3,829
--------- --------- ---------
Total current assets 99,412 70,832 150,244
--------- --------- ---------
Property, plant and equipment, at cost:
Oil and gas properties, using the
successful efforts method of
accounting:
Proved properties 1,536,665 2,293,133 (2,560) (a) 3,827,238
Unproved properties 41,071 44,000 85,071
Natural gas processing facilities 50,770 - 50,770
Accumulated depletion, depreciation
and amortization (489,143) (996,687) 996,687 (a) (489,143)
--------- --------- ---------
1,139,363 1,340,446 3,473,936
--------- --------- ---------
Other property and equipment, net 28,552 11,286 39,838
Other assets, net 16,175 82,894 (35,516) (a) 57,691
(5,862) (b)
--------- --------- ---------
$1,283,502 $1,505,458 $3,721,709
========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term debt $ 6,064 $ 5,305 $ 11,369
Undistributed unit purchases 1,723 - 1,723
Accounts payable 64,616 30,209 94,825
Domestic and foreign income taxes 2,038 - 2,038
Other current liabilities 14,737 23,436 38,173
--------- --------- ---------
Total current liabilities 89,178 58,950 148,128
--------- --------- ---------
Long-term debt, less current maturities 349,457 1,102,999 83,539 (a) 1,535,995
Other noncurrent liabilities 27,336 80,032 107,368
Deferred income taxes 73,800 - 139,020 (a) 212,820
Preferred stock of subsidiary 188,820 - (188,820) (b) -
Stockholders' equity:
Preferred stock - 1,266 (1,266) (a) -
Common stock 370 643 (345) (a) 736
68 (b)
Additional paid-in capital 465,234 667,860 276,911 (a) 1,592,895
182,890 (b)
Treasury stock, at cost (34,460) - 34,460 (a) -
Unearned compensation (712) - (712)
Retained earnings (deficit) 124,479 (406,292) 406,292 (a) 124,479
--------- --------- ---------
Total stockholders' equity 554,911 263,477 1,717,398
--------- --------- ---------
Commitments and contingencies
--------- --------- ---------
$1,283,502 $1,505,458 $3,721,709
========= ========= =========
</TABLE>
See accompanying notes to unaudited pro forma combined financial statements.
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PIONEER NATURAL RESOURCES COMPANY
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
Six months ended June 30, 1997
(in thousands, except per share data)
<TABLE>
<CAPTION>
Pro Forma
Parker & Combined Pro Forma
Parsley Mesa Greenhill Adjustments Combined
--------- --------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Revenues:
Oil and gas $ 198,626 $ 165,336 $ 17,369 $ 381,331
Natural gas processing 11,819 - - 11,819
Interest and other 2,833 4,693 147 7,673
Gain (loss) on disposition of
assets, net 2,637 (23) 41 2,655
-------- -------- -------- --------
215,915 170,006 17,557 403,478
-------- -------- -------- --------
Cost and expenses:
Oil and gas production 55,392 44,457 6,641 106,490
Natural gas processing 6,098 - - 6,098
Depletion, depreciation and
amortization:
Oil and gas properties 54,860 52,503 7,725 37,880(c) 152,968
Other 4,649 4,007 - 8,656
Impairment of long-lived assets - 2,907 - 2,907
Exploration and abandonments 18,415 8,067 4,059 (407)(d) 30,134
General and administrative 14,990 9,277 13,318 407(d) 37,992
Interest 20,154 48,335 - (6,010)(b) 65,346
(2,562)(e)
5,429(f)
Other 831 2,470 - 3,301
-------- -------- -------- --------
175,389 172,023 31,743 413,892
-------- -------- -------- --------
Income (loss) from continuing
operations before income taxes 40,526 (2,017) (14,186) (10,414)
Income tax benefit (provision) (14,500) - - 18,400(g) 3,900
-------- -------- -------- --------
Income (loss) from continuing
operations 26,026 (2,017) (14,186) (6,514)
Dividends on preferred stock - (11,105) - 11,105(h) -
-------- -------- -------- --------
Income (loss) from continuing
operations attributable to
common stock $ 26,026 $ (13,122) $ (14,186) $ (6,514)
======== ======== ======== ========
Income (loss) per common share $ .74 $ (.20) $ (.09)
======== ======== ========
Weighted average shares
outstanding 35,364 65,499 (33,632)(i) 73,945
6,714(b) ========
======== ========
</TABLE>
See accompanying notes to unaudited pro forma combined financial statements.
8
<PAGE>
<TABLE>
PIONEER NATURAL RESOURCES COMPANY
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
Year ended December 31, 1996
(in thousands, except per share data)
<CAPTION>
Pro Forma Pro Forma
Parker & Pro Forma Combined Pro Forma
Parsley Mesa Adjustments Combined
--------- --------- ----------- ---------
<S> <C> <C> <C> <C>
Revenues:
Oil and gas $ 374,560 $ 371,280 $ 745,840
Natural gas processing 23,184 - 23,184
Interest and other 17,328 33,824 51,152
Gain on disposition of assets, net - 11,966 11,966
-------- -------- --------
415,072 417,070 832,142
-------- -------- --------
Cost and expenses:
Oil and gas production 101,545 97,617 199,162
Natural gas processing 11,949 - 11,949
Depletion, depreciation and
amortization:
Oil and gas properties 95,628 130,370 76,933 (c) 302,931
Other 9,001 4,919 13,920
Exploration and abandonments 20,187 12,772 (831) (d) 32,128
General and administrative 26,631 41,016 831 (d) 68,478
Interest 28,700 105,266 (4,923) (e) 129,043
Other 2,451 2,340 4,791
-------- -------- --------
296,092 394,300 762,402
-------- -------- --------
Income from continuing operations
before income taxes 118,980 22,770 69,740
Income tax provision (41,600) - 15,800 (g) (25,800)
-------- -------- --------
Income from continuing operations 77,380 22,770 43,940
Dividends on preferred stock - (21,880) 21,880 (h) -
-------- -------- --------
Income from continuing operations
attributable to common stock $ 77,380 $ 890 $ 43,940
======== ======== ========
Income per common share $ 1.82 $ .01 $ .59
======== ======== ========
Weighted average shares
outstanding 42,448 64,164 (32,366) (i) 74,246
========= ========= =========
</TABLE>
See accompanying notes to unaudited pro forma combined financial statements.
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<PAGE>
<TABLE>
PARKER & PARSLEY PETROLEUM COMPANY
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
Year ended December 31, 1996
(in thousands, except per share data)
<CAPTION>
Australasian 1996 Pro Forma
Parker & Assets Assets Pro Forma Parker &
Parsley Sold Sold Adjustments Parsley
--------- ----------- --------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Revenues:
Oil and gas $ 396,931 $ (10,591) $ (11,780) $ 374,560
Natural gas processing 23,814 - (630) 23,184
Interest and other 17,458 (130) - 17,328
Gain on disposition of assets,
net 97,140 (83,260) (13,880) -
-------- ----------- -------- --------
535,343 (93,981) (26,290) 415,072
-------- ----------- -------- --------
Cost and expenses:
Oil and gas production 110,334 (3,300) (5,489) 101,545
Natural gas processing 12,528 - (579) 11,949
Depletion, depreciation and
amortization:
Oil and gas properties 102,803 (3,917) (3,258) 95,628
Other 9,331 (300) (30) 9,001
Exploration and abandonments 23,030 (1,435) (1,408) 20,187
General and administrative 28,363 (1,732) - 26,631
Interest 46,155 (1,100) - (12,020) (b) 28,700
(4,335) (j)
Other 2,451 - - 2,451
-------- --------- -------- --------
334,995 (11,784) (10,764) 296,092
-------- ------------ -------- --------
Income (loss) from continuing
operations before
income taxes 200,348 (82,197) (15,526) 118,980
Income tax benefit (provision) (60,100) 16,000 5,400 (2,900) (g) (41,600)
-------- --------- -------- --------
Income (loss) from continuing
operations $ 140,248 $ (66,197) $ (10,126) $ 77,380
======== ========== ======== ========
Income per share $ 3.92 $ 1.82
======== ========
Weighted average shares
outstanding 35,734 6,714 (b) 42,448
========= ========
</TABLE>
See accompanying notes to unaudited pro forma combined financial statements.
10
<PAGE>
<TABLE>
MESA INC.
UNAUDITED PRO FORMA COMBINED STATEMENT OF OPERATIONS
Year ended December 31, 1996
(in thousands, except per share data)
<CAPTION>
Pro Forma Pro Forma
Mesa Recapitalization Greenhill Adjustments Mesa
--------- ---------------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Revenues:
Oil and gas $ 300,336 $ - $ 70,944 $ 371,280
Natural gas processing - - - -
Interest and other 33,824 - - 33,824
Gain on disposition of assets,
net 11,966 - - 11,966
-------- -------- -------- ---------
346,126 - 70,944 417,070
-------- -------- -------- ---------
Cost and expenses:
Oil and gas production 74,518 - 23,099 97,617
Natural gas processing - - - -
Depletion, depreciation and
amortization:
Oil and gas properties 98,382 - 29,355 2,633 (c) 130,370
Other 4,919 - - 4,919
Exploration and abandonments 5,431 - 7,341 12,772
General and administrative 31,473 - 9,543 41,016
Interest 121,135 (34,530)(k) (729) 19,390 (f) 105,266
Other 1,929 - 411 2,340
-------- -------- -------- ---------
337,787 (34,530) 69,020 394,300
-------- -------- -------- ---------
Income from continuing operations
before income taxes 8,339 34,530 1,924 22,770
Income tax provision - - - -
-------- -------- -------- ---------
Income from continuing operations 8,339 34,530 1,924 22,770
Dividends on preferred stock (9,522) (12,358)(l) - (21,880)
-------- -------- -------- ---------
Income (loss) from continuing
operations attributable to
common stock $ (1,183) $ 22,172 $ 1,924 $ 890
======== ======== ======== =========
Income (loss) per common share $ (.02) $ .01
======== =========
Weighted average shares
outstanding 64,164 64,164
========= ==========
</TABLE>
The accompanying notes to unaudited pro forma combined financial statements.
11
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
Note 1. Basis of Presentation
In accordance with the Merger Agreement, (i) holders of Parker & Parsley
common stock received one share of Pioneer common stock for each share held;
(ii) holders of Mesa common stock received one share of Pioneer common stock
for every seven shares held; and (iii) holders of Mesa Series A Preferred
Stock and Mesa Series B Preferred Stock received 1.25 shares of Pioneer common
stock for every seven shares held. No fractional shares were issued and all
treasury shares were canceled.
The unaudited pro forma combined balance sheet of Pioneer as of June 30,
1997 has been prepared to give effect to the Mergers and the exchange of
Parker & Parsley's Preferred Shares to Pioneer common stock as if such
transactions had occurred on June 30, 1997. In accordance with the provisions
of APB No. 16, "Business Combinations", the Mergers have been accounted for as
a purchase of Mesa by Parker & Parsley.
The unaudited pro forma combined statements of operations of Pioneer for
the six months ended June 30, 1997 and for the year ended December 31, 1996
have been prepared to give effect to the Mergers and certain events described
below for Parker & Parsley and Mesa as if the Mergers and such events had
occurred on January 1, 1996.
Pro Forma Parker & Parsley has been prepared to give effect to the sale of
the Australasian Assets Sold, the 1996 Assets Sold and the exchange of Parker
& Parsley's Preferred Shares to Pioneer common stock.
Pro Forma Mesa has been prepared to give effect to the Recapitalization
and the acquisition of Greenhill, including additional borrowings to finance
such acquisition.
The following is a description of the individual columns included in these
unaudited pro forma combined financial statements:
Parker & Parsley - Represents the consolidated balance sheet of Parker
& Parsley as of June 30, 1997 and the consolidated statements of
operations of Parker & Parsley for the six months ended June 30, 1997
and for the year ended December 31, 1996.
Australasian Assets Sold - Reflects the results of operations for the
year ended December 31, 1996 from certain wholly-owned subsidiaries
prior to their sale in 1996. On March 28, 1996, Parker & Parsley
completed the sale of certain wholly-owned subsidiaries to Santos
Ltd., and on June 20, 1996, Parker & Parsley completed the sale of
another wholly-owned subsidiary, Bridge Oil Timor Sea, Inc., to
Phillips Petroleum International Investment Company. During the year
ended December 31, 1996, Parker & Parsley received aggregate
consideration of $237.5 million for these combined sales. The assets
sold to Santos Ltd. consisted primarily of properties located in the
Cooper Basin in Central Australia, the Surat Basin in Northeast
Australia, the Carnarvon Basin on the Northwest Shelf off the coast of
Western Australia, the Otway Basin off the coast of Southeast
Australia and the Central Sumatra Basin in Indonesia. At December 31,
1995, Parker & Parsley's interests in these properties contained 32.1
million BOE of proved reserves (consisting of 12.4 million Bbls of oil
and 118.3 Bcf of gas), representing $133.8 million of SEC 10 value.
Prior to their sale in 1996, these properties produced 249,500 Bbls of
oil and 1,927,000 Mcf of gas. Parker & Parsley received an average
price of $19.55 per Bbl of oil and $1.95 per Mcf of gas from such
production and incurred production costs per BOE of $4.92 and
depletion expense per BOE of $5.84 related to these properties. The
wholly-owned subsidiary sold to Phillips Petroleum International
Investment Company, Bridge Oil Timor Sea, Inc., has a wholly owned
subsidiary, Bridge Oil Timor Sea Pty Ltd., which owns a 22.5% interest
in the ZOCA 91-13 permit in the offshore Bonapart Basin in the Zone of
Cooperation between Australia and Indonesia.
12
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
1996 Assets Sold - Reflects the results of operations for the year
ended December 31, 1996 from certain oil and gas properties, gas
plants, contract rights and related assets prior to their sale in
1996. During the year ended December 31, 1996, Parker & Parsley sold
certain domestic nonstrategic oil and gas properties, gas plants and
other related assets for aggregate proceeds of approximately $58.4
million. Prior to their sale in 1996, these oil and gas properties
produced 274,314 Bbls of oil and 3,196,093 Mcf of gas. Parker &
Parsley received an average price of $19.30 per Bbl of oil and $2.03
per Mcf of gas from such production and incurred production costs per
BOE of $6.80 and depletion expense per BOE of $4.04 related to these
properties.
Mesa - Represents the consolidated balance sheet of Mesa as of June
30, 1997 and the consolidated statements of operations of Mesa for the
six months ended June 30, 1997 and for the year ended December 31,
1996.
Recapitalization - Represents the effects on Mesa's unaudited pro
forma combined statement of operations from the Recapitalization as if
it had occurred on January 1, 1996. In August 1996, Mesa completed a
recapitalization of its balance sheet by issuing new equity and
repaying and refinancing substantially all of its then existing
long-term debt. The Recapitalization was undertaken by Mesa in an
effort to deleverage and recapitalize Mesa through the issuance of
additional equity and through the refinancing of substantially all of
Mesa's $1.2 billion debt existing prior to the Recapitalization. The
Recapitalization provided Mesa with an improved financial condition
due to (i) a significant reduction in total debt outstanding, (ii) a
reduction in annual cash interest expense of approximately $75
million, (iii) cost savings programs which reduced general and
administrative and other overhead expenses by approximately $10
million annually, and (iv) the extension of maturities on Mesa's
long-term debt, which eliminated Mesa's then existing liquidity
concerns. The Recapitalization included (i) the private placement of
shares of a new class of Mesa Series B Preferred Stock for $133
million to DNR - Mesa Holdings, Inc. ("DNR"), whose sole general
partner is Rainwater Inc., a Texas corporation owned by Richard E.
Rainwater, (ii) the sale of $132 million of a new class of Mesa Series
A Preferred Stock to Mesa's then existing stockholders through a
rights offering, (ii) the establishment of a new bank credit facility
and (iv) the issuance of two new series of senior subordinated notes.
Greenhill - Represents the unaudited statements of operations of
Greenhill prior to its acquisition by Mesa on April 15, 1997 and for
the year ended December 31, 1996.
The unaudited pro forma combined statement of operations for the year
ended December 31, 1996 presented herein does not reflect the results of
operations from Mesa's acquisition from MAPCO Inc. of approximately 11 MMBOE
in February 1997 for approximately $66 million. The acquisition is not
presented since it is not considered significant under Rule 3-05 of Regulation
S-X. The purchase was funded by additional borrowings under Mesa's credit
facility.
13
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
Note 2. Acquisition of Mesa
The aggregate Pioneer common stock purchase consideration, including
non-recurring merger transaction costs, is computed in accordance with the
exchange ratios agreed to in the Merger Agreement as follows:
<TABLE>
<CAPTION>
Mesa Mesa Series Mesa Series
Common A Preferred B Preferred
Stock Stock Stock Total
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Shares outstanding 64,279,568 62,884,094 63,672,925
Exchange ratio for Mesa shares 1.00 1.25 1.25
----------- ----------- -----------
64,279,568 78,605,118 79,591,156 222,475,842
Exchange ratio to Pioneer common stock 7.00 7.00 7.00 7.00
----------- ----------- ----------- -----------
Pioneer Shares 9,182,795 11,229,303 11,370,165 31,782,263
Value of Pioneer common stock (a) $ 30.82 $ 30.82 $ 30.82 $ 30.82
----------- ----------- ----------- -----------
Pioneer common stock consideration $283,013,742 $346,087,118 $350,428,485 979,529,345
=========== =========== ===========
Cash consideration for nonrecurring
merger transaction costs 20,000,000
-----------
Aggregate purchase consideration $999,529,345
===========
------------------
</TABLE>
(a) Pioneer Common Stock is valued at $30.82 per share which represents
Parker & Parsley's seven-day average trading price surrounding the
announcement of the Mergers on April 7, 1997.
The following table represents the preliminary allocation of the total
purchase price of Mesa to the acquired assets and liabilities of Mesa. The
allocation represents the fair values assigned to each of the significant
assets acquired and liabilities assumed. Any future adjustments to the
allocation of the purchase price are not anticipated to be material to the
unaudited pro forma combined financial statements.
Allocation of
Aggregate
Purchase
Consideration
-------------
(in thousands)
Net working capital $ 11,882
Property, plant and equipment 2,334,573
Other assets 58,664
Long-term debt (1,186,538)
Other noncurrent liabilities, including deferred taxes (219,052)
------------
$ 999,529
============
Pioneer Common Stock consideration $ 979,529
Cash paid for nonrecurring merger transaction costs 20,000
------------
Aggregate purchase consideration $ 999,529
============
14
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
The following table illustrates the number of Pioneer shares that were
issued in accordance with the exchange ratios agreed to in the Merger
Agreement.
Shares New
Outstanding at Pioneer
Existing Security Type August 7, 1997 Security Pioneer Shares
- ----------------------------- -------------- ------------ --------------
Parker & Parsley Common Stock 41,773,238 Common Stock 41,773,238
Mesa Common Stock 64,279,568 Common Stock 9,182,795
Mesa Series A Preferred Stock 62,884,094 Common Stock 11,229,303
Mesa Series B Preferred Stock 63,672,925 Common Stock 11,370,165
-----------
73,555,501
===========
Note 3. Pro Forma Entries
(a) To record the acquisition of Mesa using the purchase method of accounting.
The allocation of the purchase price to the acquired assets and
liabilities is preliminary and, therefore, subject to change. Any future
adjustments to the allocation of the purchase price are not anticipated to
be material to Pioneer's financial statements. (See Note 2 above).
(b) To (i) reclassify the Preferred Shares and related capitalized issuance
fees to common stock and additional paid-in capital as a result of Parker
& Parsley's mandatory exchange of such Preferred Shares for shares of
Parker & Parsley common stock on July 28, 1997 and (ii) eliminate the
interest expense associated with such Preferred Shares and amortization of
capitalized issuance fees. On July 28, 1997, Parker & Parsley exercised
its right to require each holder of the 3,776,400 Preferred Shares to
mandatorily exchange all Preferred Shares for shares of common stock of
Parker & Parsley at a rate of 1.7778 shares of Parker & Parsley common
stock for each Preferred Share. As a result of the exchange, Pioneer will
no longer incur interest expense of approximately $12 million per year
associated with the Preferred Shares.
(c) To adjust depreciation, depletion and amortization expense for the
additional basis allocated to the oil and gas properties acquired and
accounted for using the successful efforts method of accounting.
(d) To reclassify certain amounts to conform with the financial statement
presentation of Pioneer.
(e) To reduce interest expense for (i) the amortization of the premiums
(utilizing the effective interest rate method) recorded as part of
purchase accounting for Mesa's 10-5/8% Senior Subordinated Notes and
11-5/8% Senior Subordinated Discount Notes and (ii) the application of
Parker & Parsley's excess cash in 1996 to the reduction of Mesa's
outstanding bank indebtedness at Mesa's 1996 pro forma incremental
borrowing interest rate of 7% (see pro forma entry (j) below).
(f) To adjust interest expense resulting from the borrowing of the funds
necessary for Mesa's acquisition of Greenhill. Mesa's 1997 and 1996 pro
forma incremental borrowing interest rate of 7% was utilized to determine
the additional pro forma interest expense.
(g) To adjust income tax expense for each tax jurisdiction.
(h) To eliminate the preferred stock dividends associated with Mesa's Series A
and Series B Preferred Stock.
15
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
(i) To adjust the weighted average shares outstanding for the acquisition of
Mesa. This adjustment also assumes the conversion of Mesa's outstanding
employee stock options into Pioneer employee stock options for purposes of
computing weighted average shares outstanding.
(j) To adjust interest expense resulting from the application of that portion
of the sales proceeds from the Australasian Assets Sold and the 1996
Assets Sold necessary to retire Parker & Parsley's outstanding bank
indebtedness. The proceeds applied to retire Parker & Parsley's
outstanding bank indebtedness of $225 million resulted in a reduction in
interest expense of $4.3 million. The reduction in interest expense was
calculated utilizing Parker & Parsley's weighted average rate on its bank
indebtedness of 6.22% for the period during 1996 in which Parker & Parsley
had outstanding bank indebtedness.
(k) To reduce interest expense as a result of the Recapitalization. Interest
expense adjustments include the following for the year ended December 31,
1996:
Pro Forma
Historical Pro Forma Adjustment
---------- --------- ----------
Interest expense on former debt repaid
in the Recapitalization:
Secured Notes $ 26,231 - $ (26,231)
Former Credit Agreement 2,472 - (2,472)
12-3/4% secured discount notes 43,979 - (43,979)
13-1/2% subordinated notes 654 - (654)
Interest expense on former debt repaid
prior to the Recapitalization:
12-3/4% unsecured discount notes 2,595 $ 2,595 -
Interest expense on new debt issued in
the Recapitalization:
10-5/8% Senior Subordinated Notes 17,613 35,418 17,805
11-5/8% Senior Discount Notes 8,893 18,661 9,768
New Credit Facility 15,094 26,327 11,233
Other interest expense 3,604 3,604 -
--------- -------- --------
$ 121,135 $ 86,605 $ (34,530)
========= ======== ========
Other interest expense is primarily the interest portion of the
administrative fee charged by Colorado Interstate Gas Company in
connection with Mesa's West Panhandle field operations. The interest rate
on the New Credit Facility is approximately 7.73% on the first $250
million due to an interest rate swap with the balance at a floating rate
that during the period outstanding was approximately 7%.
(l) To record the pro forma adjustment for an 8% annual dividend on the Mesa
Series A and Series B Preferred Stock payable quarterly in additional
shares of Mesa Series A and Series B Preferred Stock for at least the
first four years after issuance as if the Mesa Series A and Series B
Preferred Stock had been issued January 1, 1996.
Note 4. Income Taxes
Pioneer will account for income taxes in accordance with the provisions of
SFAS 109. In accordance with SFAS 109, Pioneer will prepare separate tax
calculations for each tax jurisdiction in which Pioneer will be subject to
income taxes.
16
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
Note 5. Income from Continuing Operations per Share
Income from continuing operations per share is computed based on the
weighted average number of shares of common stock and common stock
equivalents, if more than 3% dilutive, outstanding during the period. Fully
diluted income from continuing operations per share is not presented since
dilution is less than 3% on a pro forma combined basis. Income from continuing
operations per share reflects the exchange of Parker & Parsley's Preferred
Shares and the conversion of Mesa's Series A Preferred Stock and Mesa's Series
B Preferred Stock to Pioneer common stock which increased the weighted average
number of shares of Pioneer common stock outstanding to 73.6 million at August
7, 1997.
Note 6. Parker & Parsley Stock Options
Upon the consummation of the Mergers on August 7, 1997, which constituted
a "Change of Control" as defined in the Parker & Parsley Long-term Incentive
Plan, each holder of Parker & Parsley options was granted corresponding stock
appreciation rights unless such holder had waived such right prior to the
Mergers, and all outstanding stock appreciation rights and options immediately
became fully vested and exercisable in full. Consequently, during the third
quarter of 1997, Pioneer will record compensation expense in accordance with
APB No. 25, "Accounting for Stock Issued to Employees" equal to the value of
the stock appreciation rights granted of approximately $2.5 million dollars,
before income tax effects, based on a common stock price of $37.69. This
expense is associated with the stock appreciation rights granted to certain
individuals who are no longer with Pioneer and who elected to not waive their
right and receive stock appreciation rights. In accordance with SEC guidelines
concerning the preparation of pro forma financial statements, this adjustment
is not reflected in the accompanying Pro Forma Combined Financial Statements.
Note 7. General and Administrative Expense Reductions
Mesa's general and administrative expenses for the year ended December 31,
1996 includes $9.4 million associated with the elimination of 86 positions
from the total of 385 at December 31, 1995, and a significant downsizing of
Mesa's natural gas vehicle equipment business in conjunction with the
Recapitalization. Given the first quarter 1997 general and administrative
expenses of $3.8 million, Mesa's continuing costs are estimated at
approximately $15 million per year ($3.8 million multiplied by four quarters).
In addition, Greenhill's general and administrative expenses prior to its sale
to Mesa on April 15, 1997 of $13.3 million included severance costs paid to
Greenhill employees of approximately $11 million as few of Greenhill's
administrative personnel were retained. As a result, Mesa considers a
continuing annual expense associated with Greenhill properties of
approximately $5 million to be reasonable. Given the above, Mesa expects total
general and administrative expenses to approximate $20 million per year. The
accompanying Pro Forma Combined Statements of Operations for Pioneer do not
include any adjustments related to the expected level of ongoing general and
administrative expense.
Note 8. Parker & Parsley Third Quarter of 1997 Charges
Pioneer's Unaudited Pro Forma Combined Balance Sheet as of June 30, 1997
includes certain unamortized amounts which will be recognized as noncash
charges during the third quarter of 1997 as a result of the Mergers. These
amounts include $2.5 million (pre-tax) of capitalized issuance fees associated
with Parker & Parsley's existing bank credit facility which was replaced by a
new $1.4 billion bank credit facility for Pioneer and $544 thousand (pre-tax)
of unearned compensation resulting from certain change of control provisions
included in Parker & Parsley's existing Long-term Incentive Plan whereby the
vesting requirements of outstanding restricted stock awards were accelerated.
17
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
Note 9. Oil and Gas Reserve Data
The following unaudited pro forma supplemental information regarding the
oil and gas activities of Pioneer is presented pursuant to the disclosure
requirements promulgated by the SEC and Statement of Financial Accounting
Standards No. 69, "Disclosures About Oil and Gas Producing Activities". The
pro forma combined reserve information is presented as if the sale of the
Australasian Assets and 1996 Assets Sold and the acquisition of Mesa and
Greenhill had occurred on January 1, 1996.
Management emphasizes that reserve estimates are inherently imprecise and
subject to revision and that estimates of new discoveries are more imprecise
than those of producing oil and gas properties. Accordingly, the estimates are
expected to change as future information becomes available; such changes could
be significant.
Quantities of oil and gas reserves
Set forth below is a pro forma summary of the changes in the net
quantities of oil and natural gas reserves for the year ended December 31,
1996.
Oil, NGL's and
Condensate Gas
(Bbls) (Mcf)
-------------- ----------
(in thousands)
Balance, January 1, 1996 267,108 1,984,726
Revisions of previous estimates 31,475 42,246
Purchase of minerals-in-place 300 11,494
New discoveries and extensions 3,952 31,259
Production (20,550) (160,729)
--------- ----------
Balance, December 31, 1996 282,285 1,908,996
========= ==========
Standardized measure of discounted future net cash flows
The pro forma combined standardized measure of discounted future net cash
flow is computed by applying year-end prices of oil and gas (with
consideration of price changes only to the extent provided by contractual
arrangements) to the estimated future production of oil and gas reserves less
estimated future expenditures (based on year-end costs) to be incurred in
developing and producing the proved reserves, discounted using a rate of 10%
per year to reflect the estimated timing of the future cash flows. Future
income taxes are calculated by comparing discounted future cash flows to the
tax basis of oil and gas properties, plus available carryforwards and credits,
and applying the current tax rate to the difference.
December 31, 1996
-----------------
(in thousands)
Oil and gas producing activities:
Future cash inflows $ 14,015,758
Future production costs (3,978,622)
Future development costs (394,157)
Future income tax expense (2,679,935)
------------
6,963,044
10% annual discount factor (3,247,780)
------------
Standardized measure of discounted
future net cash flows $ 3,715,264
============
18
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
NOTES TO UNAUDITED PRO FORMA COMBINED
FINANCIAL STATEMENTS
June 30, 1997 and December 31, 1996
Changes relating to the standardized measure of discounted future net cash flows
The principal sources of the change in the pro forma combined standardized
measure of discounted future net cash flows for the year ended December 31,
1996 are as follows (in thousands):
Oil and gas sales, net of production costs $ (546,678)
Net changes in prices and production costs 1,979,347
Extensions and discoveries 94,936
Purchases of minerals-in-place 20,606
Revisions of estimated future development costs (83,116)
Revisions of previous quantity estimates 364,334
Accretion of discount 253,122
Changes in production rates, timing and other (132,538)
-----------
Change in present value of future net revenues 1,950,013
Net change in present value of future income taxes (566,915)
-----------
1,383,098
Balance, beginning of year 2,332,166
-----------
Balance, end of year $ 3,715,264
===========
19
<PAGE>
PARKER & PARSLEY PETROLEUM COMPANY
Exhibits
2.1 Amended and Restated Agreement and Plan of Merger dated as of April 6,
1997, by and between among Mesa Inc., Mesa Operating Co., MXP
Reincorporation Corp. and Parker & Parsley Petroleum Company (incorporated
by reference to Exhibit 2.1 to Pioneer's Form S-4 dated June 27, 1997,
Registration No. 333-26951).
10.1* Credit Facility Agreement (Primary Facility) dated as of August 7, 1997
between Pioneer Natural Resources USA, Inc. as Borrower and NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent and The
Chase Manhattan Bank, as Syndication Agent; Bank of America Natural Trust
and Savings Association, The Bank of New York, The Bank of Nova Scotia,
Royal Bank of Canada, Union Bank of California, N.A., The Fuji Bank,
Limited -Houston Agency and Wells Fargo Bank, N.A., as Co-Agents; and
certain other lenders.
10.2* Credit Facility Agreement (364 Day Facility) dated as of August 7, 1997
between Pioneer Natural Resources USA, Inc. as Borrower and NationsBank of
Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent and The
Chase Manhattan Bank, as Syndication Agent; Bank of America Natural Trust
and Savings Association, The Bank of New York, The Bank of Nova Scotia,
Royal Bank of Canada, Union Bank of California, N.A., The Fuji Bank,
Limited -Houston Agency and Wells Fargo Bank, N.A., as Co-Agents; and
certain other lenders.
20
* Filed herewith.
<PAGE>
PIONEER NATURAL RESOURCES COMPANY
S I G N A T U R E S
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PIONEER NATURAL RESOURCES COMPANY
Date: August 21, 1997 By: /s/ Garrett Smith
-------------------------------------
M. Garrett Smith
Senior Vice President, Finance
21
<PAGE>
Exhibit Index Page
2.1 Amended and Restated Agreement and Plan of Merger dated as
of April 6, 1997, by and between among Mesa Inc., Mesa
Operating Co., MXP Reincorporation Corp. and Parker &
Parsley Petroleum Company (incorporated by reference to
Exhibit 2.1 to Pioneer's Form S-4 dated June 27, 1997,
Registration No. 333-26951).
10.1* Credit Facility Agreement (Primary Facility) dated as of
August 7, 1997 between Pioneer Natural Resources USA,
Inc. as Borrower and NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as
Documentation Agent and The Chase Manhattan Bank, as
Syndication Agent; Bank of America Natural Trust and
Savings Association, The Bank of New York, The Bank of
Nova Scotia, Royal Bank of Canada, Union Bank of
California, N.A., The Fuji Bank, Limited - Houston Agency
and Wells Fargo Bank, N.A., as Co-Agents; and certain
other lenders.
10.2* Credit Facility Agreement (364 Day Facility) dated as of
August 7, 1997 between Pioneer Natural Resources USA,
Inc. as Borrower and NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as
Documentation Agent and The Chase Manhattan Bank, as
Syndication Agent; Bank of America Natural Trust and
Savings Association, The Bank of New York, The Bank of
Nova Scotia, Royal Bank of Canada, Union Bank of
California, N.A., The Fuji Bank, Limited - Houston Agency
and Wells Fargo Bank, N.A., as Co-Agents; and certain
other lenders.
* Filed herewith.
22
<PAGE>
EXHIBIT 10.1
[PRIMARY FACILITY]
CREDIT FACILITY AGREEMENT
PIONEER NATURAL RESOURCES USA, INC.,
as Borrower,
and
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent,
and
CIBC INC.,
as Documentation Agent,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Syndication Agent,
THE CO-AGENTS SIGNATORY HERETO,
and
THE OTHER LENDERS SIGNATORY HERETO
as of August 7, 1997 $1,100,000,000
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND REFERENCES.....................1
Section 1.1 Defined Terms..................................1
Section 1.2 Exhibits and Schedules........................18
Section 1.3 Amendment of Defined Instruments..............18
Section 1.4 References and Titles.........................18
Section 1.5 Calculations and Determinations...............18
ARTICLE 2 LOANS AND LETTERS OF CREDIT...................19
Section 2.1 Making the Loans..............................19
Section 2.2 Requests for Revolving Loan Advances..........19
Section 2.3 Rate Elections................................20
Section 2.4 Swing Line Borrowings.........................22
Section 2.5 Procedure for Swing Line Advances.............22
Section 2.6 Swing Line Advances...........................24
Section 2.7 Facility Fee..................................25
Section 2.8 Managing Agents' Fees.........................25
Section 2.9 Termination and Reduction of Commitments......25
Section 2.10 Optional Prepayments..........................26
Section 2.11 Payments to Lenders...........................26
Section 2.12 Letters of Credit.............................27
Section 2.13 Requesting Letters of Credit..................28
Section 2.14 Reimbursement of Letters of Credit............28
Section 2.15 Letter of Credit Fees.........................31
Section 2.16 Capital Reimbursement.........................31
Section 2.17 Increased Cost of Eurodollar Portions.........32
Section 2.18 Availability..................................33
Section 2.19 Funding Losses................................33
Section 2.20 Taxes.........................................35
Section 2.21 Make-Whole Qualifications.....................36
Section 2.22 Competitive Bid Advances......................38
ARTICLE 3 CONDITIONS PRECEDENT TO LENDING...............42
Section 3.1 Initial Conditions Precedent..................42
Section 3.2 Additional Conditions Precedent...............44
ARTICLE 4 REPRESENTATIONS AND WARRANTIES................45
Section 4.1 Borrower's Representations and Warranties.....45
Section 4.2 Representation by Lenders.....................49
i
<PAGE>
TABLE OF CONTENTS
(continued)
Page
ARTICLE 5 COVENANTS OF BORROWER.........................49
Section 5.1 Affirmative Covenants.........................49
Section 5.2 Negative Covenants............................54
Section 5.3 Financial Covenants...........................57
ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES................57
Section 6.1 Events of Default.............................57
Section 6.2 Remedies......................................62
Section 6.3 Annulment of Acceleration.....................62
Section 6.4 Indemnity.....................................62
ARTICLE 7 AGENTS........................................64
Section 7.1 Appointment and Authority.....................64
Section 7.2 Agent's Reliance..............................65
Section 7.3 Lenders' Credit Decisions.....................66
Section 7.4 Indemnification...............................66
Section 7.5 Rights as Lender..............................67
Section 7.6 Sharing of Set-Offs and Other Payments........67
Section 7.7 Investments...................................68
Section 7.8 Benefit of Article 7..........................68
Section 7.9 Resignation and Removal.......................68
ARTICLE 8 MISCELLANEOUS.................................69
Section 8.1 Waivers and Amendments........................69
Section 8.2 Survival of Agreements; Cumulative Nature.....70
Section 8.3 Notices.......................................71
Section 8.4 Parties in Interest...........................71
Section 8.5 Governing Law.................................71
Section 8.6 Limitation on Interest........................72
Section 8.7 Termination; Limited Survival.................73
Section 8.8 Assignments; Participations...................74
Section 8.9 Confidentiality...............................76
Section 8.10 Severability..................................76
Section 8.11 Counterparts..................................76
Section 8.12 Waiver of Jury Trial, Punitive Damages........76
Section 8.13 Several Obligations...........................77
Section 8.14 Nonliability of Lenders.......................77
Section 8.15 Setoff........................................77
Section 8.16 Release of Liens..............................77
Section 8.17 Forum Selection and Consent to Jurisdiction...77
Section 8.18 Renewal, Extension or Rearrangement...........78
Section 8.19 Entire Agreement..............................78
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EXHIBITS AND SCHEDULES
Exhibits:
Exhibit A-1 - Form of Loan Note
Exhibit A-2 - Form of Swing Line Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B-1 - Form of Guaranty
Exhibit B-2 - Form of Parent Guaranty
Exhibit C - Form of Request for Advance
Exhibit D - Form of Rate Election
Exhibit E - Form of Request for Swing Line Bid
Exhibit F - Form of Swing Line Bid
Exhibit G - Form of Acceptance Notice
Exhibit H - Form of Opinion of Parent's, Borrower's and
Restricted Subsidiaries' Counsel
Exhibit I - Organization Chart of Parent and its Subsidiaries
Exhibit J - Form of Designated Officer's Certificate
Exhibit K-1 - Form of Election to Convert
Exhibit K-2 - Form of Release
Exhibit L - Form of Agreement to be Bound
Exhibit M - Form of Pledge Agreement
Exhibit N - Form of Request for Competitive Bid Offer
Exhibit O - Form of Competitive Bid Offer
Exhibit P - Form of Bid Acceptance
Schedules:
Schedule 1 - Schedule of Lenders' Commitments and Percentage Share
Schedule 2 - Disclosure Schedule
Schedule 3 - Schedule of Restricted Subsidiaries
Schedule 4 - Schedule of Insurance
Schedule 5 - Schedule of Security Instruments
Schedule 6 - Continuing Letters of Credit
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CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT is made as of August 7, 1997 (together
with all amendments, renewals, extensions and other modifications, if any, from
time to time hereafter made hereto, the "Agreement" or "Credit Facility
Agreement"), by and among PIONEER NATURAL RESOURCES USA, INC., a Delaware
corporation and wholly-owned subsidiary of the Parent (the "Borrower"), and
NATIONSBANK OF TEXAS, N.A., CIBC INC., MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, THE CHASE MANHATTAN BANK, in the capacities herein identified, the
Co-Agents party hereto, and the other Lenders from time to time parties hereto.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND REFERENCES
Section 1.1 Defined Terms. As used in this Agreement, each of the
following terms has the meaning given it in this Section or in the sections and
subsections referred to below:
"Acceptance Notice" has the meaning given it in Section 2.5(f).
"Adjusted Eurodollar Rate" means, with respect to each particular
Eurodollar Portion and the associated Eurodollar Rate and Reserve Percentage,
the rate per annum determined hereunder by Administrative Agent on a daily basis
pursuant to the following formula:
AER = ER + EM
---------
1.00 - RP
AER = Adjusted Eurodollar Rate
ER = Eurodollar Rate
RP = Reserve Percentage
EM = Eurodollar Margin
The Adjusted Eurodollar Rate shall change as and when the associated Reserve
Percentage and Eurodollar Margin change.
"Administrative Agent" means NationsBank of Texas, N.A., as
Administrative Agent hereunder and its successors and assigns in such capacity.
"Advance" means any Revolving Loan Advance, Competitive Bid Advance or
Swing Line Advance.
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"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"Agent" means any of the Managing Agents or the Collateral Agent
hereunder, solely in such capacities and not in their respective capacities as
Lenders.
"Agreement" means this Credit Facility Agreement, as this Credit
Facility Agreement may be amended, modified or restated from time to time
hereafter.
"Applicable Rating Level" means the level set forth below that
corresponds to the highest of ratings issued from time to time by Moody's and
S&P, as applicable to Borrower's senior unsecured long-term debt:
Moody's S&P
-------------------- --------------------
Level I greater than Baa1 greater than BBB+
Level II Baa1 BBB+
Level III Baa2 BBB
Level IV Baa3 BBB-
Level V less than Baa3 less than BBB-
For example, if the Moody's rating is Baa1 and the S&P rating is BBB, Level II
shall apply.
For purposes of the foregoing, (i) "greater than" means a rating more
favorable than; "less than" means a rating less favorable than; (ii) if ratings
for the Company's senior unsecured long-term debt shall not be available from
S&P or Moody's, Level V shall be deemed applicable; (iii) if any of the Rating
Agencies shall change its ratings nomenclature prior to the date all Obligations
have been paid and the Commitments canceled, Borrower and the Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such change, and pending such amendment, if an appropriate
Applicable Rating Level is otherwise not determinable based upon the foregoing
grid, the last Applicable Rating Level in effect at the time of such change
shall continue to apply.
"Base Rate" means the fluctuating per annum rate of interest from time
to time in effect equal to the higher of (a) the rate of interest as publicly
announced by Administrative Agent as its "Prime Rate" or (b) the Federal Funds
Rate plus one-half of one percent (1/2 of 1%), whether or not Borrower has
notice thereof. Such rate is set by Administrative Agent as a general rate of
interest, taking into account such factors as Administrative Agent may deem
appropriate, it being understood that many of Administrative Agent's commercial
or other loans are priced in relation to such rate, that it is not necessarily
the lowest or best rate actually charged to any customer and that Administrative
Agent may make various commercial or other loans at rates of interest having no
relationship to such rate. If Administrative Agent's Prime Rate or the Federal
Funds Rate changes after the date hereof, the Base Rate shall be automatically
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increased or decreased, as the case may be, without prior notice to Borrower
from time to time as of the effective time of each change in Administrative
Agent's Prime Rate or the Federal Funds Rate. The Administrative Agent shall
promptly thereafter notify Borrower of such change in the Base Rate.
"Base Rate Portion" means that portion of the unpaid principal balance
of a Loan which is not made up of Eurodollar Portions, Swing Line Advances or
Competitive Bid Advances.
"Bid Acceptance" means a Bid Acceptance substantially in the form of
Exhibit P hereto with appropriate insertions.
"Borrower" is defined in the Preamble hereto.
"Business Day" means a day on which commercial banks are open for
business with the public in the State of Texas. Any Business Day in any way
relating to Eurodollar Portions (such as the day on which a Eurodollar Interest
Period begins or ends) must also be a day on which, in the reasonable, good
faith judgment of Administrative Agent, significant transactions in dollars are
carried out in the interbank eurocurrency market.
"Cash Collateral" has the meaning given it in Section 2.14(d).
"Co-Agent" means each of Bank of America National Trust and Savings
Association, The Bank of New York, The Bank of Nova Scotia, Royal Bank of
Canada, Union Bank of California, N.A., the Fuji Bank, Limited - Houston Agency
and Wells Fargo Bank, N.A., as Co-Agents, and their respective successors and
assigns in such capacity.
"Collateral Agent" means NationsBank of Texas, N.A., as collateral
agent under the Security Instruments and its successors and assigns in such
capacity.
"Commitment" means, with respect to each Lender, such Lender's Loan
Commitment.
"Competitive Bid Advances" has the meaning given it in Section 2.22.
"Competitive Bid Note" has the meaning given it in Section 2.22.
"Competitive Bid Obligations" means, at the particular time in
question, the sum of all outstanding Competitive Bid Advances.
"Competitive Bid Offer" has the meaning given it in Section 2.22.
"Competitive Bid Rate" has the meaning given it in Section 2.22.
"Consolidated" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated Subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
3
<PAGE>
condition or liabilities refer to the consolidated financial statements,
financial position, financial condition or liabilities, as the case may be, of
such Person and its properly consolidated Subsidiaries.
"Consolidated Interest Expense" is defined in Section 5.3(a).
"Credit Facility Agreement" means this Credit Facility Agreement, as
this Credit Facility Agreement may be amended, modified or restated from time to
time hereafter.
"Debt" of any Person means, without duplication:
(a) indebtedness of such Person for borrowed money;
(b) indebtedness of such Person constituting an obligation to pay the deferred
purchase price of property or services (other than customary payment terms
taken in the ordinary course of such Person's business);
(c) indebtedness of such Person evidenced by a bond, debenture, note or similar
instrument;
(d) principal obligations under leases capitalized in accordance with GAAP
under which such Person is the lessee;
(e) indebtedness, contingent or otherwise, of such Person with respect to
bankers' acceptances or the face amount of letters of credit or
applications or reimbursement agreements therefor;
(f) guaranties of such Person of indebtedness or obligations of the type
described in clauses (a), (b), (c), (d) or (e) above of any other Person or
obligations to purchase or acquire or to otherwise protect or insure a
creditor against loss in respect of indebtedness or obligations of the type
described in clauses (a), (b), (c), (d) or (e) above of any other Person,
but excluding endorsements in the ordinary course of business of negotiable
instruments in the course of collection;
(g) indebtedness or obligations of the type described in clauses (a), (b), (c),
(d) or (e) above, which are secured by a Lien on any property owned by such
Person, whether or not such indebtedness or obligations have been assumed
by such Person (limited however to the lesser of (1) the amount of its
liability or (2) the value of such property); and
(h) the undischarged balance of any production payment created by such Person
or for the creation of which such Person directly or indirectly received
payment;
provided, however, Debt shall not include (1) accounts payable incurred in the
ordinary course of such Person's business, or (2) any obligations in respect of
4
<PAGE>
(i) exchange, forward, future, swap, hedging or similar agreements and (ii)
prepayments for gas or oil production or gas or oil imbalances.
"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the passage
of any requisite periods of time, constitute an Event of Default.
"Default Rate" means, at the particular time in question, two percent
(2%) per annum plus the Base Rate then in effect; provided, that, with respect
to any Eurodollar Portion with an Eurodollar Interest Period extending beyond
the date such Eurodollar Portion becomes due and payable, "Default Rate" shall
mean, during such Eurodollar Interest Period, two percent (2%) per annum plus
the related Eurodollar Rate and plus the applicable Eurodollar Margin.
"Designated Officer" means any Executive Officer or any other
individual duly elected to and holding one or more of the offices of vice
president, managing director, executive director, secretary or assistant
secretary of an Obligor, or any other Person authorized in writing by any
Obligor to execute any Loan Document, in each case designated by an Obligor and
acceptable to Required Lenders.
"Disclosure Schedule" means (a) Schedule 2 hereto and (b) any documents
listed on such schedule and expressly incorporated therein by reference, true
and correct copies of which shall have been delivered to Managing Agents and
each other Lender prior to the date hereof. Insofar as any representations and
warranties made herein are incorporated by reference or otherwise remade in Loan
Documents delivered as of a date after the date hereof, the term "Disclosure
Schedule" shall in such representations and warranties be deemed to refer as
well to all other documents indicated by Borrower to be part of the Disclosure
Schedule and which Borrower has at the particular time in question delivered to
the Managing Agents, the Co-Agents and each other Lender and which have not been
promptly objected to in writing by or on behalf of the Required Lenders.
"Documentation Agent" means each of CIBC Inc. and Morgan Guaranty Trust
Company of New York, as Documentation Agents, and their respective successors
and assigns in such capacity.
"EBITDAX" is defined in Section 5.3(a).
"Effective Date" means the date the parties hereto shall have executed
and delivered counterparts hereof to Administrative Agent and Administrative
Agent shall have notified the parties hereto that the Effective Date shall have
occurred.
"Environmental Law" means any federal, state, or local statute, or rule
or regulation promulgated thereunder, any judicial or administrative order or
judgment to which Borrower, or any of its Subsidiaries is a party or which are
applicable to Borrower or any of its Subsidiaries or its or their respective
properties (whether or not by consent), and any provision or condition of any
5
<PAGE>
permit, license or other governmental operating authorization, relating to
protection of the environment, persons or the public welfare from actual or
potential exposure or the effects of exposure to any actual or potential
release, discharge, spill or emission (whether past or present) of, or regarding
the manufacture, processing, production, gathering, transportation, importation,
use, treatment, storage or disposal of, any chemical, raw material, pollutant,
contaminant or toxic or hazardous substance or waste.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Plan" means any pension benefit plan subject to Title IV of
ERISA maintained by any Obligor or any Affiliate thereof with respect to which
any Obligor has a fixed or contingent liability.
"Eurodollar Interest Period" means, with respect to each particular
Eurodollar Portion, a period of one (1), two (2), three (3) or six (6) months,
or, subject to Section 2.3, a period of nine (9) or twelve (12) months, as
specified in the Rate Election applicable thereto, beginning on and including
the date specified in such Rate Election (which must be a Business Day), and
ending on but not including the same day of the relevant month as the day on
which it began (e.g., a period beginning on the third day of one month shall end
on but not include the third day of another month), or if such month has no
numerically corresponding day, on the last Business Day of such month, and
provided that each Eurodollar Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day
(unless such next succeeding Business Day is the first Business Day of a
calendar month, in which case such Eurodollar Interest Period shall end on the
immediately preceding Business Day). No Eurodollar Interest Period may be
elected for any Eurodollar Portion which would extend past the Maturity Date of
the Loan of which the Eurodollar Portion is a part.
"Eurodollar Margin" means, on any date, with respect to each Eurodollar
Portion of a Revolving Loan, the number of basis points per annum set forth
below based on the Applicable Rating Level on such date:
Applicable Eurodollar
Rating Level Margin
------------ ----------
Level I 18.0 b.p.
Level II 20.0 b.p.
Level III 23.0 b.p.
Level IV 28.0 b.p.
Level V 45.0 b.p.
6
<PAGE>
Changes in the Eurodollar Margin will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Eurodollar Margin.
"Eurodollar Portion" means the unpaid principal balance of a Loan which
Borrower designates as such in a Rate Election.
"Eurodollar Rate" means, with respect to each particular Eurodollar
Portion within a Tranche and with respect to the related Eurodollar Interest
Period, the rate of interest per annum (stated to the nearest 10,000ths of 1%)
determined by Administrative Agent in accordance with its customary general
practices to be representative of the rates (stated to the nearest 10,000ths of
1%) at which deposits of dollars are offered to Administrative Agent at
approximately 10:00 a.m., Dallas, Texas time, two Business Days prior to the
first day of such Eurodollar Interest Period by prime banks in the interbank
eurocurrency market which have been selected by Administrative Agent in
accordance with its customary general practices for delivery on the first day of
such Eurodollar Interest Period in an amount equal or comparable to the amount
of Administrative Agent's Eurodollar Portion within such Tranche and for a
period of time equal or comparable to the length of such Eurodollar Interest
Period. The Eurodollar Rate determined by Administrative Agent with respect to a
particular Eurodollar Portion shall be fixed at such rate for the duration of
the associated Eurodollar Interest Period. If Administrative Agent is unable so
to determine the Eurodollar Rate for any Eurodollar Portion, Borrower shall be
deemed not to have elected such Eurodollar Portion.
"Eurodollars" is defined in Section 2.18.
"Event of Default" has the meaning given it in Section 6.1.
"Executive Officer" means any individual duly elected to and holding
one or more of the following offices of Borrower: President, Chief Executive
Officer, Chief Financial Officer, Executive Vice President or Senior Vice
President.
"Existing Mesa Credit Facility" means that certain Credit Agreement
dated July 2, 1996, as amended and restated through April 15, 1997, among Mesa
Operating, the Lenders therein named, Bankers Trust Company, as Syndication
Agent, Societe Generale, Southwest Agency, as Documentation Agent, and The Chase
Manhattan Bank, as Administrative Agent for the Lenders, as may be amended,
restated or modified from time to time.
7
<PAGE>
"Existing Petroleum Credit Facility" means that certain Amended and
Restated Credit Facility Agreement, dated as of July 31, 1996, among Petroleum,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Bank of America National Trust and Savings Association, The Chase
Manhattan Bank, First Union National Bank of North Carolina, Morgan Guaranty
Trust Company of New York and Wells Fargo Bank, N.A., each as Co-Agent, and the
Lenders signatory thereto, as amended by that certain First Amendment to Amended
and Restated Credit Facility Agreement, dated as of May 15, 1997.
"Facility Amount" means the aggregate amount of the Commitments (which
amount shall initially be $1,100,000,000), as such amount may be reduced from
time to time pursuant to the terms of this Agreement.
"Facility Fee Rate" means, on any date that a facility fee is due
pursuant to Section 2.7, the number of basis points per annum set forth below
based on the Applicable Rating Level on such date:
Applicable Facility Fee Rate
Rating Level Margin
------------ -----------------
Level I 9.0 b.p.
Level II 10.0 b.p.
Level III 12.0 b.p.
Level IV 14.0 b.p.
Level V 20.0 b.p.
Changes in the Facility Fee Rate will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Facility Fee Rate.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to Administrative Agent
on such day on such transactions as determined by Administrative Agent.
"Fiscal Quarter" means a three-month period ending on March 31, June
30, September 30 or December 31 of each year.
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<PAGE>
"Fiscal Year" means a twelve-month period ending on December 31 of each
year.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of the
Borrower organized under the laws of any jurisdiction other than the United
States or any state thereof.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting Standards
Board (or any generally recognized successor) and which, in the case of Parent,
Borrower and their Consolidated Subsidiaries, are applied for all periods after
the date hereof in a manner consistent with the manner in which such principles
and practices were applied to the Updated Financial Statements (except for
changes concurred with by Parent's or Borrower's independent public
accountants). If any change in any accounting principle or practice is required
by the Financial Accounting Standards Board (or any such successor) in order for
such principle or practice to continue as a generally accepted accounting
principle or practice, all reports and financial statements required hereunder
with respect to Parent or Borrower or with respect to Parent, Borrower and their
Consolidated Subsidiaries must be prepared in accordance with such change. In
the event any changes in GAAP materially affect the calculation of Parent's
EBITDAX to Consolidated Interest Expense Ratio or Consolidated Total Funded Debt
to Total Capitalization as defined and described in Sections 5.3 (a) and (b),
respectively, Parent, Borrower and Lenders agree to enter into good faith
negotiations for an agreement to revise such tests to take into account such
changes in GAAP; until Parent, Borrower and Majority Lenders have entered into
such an agreement, such financial calculation shall continue to be made in
accordance with GAAP as in effect immediately preceding the date of such change.
"Governmental Authority" means any national, state, county or municipal
government, domestic or foreign, any agency, board, bureau, commission, court,
department or other instrumentality of any such government, or any arbitrator in
any case which has jurisdiction over any of the Lenders, Borrower, its
Subsidiaries or any properties of Borrower or its Subsidiaries.
"Guaranty" means (i) any guaranty substantially in the form of Exhibit
B-1, with appropriate insertions and deletions, executed or to be executed by
any Restricted Subsidiary, as from time to time amended, modified, or
supplemented, (ii) the Parent Guaranty, or (iii) any Guaranty delivered pursuant
to Section 3.1(a)(1) of the Agreement as from time to time amended, modified, or
supplemented, as the case may be.
"Incumbent Directors" has the meaning given in Section 6.1(i).
"Issuing Bank" means any Lender which in its sole discretion agrees to
be and is designated by Borrower and accepted by the Administrative Agent to
issue one or more Letters of Credit in its capacity as an issuer of Letters of
Credit hereunder, and its successors and assigns in such capacity.
"LC Application" means any application for a Letter of Credit hereafter
made by Borrower to an Issuing Bank.
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<PAGE>
"LC Conditions" has the meaning given it in Section 2.12.
"LC Obligations" means, at the particular time in question, the sum of
the Matured LC Obligations plus the aggregate amounts which any Issuing Bank or
Lender might be called upon to advance under all then outstanding Letters of
Credit.
"Letter of Credit" means (i) any letter of credit issued by an Issuing
Bank upon the application of Borrower and (ii) each letter of credit outstanding
on the Effective Date listed on Schedule 6 hereto which letters of credit will
be deemed to be issued and outstanding under this Agreement as of the Effective
Date. Each Letter of Credit shall be classified by Issuing Bank as a
"Commercial" Letter of Credit or a "Standby" Letter of Credit, in accordance
with the laws and regulations applicable to Issuing Bank from time to time and
in accordance with Issuing Bank's customary practices at such times for
reporting to regulatory authorities.
"Lenders" means each party hereto (other than Borrower), including,
without limitation, NationsBank of Texas, N.A. in its capacity as a Lender
hereunder rather than as Administrative Agent or Collateral Agent, CIBC Inc. in
its capacity as a Lender hereunder rather than as Documentation Agent, Morgan
Guaranty Trust Company of New York in its capacity as a Lender hereunder rather
than as Documentation Agent, The Chase Manhattan Bank in its capacity as a
Lender hereunder rather than as Syndication Agent, the Co-Agents in their
capacity as Lenders hereunder rather than as Co-Agents, and the successors and
assigns of each as holder of a Note.
"Lien" means, any lien, mortgage, security interest, pledge, deposit,
production payment, encumbrance, rights of a vendor under any title retention or
conditional sale agreement or lease or other arrangement substantially
equivalent thereto.
"Loan" means any of a Revolving Loan, Competitive Bid Advance or Swing
Line Advance, as the context requires.
"Loan Commitment" means, with respect to each Lender, the amount set
forth as such Lender's Loan Commitment opposite the name of such Lender in the
column headed "New Commitment" or otherwise indicated on Schedule 1 attached
hereto (or, if such Lender is an assignee, the amount of its Loan Commitment set
forth in the assignment pursuant to which it became a Lender) as such amount may
be reduced or increased from time to time pursuant to any assignment to which it
is a party or otherwise pursuant to the terms of this Agreement.
"Loan Commitment Period" means the period from and including the date
hereof until and including the Maturity Date (or, if earlier, the day on which
the Loan Notes first become due and payable in full or the Loan Commitments are
terminated upon notice by Administrative Agent to Borrower pursuant to Section
6.1).
"Loan Documents" means this Credit Facility Agreement, as the same may
have been or may be amended from time to time hereafter, the Notes, the LC
Applications, the Letters of Credit, the Swing Line Bids accepted by Borrower,
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<PAGE>
the Bid Acceptances, the Acceptance Notices, the Guaranties, the Disclosure
Schedule, the Security Instruments, the agreements with the Managing Agents
referred to in Section 2.8, any amendments to any of the foregoing, and all
other agreements, certificates, notices and disclosures at any time executed or
certified by a Designated Officer of and on behalf of an Obligor and delivered
by such Obligor or such Designated Officer in connection herewith or therewith
(exclusive of term sheets, commitment letters, correspondence and similar
documents used in the negotiation hereof or thereof).
"Loan Note" has the meaning given it in Section 2.1(c).
"Majority Lenders" means Lenders whose aggregate Percentage Shares
exceed 50%.
"Managing Agents" means Administrative Agent, each Documentation Agent
and the Syndication Agent hereunder and their successors and assigns in such
capacities.
"Margin Regulations" means, as applicable, Regulations G, U and X of
the Board of Governors of the Federal Reserve System, as from time to time in
effect.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the financial condition of Parent, Borrower and its Subsidiaries taken as a
whole, or, prior to the Effective Date of this Agreement, Mesa or Petroleum, (b)
the ability of Parent, Borrower and its Subsidiaries taken as a whole to operate
their respective businesses, (c) the ability of Borrower to meet its obligations
under the Loan Documents on a timely basis or (d) the ability of Obligors taken
as a whole to meet their obligations under the Loan Documents on a timely basis;
provided, however, that a material adverse effect that is limited to an
Unrestricted Subsidiary shall not (i) be a Material Adverse Effect or (ii) be
included in the determination of whether a Material Adverse Effect shall have
occurred or shall be expected to occur.
"Matured LC Obligations" means all amounts paid by Issuing Bank or any
Lender on drafts or demands for payment drawn or made under any Letter of Credit
(or under or in connection with any LC Application) which have not been repaid
to the Issuing Bank or Lender (with the proceeds of a Revolving Loan Advance or
otherwise).
"Maturity Date" means the earlier of (a) August 7, 2002 and (b) the
date on which the Loan Commitment of each Lender is reduced to zero or
terminated.
"Maximum Lawful Rate" has the meaning given it in Section 8.6.
"Merger Agreement" has the meaning given it in Section 3.1(e).
"Mergers" has the meaning given it in Section 3.1(e).
"Mesa" means Mesa, Inc., a Delaware corporation.
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"Mesa Operating" means Mesa Operating Co., a Delaware corporation.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto that is a nationally-recognized rating agency.
"Note" means any Loan Note, Swing Line Note or Competitive Bid Note.
"Notice Period" has the meaning given it in Section 6.4.
"Obligations" means all Debt from time to time owing by any of Obligors
to any Agent or any Lender under or pursuant to any of the Loan Documents,
including, without limitation, all LC Obligations, Swing Line Obligations and
Competitive Bid Obligations. "Obligation" means any part of the Obligations.
"Obligor" means Parent, Borrower and each of the Restricted
Subsidiaries.
"Parent" means Pioneer Natural Resources Company, a Delaware
corporation.
"Parent Guaranty" means a guaranty substantially in the form of Exhibit
B-2, with appropriate insertions and deletions, executed or to be executed by
the Parent, as from time to time amended, modified, or supplemented, as the case
may be.
"Percentage Share" means, with respect to any Lender (a) when used in
Section 2.1 or 2.3, in any Request for Advance or when no Loans (other than
Swing Line Advances or Competitive Bid Advances, if applicable) are outstanding
hereunder, the percentage set forth opposite such Lender's name on Schedule 1 to
this Agreement, or in documents of assignment delivered pursuant to Section
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8.8, as such percentage may be adjusted from time to time by such assignment
documents and (b) when used otherwise, the percentage equal to the unpaid
principal balance of such Lender's Loans, other than Swing Line Advances and
Competitive Bid Advances, at the particular time in question divided by the
aggregate unpaid principal balance of all Loans of all Lenders, other than Swing
Line Advances and Competitive Bid Advances, at such time.
"Permitted Liens" means (a) Liens for taxes, assessments or other
governmental charges or levies if the same shall not at the particular time in
question be due and delinquent or (if foreclosure, distraint, sale or other
similar proceedings shall not have been commenced or, if commenced, shall have
been stayed) are being contested in good faith and by appropriate proceedings,
and if the subject Borrower or Parent shall have set aside on its books such
reserves (segregated to the extent required by sound accounting practices) as
may be required by GAAP or otherwise determined by the Board of Directors of
Borrower or Parent to be adequate with respect thereto; (b) Liens of carriers,
warehousemen, mechanics, laborers, materialmen, landlords, vendors, workmen, and
operators arising by operation of law in the ordinary course of business or
incident to the exploration, development, operations and maintenance of oil, gas
and other hydrocarbon properties and related facilities and assets, for sums not
yet due or being contested in good faith and by appropriate proceedings, if
Borrower or Parent shall have set aside on its books such reserves (segregated
to the extent required by sound accounting practices) as may be required by GAAP
or otherwise determined by the Board of Directors of Borrower or Parent to be
adequate with respect thereto; (c) Liens incurred in the ordinary course of
Obligors' respective businesses in connection with worker's compensation,
unemployment insurance and other social security legislation (other than ERISA);
(d) Liens incurred in the ordinary course of Obligors' businesses to secure the
performance of bids, tenders, trade contracts, leases (statutory only),
statutory obligations, surety and appeal bonds, performance and return-of-money
bonds and other obligations of a like nature; (e) Liens, easements,
rights-of-way restrictions, servitudes, permits, conditions, covenants,
exceptions, reservations and other similar encumbrances incurred in the ordinary
course of Obligors' businesses or existing on property and not in the aggregate
materially interfering with the ordinary conduct of Obligors' businesses; (f)
legal or equitable encumbrances deemed to exist by reason of negative pledges
such as in Section 5.2 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); (g) rights of a common owner of any interest in
property held by any Obligor as such common owner; (h) farmout, carried working
interest, joint operating, unitization, royalty, overriding royalty, sales and
similar agreements relating to the exploration or development of, or production
from, oil and gas properties incurred in the ordinary course of business, (i)
Liens arising pursuant to Section 9.319 of the Texas Uniform Commercial Code or
other similar statutory provisions of other states with respect to production
purchased from others; (j) Liens represented by capital leases permitted under
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this Agreement; (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 existing pursuant to the Security
Instruments; (m) Liens existing in favor of Agents and Lenders under the Loan
Documents; (n) Liens on assets of a Subsidiary of Parent or Borrower in favor of
Parent, Borrower or another Restricted Subsidiary; (o) Liens on any property or
assets owned or leased by Parent, Borrower or any Subsidiary existing at the
time such property or asset was acquired (or at the time such Person became a
Subsidiary); provided that (1) in the case of the acquisition of a Subsidiary,
such lien only encumbers property or assets of such Subsidiary immediately prior
to or at the time of acquisition by Borrower of such Subsidiary and (2) Borrower
and Parent will use their best efforts to eliminate such Liens in a timely
manner; (p) purchase money Liens, so long as such Liens only encumber property
or assets (including any improvements thereon, accessions thereto or proceeds
thereof) acquired with the proceeds of purchase money indebtedness incurred in
connection with such Lien; (q) Liens on the stock or other ownership interest of
or in any Unrestricted Subsidiary; (r) Liens in renewal or extension of any of
the foregoing permitted Liens, so long as limited to the property or assets
encumbered and the amount of indebtedness secured immediately prior to such
renewal or extension; and (s) Liens approved in writing by or on behalf of the
Required Lenders.
"Petroleum" means Parker & Parsley Petroleum Company, a Delaware
corporation.
"Pledge Agreement" means a Pledge Agreement substantially in the form
of Exhibit M hereto, or other form of pledge agreement or deed of mortgage, in
form and substance satisfactory to the Managing Agents and the subject Obligor,
pledging an interest in the capital shares or stock of, partnership interests
in, or other ownership interest in, a Restricted Subsidiary as from time to time
amended, modified and supplemented.
"Primary Facility" means the facility for loans and the issuance of
Letters of Credit established pursuant to this Agreement.
"Rate Election" has the meaning given it in Section 2.3.
"Rating Agencies" means any or all of S&P or Moody's.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Request for Advance" means a written or telephonic request, or a
written confirmation, made by a Borrower which meets the requirements of Section
2.2.
"Request for Competitive Bid Offer" has the meaning given it in Section
2.22.
"Request for Swing Line Bid" has the meaning given it in Section
2.5(a).
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"Required Lenders" means Lenders whose aggregate Percentage Shares
exceed 66 2/3%.
"Reserve Percentage" means, on any day with respect to each particular
Eurodollar Portion in a Tranche, the maximum reserve requirement, as determined
by Administrative Agent (including without limitation any basic, supplemental,
marginal, emergency or similar reserves), expressed as a percentage and rounded
to the nearest 1/100th of 1%, which would then apply to Administrative Agent
under Regulation D or successor regulations issued from time to time by the
Board of Governors of the Federal Reserve System with respect to "Eurocurrency
liabilities" (as such term is defined in Regulation D) equal in amount to
Administrative Agent's Eurodollar Portion in such Tranche, were Administrative
Agent to have any such Eurocurrency liabilities. If such reserve requirement
shall change after the date hereof, the Reserve Percentage shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each such change in such reserve requirement.
"Restricted Payment" means any investment, contribution, distribution,
loan or advance of cash to a Person other than a Restricted Subsidiary, other
than:
(a) prudent short-term investments;
(b) investments, contributions, distributions, loans or advances disclosed in
the Updated Financial Statements or in the Disclosure Schedule or in
disclosures made subsequent to the date hereof and consented to in writing
by or on behalf of the Majority Lenders or otherwise made to effect the
Mergers and the subsequent restructuring of certain of the Restricted
Subsidiaries, as described in the Merger Agreement;
(c) investments, contributions, loans or advances made by any Obligor in the
ordinary course of its business; or
(d) contributions made by Borrower to any of its Subsidiaries arising out of or
in respect of Letters of Credit issued hereunder and used for the general
corporate purposes of such Subsidiary (i) so long as no amounts have been
drawn under any such Letter of Credit or (ii) to the extent that Borrower
has been reimbursed by such Subsidiary for amounts drawn under any such
Letter of Credit;
provided, however, that any loan, advance, contribution or investment by
Borrower or any Restricted Subsidiary to any Restricted Subsidiary which is not
a guarantor of Borrower's obligations shall be a Restricted Payment.
"Restricted Subsidiary" means each Subsidiary of Borrower or Parent
that, at the particular time in question, owns directly or indirectly any
material assets or any interest in any other Restricted Subsidiary or has not
been designated as an Unrestricted Subsidiary. The Restricted Subsidiaries on
the Effective Date are listed on Schedule 3 attached hereto and each other
Subsidiary of Borrower as of the Effective Date shall be an Unrestricted
Subsidiary. A Restricted Subsidiary shall remain such (even if it no longer owns
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directly or indirectly any interest in any of the material assets) until
designated as an Unrestricted Subsidiary pursuant to Section 5.2(i).
"Revolving Loan" has the meaning given it in Section 2.1(c).
"Revolving Loan Advance" has the meaning given it in Section 2.1(a).
"ss.956" has the meaning given it in Section 6.1(k).
"S&P" means Standard & Poor's Ratings Group and any successor thereto
that is a nationally-recognized rating agency.
"Security Instruments" shall mean the agreements or instruments
described or referred to in Schedule 5, the Guaranties, the Pledge Agreement,
and any and all other agreements or instruments now or hereafter executed and
delivered by any Obligor or any other Person in connection with, or as security
for the payment or performance of, the Notes, LC Obligations, this Agreement or
the Guaranties, as any such instrument or agreement may be supplemented,
amended, renewed, extended or restated from time to time.
"Stock Pledge Release Date" has the meaning given to it in Section
8.16.
"Subsidiary" means, with respect to any Person, any corporation, which
is directly or indirectly (through one or more intermediaries) controlled by or
with respect to which fifty percent (50%) or more of the stock having ordinary
voting power to elect the board of directors is owned by such Person, or any
association, partnership, joint venture, or other non-corporate business entity,
enterprise or organization which is directly or indirectly (through one or more
intermediaries) controlled by, or owned one hundred percent (100%) by, such
Person, provided that associations, joint ventures or other relationships (a)
which are established pursuant to an operating agreement or similar agreement or
which are partnerships for purposes of federal income taxation only, (b) which
are not partnerships (or subject to the Uniform Partnership Act) under
applicable state law, and (c) whose businesses are limited to the exploration,
development and operation of oil, gas or mineral properties and interests owned
directly by the parties in such associations, joint ventures or relationships,
shall not be deemed to be "Subsidiaries" of such Person.
"Swing Line Advances" has the meaning given it in Section 2.4.
"Swing Line Bid" has the meaning given it in Section 2.5(a).
"Swing Line Note" has the meaning given it in Section 2.6(d).
"Swing Line Obligations" means, at the particular time in question, the
sum of all outstanding Swing Line Advances.
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"Swing Line Rate" has the meaning given it in Section 2.5(b).
"Syndication Agent" means The Chase Manhattan Bank, as Syndication
Agent hereunder and its successors and assigns in such capacity.
"Taxes" has the meaning given it in Section 2.20.
"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (1) a reportable event described in Sections 4043(b)(5) or (6) of ERISA
or (2) any other reportable event described in Section 4043(b) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any Obligor or of any
Affiliate of any Obligor from an ERISA Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c) the
filing of a notice of intent to terminate any ERISA Plan or the treatment of any
ERISA Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any ERISA Plan by the Pension Benefit
Guaranty Corporation under Section 4042 of ERISA, or (e) any other event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any ERISA Plan.
"364 Day Facility" means that certain Credit Facility Agreement, dated
as of August 7, 1997, among Pioneer Natural Resources USA, Inc., as Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders party thereto, as such agreement may be amended, modified or restated
from time to time.
"Total Capitalization" means the sum (without duplication) of (i)
Consolidated Total Funded Debt of the Parent and its Subsidiaries, plus (ii)
Consolidated shareholder's equity of the Parent and its Subsidiaries.
"Total Funded Debt" means all Debt of the type referred to in clauses
(a), (b), (c), (d), (g) (excluding Debt of the type referred to in clause (e) of
the definition of "Debt") and (h) of the definition of "Debt".
"Tranche" has the meaning given it in Section 2.3.
"Unrestricted Subsidiary" means each Subsidiary of Borrower which is
not designated as a Restricted Subsidiary on Schedule 3 attached hereto or is
designated by Borrower as an Unrestricted Subsidiary pursuant to Section 5.2(i).
"Updated Financial Statements" means (a) the audited annual
Consolidated financial statements of Petroleum and Mesa and their respective
Consolidated Subsidiaries dated as of December 31, 1996, and (b) the unaudited
Consolidated financial statements and unaudited consolidating balance sheets and
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statements of operations of Petroleum and Mesa and their respective Consolidated
Subsidiaries prepared in reasonable detail in accordance with GAAP and dated as
of March 31, 1997.
Section 1.2 Exhibits and Schedules. All Exhibits and Schedules
attached to this Agreement are a part hereof for all purposes.
Section 1.3 Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein, the terms defined in
this Agreement which refer to a particular agreement, instrument or document
also refer to and include all renewals, extensions, modifications, amendments
and restatements of such agreement, instrument or document, provided that
nothing contained in this Section shall be construed to authorize or require any
such renewal, extension, modification, amendment or restatement.
Section 1.4 References and Titles. All references in this Agreement
to Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this Primary Facility", "Primary Facility", "this instrument",
"herein", "hereof", "hereby", "hereunder" and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly
so limited. The phrases "this section" and "this subsection" and similar phrases
refer only to the sections or subsections hereof in which such phrases occur.
The word "or" is not exclusive, and the word "including" (in its various forms)
means "including without limitation". Pronouns in masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
Section 1.5 Calculations and Determinations. All calculations under
the Loan Documents of interest chargeable with respect to Eurodollar Portions
and Competitive Bid Advances shall be made on the basis of actual days elapsed
(including the first day but excluding the last) and a year of 360 days,
subject, however, to the limitations set forth in Section 8.6 hereof. All other
calculations of interest and fees made under the Loan Documents shall be made on
the basis of actual days elapsed (including the first day but excluding the
last) and a year of 365 or 366 days, as appropriate. Unless otherwise expressly
provided herein or unless Required Lenders otherwise consent, all financial
statements and reports furnished to Administrative Agent or any other Lender
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with GAAP.
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ARTICLE 2
LOANS AND LETTERS OF CREDIT
Section 2.1 Making the Loans.
(a) Subject to the terms and conditions hereof, each Lender agrees to make
advances on a revolving basis (herein a "Revolving Loan Advance") to
Borrower from time to time on any Business Day during the Loan Commitment
Period, equal to such Lender's Percentage Share of the aggregate amount of
Revolving Loan Advances requested by Borrower to be made on such day, so
long as the aggregate amount of (i) all Lenders' Revolving Loan Advances
(including any Revolving Loan Advances to be made but not yet made pursuant
to a Request for Advance) outstanding at any time plus (ii) the LC
Obligations of all Lenders at such time plus (iii) all Lenders' Swing Line
Advances to Borrower plus (iv) all Lenders' Competitive Bid Advances
outstanding at such time, does not exceed the Facility Amount. Subject to
the terms and conditions hereof, Borrower may borrow, repay and reborrow
Revolving Loan Advances.
(b) No Lender shall be permitted or required to make any Revolving Loan Advance
under this Agreement unless the aggregate of (1) such Lender's Revolving
Loan Advances under this Agreement (including any Revolving Loan Advances
to be made but not yet made pursuant to a Request for Advance) outstanding
at any time plus (2) such Lender's share of LC Obligations at such time is
less than or equal to the least of (i) such Lender's Loan Commitment or
(ii) such Lender's Percentage Share of the Facility Amount.
(c) The aggregate amount of all Revolving Loan Advances requested of all
Lenders in any Request for Advance must be an integral multiple of
$1,000,000 which equals or exceeds $10,000,000 or must equal the least of
the unadvanced portion of the aggregate Loan Commitments of all Lenders or
the unadvanced portion of the Facility Amount. The obligation of Borrower
to repay to each Lender the aggregate amount of all Revolving Loan Advances
made by such Lender to Borrower (herein called such Lender's "Revolving
Loan"), together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such Lender's "Loan
Note") made by Borrower payable to the order of such Lender in the form of
Exhibit A-1 with appropriate insertions. The amount of principal owing on
any Lender's Loan Note at any given time shall be the aggregate amount of
all Revolving Loan Advances theretofore made by such Lender minus all
payments of principal theretofore received by such Lender on such Loan
Note. Interest on each Loan Note shall accrue and be due and payable as
provided herein and therein.
Section 2.2 Requests for Revolving Loan Advances. Borrower must give
to Administrative Agent not later than 11:00 a.m., Dallas, Texas time, for same
day funding, and not later than 1:00 p.m., Dallas, Texas time, for next Business
Day funding, written notice, or telephonic notice promptly confirmed in writing,
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of any requested Revolving Loan Advances, after which Administrative Agent shall
give each other Lender prompt notice thereof. Each such written request or
confirmation must be made in the form and substance of Exhibit C attached
hereto, duly completed (herein called a "Request for Advance"). Each such
telephonic request shall be deemed a representation, warranty, acknowledgment
and agreement by Borrower as to the matters which are required to be set out in
such written confirmation. If all conditions precedent to a Revolving Loan
Advance have been met, each Lender will on the date requested remit, not later
than 1:00 p.m., Dallas, Texas time, for same day funding, and not later than
11:00 a.m., Dallas, Texas time, the following Business Day for next Business Day
funding, to Administrative Agent at Administrative Agent's office in Dallas,
Texas, or to such other office as Administrative Agent may specify from time to
time by notice to Lenders, the amount of such Lender's Revolving Loan Advance in
immediately available funds, and upon receipt of such funds, unless to its
actual knowledge any conditions precedent to such Revolving Loan Advances have
been neither met nor waived as provided herein, Administrative Agent shall
promptly make the Revolving Loan Advances available to Borrower. Each Request
for Advance shall be irrevocable and binding on Borrower. Unless Administrative
Agent shall have received prompt notice from a Lender that such Lender will not
make available to Administrative Agent such Lender's Revolving Loan Advance,
Administrative Agent may in its discretion assume that such Lender has made such
Revolving Loan Advance available to Administrative Agent in accordance with this
Section and Administrative Agent may if it chooses, in reliance upon such
assumption, make such Revolving Loan Advance available to Borrower. If and to
the extent such Lender shall not so make its Revolving Loan Advance available to
Administrative Agent, such Lender and Borrower severally agree to pay or repay
to Administrative Agent on demand the amount of such Revolving Loan Advance
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is paid or repaid to
Administrative Agent, (i) if paid or repaid by Borrower at the interest rate
applicable at the time to the other Revolving Loan Advances made on such date of
such Revolving Loan Advance and (ii) if paid or repaid by such Lender, at the
Federal Funds Rate. The failure of any Lender to make any Revolving Loan Advance
to be made by it hereunder shall not relieve any other Lender of its obligation
hereunder, if any, to make its Revolving Loan Advance, but no Lender shall be
responsible for the failure of any other Lender to make any Revolving Loan
Advance to be made by such other Lender.
Section 2.3 Rate Elections. Borrower may from time to time designate
all or any portions of the Loans (including any yet to be made Revolving Loan
Advances which are to be made prior to or at the beginning of the designated
Eurodollar Interest Period but excluding any portions of the Loans which are
required to be repaid prior to the end of the designated Eurodollar Interest
Period and excluding any Competitive Bid Advance and any Swing Line Advance) as
a "Tranche", which term refers to a set of Eurodollar Portions of the same type
with identical Eurodollar Interest Periods and with each Lender participating in
such Tranche in accordance with its Percentage Share. Without the consent of
Required Lenders, Borrower may not make such election, and Administrative Agent
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and Lenders shall not be required to give effect to such election, during the
continuance of a Default and Borrower may make such an election with respect to
already existing Eurodollar Portions only if such election will take effect at
or after the termination of the Eurodollar Interest Period applicable thereto.
Each election by Borrower of a Tranche shall:
(a) Be made in writing in the form and substance of Exhibit D attached hereto,
duly completed, herein called a "Rate Election";
(b) Specify the aggregate amount of the Loans which Borrower desires to
designate as such Tranche, the first day of the Eurodollar Interest Period
which is to apply thereto, and the length of such Eurodollar Interest
Period; and
(c) Be received by Administrative Agent not later than 10:00 a.m., Dallas,
Texas time, on the third Business Day preceding the first day of the
specified Eurodollar Interest Period.
Promptly after receiving any such Rate Election which meets the
requirements of this Section, Administrative Agent shall notify each Lender
thereof. Each Rate Election shall be irrevocable. Borrower may not make any Rate
Election which does not specify an Eurodollar Interest Period complying with the
definition of "Eurodollar Interest Period" in Section 1.1, and the aggregate
amount of the Tranche elected in any Rate Election must be $10,000,000 or a
higher integral multiple of $1,000,000. Upon the termination of each Eurodollar
Interest Period the portion of each Loan within the related Tranche shall,
unless the subject of a new Rate Election then taking effect, automatically
become a part of the Base Rate Portion of such Loan and become subject to all
provisions of the Loan Documents governing such Base Rate Portion. Borrower
shall have no more than fifteen (15) Tranches in effect at any time.
If requested to do so by Borrower through Administrative Agent at least
two (2) Business Days before the delivery date of any proposed Rate Election,
each Lender will advise Administrative Agent before 10:00 a.m., Dallas, Texas
time, on the Business Day following receipt of such request as to whether, if
Borrower selects a specified duration of nine (9) or twelve (12) months for the
Eurodollar Interest Period applicable to such proposed Rate Election, such
Lender expects that deposits in dollars with a corresponding term will be
available to it in the relevant market on the first day of such Eurodollar
Interest Period in the amount required to fund the Eurodollar Portion of its
Loan to which such Eurodollar Interest Period would apply. Unless a Lender
responds by such time to the effect that it expects such deposits will be
available to it, Borrower shall not be entitled to select such proposed duration
for such Eurodollar Interest Period.
Each Lender may, if it so elects, fulfill its obligation to fund any
Eurodollar Portion by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to fund or continue such
Eurodollar Portion; provided, however, that such Eurodollar Portion shall be
deemed to have been made and held by such Lender, and the obligations of the
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subject Borrower to repay such Eurodollar Portion shall nevertheless be to such
Lender for the account of such branch, or Affiliate (or international banking
facility). In addition, Borrower hereby consents and agrees that, for purposes
of any determination to be made for purposes of Sections 2.17, 2.18, 2.19 and
2.20, it shall be conclusively assumed that such Lender elected to fund all
Eurodollar Portions by purchasing Dollar deposits in the interbank eurodollar
market of its designated office.
Section 2.4 Swing Line Borrowings. In addition to borrowings pursuant
to Section 2.1(a) or Section 2.22, Borrower may request each Lender severally to
submit offers to make advances to Borrower on any Business Day (unless Borrower
and Administrative Agent agree otherwise and notify Lenders) during the Loan
Commitment Period as provided in Sections 2.5 and 2.6 (herein called "Swing Line
Advances"); provided, however, that (a) each Lender may, but shall have no
obligation to, submit such offers and Borrower may, but shall have no obligation
to, accept any such offers, (b) at no time shall the outstanding aggregate
principal amount of all Swing Line Advances made by all Lenders under this
Agreement plus all "Swing Line Advances" (as defined in the 364 Day Facility),
if any, outstanding under the 364 Day Facility exceed $50,000,000, and (c) at no
time shall the sum of (1) the outstanding aggregate principal amount of all
Swing Line Advances made by all Lenders to Borrower, (2) the outstanding
aggregate principal amount of the Revolving Loans, (3) the outstanding aggregate
principal amount of LC Obligations and (4) the outstanding aggregate principal
amount of all Competitive Bid Advances, exceed the Facility Amount.
Section 2.5 Procedure for Swing Line Advances.
(a) No later than 11:00 a.m., Dallas, Texas time, on each Business Day that
Borrower desires the submission of an offer to make a Swing Line Advance,
Borrower shall transmit to each Lender (which has indicated to Borrower its
interest in making a Swing Line Advance) and to Administrative Agent by
telecopy a notice in substantially the form of Exhibit E attached hereto
(herein called a "Request for Swing Line Bid"), requesting each Lender in
its sole discretion to submit an offer to make a Swing Line Advance by
transmitting to Borrower and Administrative Agent by telecopy a notice in
substantially the same form as Exhibit F attached hereto (herein called a
"Swing Line Bid"). Each Swing Line Bid must comply with the requirements of
this Section and must be received by Administrative Agent and Borrower by
telecopy at their respective offices by no later than 12:00 noon, Dallas,
Texas time, on the date of the Request for Swing Line Bid.
(b) Each Swing Line Bid must specify the Lender and the amount of the Swing
Line Advance that such Lender is committed, subject to acceptance of such
Swing Line Bid by Borrower pursuant to Section 2.5(f) and the provisions of
Sections 2.5(c) and (d), to lend to Borrower on such date. Each Swing Line
Bid must specify the rate of interest per annum which will be the fixed
rate of interest to be charged for such Swing Line Advance until maturity
(herein called the "Swing Line Rate").
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Unless Borrower notifies the Lenders otherwise in its Request for Swing
Line Bid and Administrative Agent does not promptly oppose such notice,
each Swing Line Advance shall mature on the next Business Day and each
Swing Line Bid shall specify such maturity date; provided that no Swing
Line Advance may have a term of more than fourteen (14) Business Days, and
no Swing Line Advance shall mature after the Maturity Date.
(c) Any Swing Line Bid shall be disregarded, and may not be accepted, by
Borrower if such Swing Line Bid:
(1) is not substantially in conformity with Exhibit F or does not specify
all of the information required by Section 2.5(b);
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set forth in
Section 2.5(b); or
(4) is received by Borrower after the time set forth in Section 2.5(a).
(d) Borrower may accept any Swing Line Bid(s) in whole or in part; provided
that:
(1) the aggregate principal amount of all Swing Line Advances to
Borrower under this Agreement plus all "Swing Line Advances" (as
defined in the 364 Day Facility), if any, outstanding under the 364
Day Facility may not exceed $50,000,000;
(2) the sum of (i) the aggregate principal amount of the Revolving Loans
outstanding at such time, (ii) the aggregate principal amount of LC
Obligations outstanding at such time, (iii) the aggregate principal
amount of Swing Line Advances outstanding at such time, and (iv) the
aggregate principal amount of Competitive Bid Advances outstanding at
such time, does not exceed the Facility Amount;
(3) the principal amount of each Swing Line Advance must be in a minimum
of $1,000,000 and multiples of $100,000 in excess thereof; and
(4) Borrower may not accept any Swing Line Bid that is described in
Section 2.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
(e) Borrower shall not be required to accept Swing Line Bids on the basis of
the lowest Swing Line Rate offered, but may in its sole discretion accept
any of the Swing Line Bids regardless of the Swing Line Rate offered.
Notwithstanding the procedure set forth in this Section, Borrower may
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request and accept Swing Line Advances from any Lender with terms greater
than one (1) Business Day, (but not greater than fourteen (14) Business
Days, and maturing on or before the Maturity Date), and Borrower is not
required to make such requests to all of the Lenders, provided that such
procedure is otherwise in compliance with Sections 2.4, 2.6 and 2.5(f); and
(f) Borrower shall confirm its acceptance or rejection of the Swing Line
Advances offered to it by telecopying to Administrative Agent a notice in
substantially the form of Exhibit G attached hereto (herein called an
"Acceptance Notice") which shall set forth the Lenders and the amount of
each Lender's Swing Line Advances accepted by Borrower and the Swing Line
Rate. Such Acceptance Notice must be received by Administrative Agent by no
later than 12:15 p.m., Dallas, Texas time, on the date of request for Swing
Line Bid. Administrative Agent shall notify the Lenders that submitted a
Swing Line Bid for such Business Day of Borrower's decision by telecopying
to each such Lender a copy of the Acceptance Notice by no later than 12:30
p.m., Dallas, Texas time, on the date of request for Swing Line Bid, unless
a later time is agreed to by a Lender in respect of the Acceptance Notice
to be received by such Lender.
Section 2.6 Swing Line Advances.
(a) Each Lender whose Swing Line Bid is accepted by Borrower on a timely basis
pursuant to the Acceptance Notice shall wire the amount of its Swing Line
Advance in immediately available funds by no later than 1:00 p.m., Dallas,
Texas time on the date of request for Swing Line Bid, on such day to
Administrative Agent, which shall deposit such funds to an account
designated by Borrower by no later than 1:15 p.m. on the same day.
(b) Borrower shall repay each such Swing Line Advance on or before 1:00 p.m.,
Dallas, Texas time, on the following Business Day or at such other maturity
(such date of maturity being no more than fourteen (14) Business Days after
the date of the Swing Line Advance and no later than the Maturity Date) as
is agreed to by Borrower, Administrative Agent and the funding Lenders. The
repayment plus accrued interest shall be paid by Borrower (which payment
may be in the form of a Swing Line Advance advanced to Borrower on that
day) to Administrative Agent in immediately available funds with
instructions by telecopy to Administrative Agent specifying the amounts and
the Lenders receiving application of such proceeds. If any Lender makes a
Swing Line Advance on a day on which Borrower is to repay all or any part
of an outstanding Swing Line Advance from such Lender, if requested by
Borrower, such Lender shall apply the proceeds of its new Swing Line
Advance to make such repayment and, in such instance, only an amount equal
to the difference (if any) between the amount being borrowed and the amount
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being repaid shall be made available by such Lender to Administrative Agent
as provided in Section 2.6(a), or remitted by Borrower to Administrative
Agent as provided in this Section, as the case may be.
(c) Interest on the Swing Line Advances shall be computed on the basis of a
year of 365 or 366 days and actual days elapsed (including the first day,
but excluding the last day) occurring in the period for which payable and
shall not exceed Maximum Lawful Rate. Past due principal and interest (to
the extent allowed by law) shall bear interest at the lesser of the Default
Rate or the Maximum Lawful Rate and shall be payable on demand.
(d) The Swing Line Advances made by each Lender shall be evidenced by a single
promissory note of Borrower payable to the order of such Lender in the
amount of $50,000,000 and in substantially the form of Exhibit A-2 attached
hereto, with appropriate insertions (herein called a "Swing Line Note").
The date, amount, Swing Line Rate and maturity of each Swing Line Advance
made by a Lender to Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books.
(e) The Swing Line Advances will be used by Borrower to provide working capital
for the operations of Borrower and its Subsidiaries and for general
business purposes. No Swing Line Advances shall be used for the purpose of
purchasing or carrying any Margin Stock in violation of the Margin
Regulations.
(f) The obligation of Lenders to make each Swing Line Advance after timely
acceptance by Borrower is further subject to the conditions contained in
Article 3.
Section 2.7 Facility Fee. In consideration of each Lender's
commitment to make Revolving Loan Advances, Swing Line Advances and Competitive
Bid Advances, Borrower will pay, or cause the payment, to Administrative Agent
for the account of each Lender an annual facility fee payable to each Lender
determined by applying the Facility Fee Rate to such Lender's Percentage Share
of the Facility Amount as of the date of such payment, payable in arrears
quarterly until the Maturity Date, with the first payment thereof to be
September 30, 1997 and subsequent payments on the last day of each successive
calendar quarter ending on each September, December, March and June, and the
final payment thereof on the Maturity Date.
Section 2.8 Managing Agents' Fees. In addition to all other amounts
due to the Managing Agents under the Loan Documents, Borrower will pay the
non-refundable annual fees set forth in those certain Fee Letters dated June 25,
1997.
Section 2.9 Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be
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in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of (i) all Lenders' Revolving Loan
Advances (including any Revolving Loan Advances to be made but not yet made
pursuant to a Request for Advance) outstanding at any time plus (ii) the LC
Obligations of all Lenders at such time plus (iii) all Lenders' Swing Line
Advances to Borrower plus (iv) all Lenders' Competitive Bid Advances
outstanding at such time, would exceed the total Commitments.
(c) Borrower shall notify the Administrative Agent of any election to terminate
or reduce the Commitments under paragraph (b) of this Section at least two
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 Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by Borrower may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such
notice may be revoked by 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 Commitments.
Section 2.10 Optional Prepayments. Borrower may, upon notice to each
Lender identical to that required for related borrowings under this Agreement,
from time to time and without premium or penalty, prepay its Notes, in whole or
in part, so long as the aggregate amounts of all partial prepayments of
principal concurrently paid on such Notes equals $5,000,000 or any higher
integral multiple of $1,000,000 or the aggregate outstanding balance of the
Loans, and so long as Borrower does not prepay any Revolving Loan Advance,
Competitive Bid Advance or Swing Line Advance except in accordance herewith. Any
amounts prepaid pursuant to this Section shall be in addition to, and not in
lieu of, all payments otherwise required to be paid under the Loan Documents at
the time of such prepayment.
Section 2.11 Payments to Lenders. Except as expressly set forth in
Section 2.6(b) with respect to repayment of Swing Line Advances and Section
2.22(b) with respect to repayment of Competitive Bid Advances, Borrower will
make each payment which it owes under the Loan Documents to Administrative Agent
at its principal banking office in Dallas, Texas, or to such other office as
Administrative Agent may specify from time to time by notice to Borrower for the
account of each Lender to whom such payment is owed, without the application of
any setoff, deduction or counterclaim. Each such payment must be received by
Administrative Agent not later than 1:00 p.m., Dallas, Texas time, on the date
such payment becomes due and payable, in lawful money of the United States of
America and in immediately available funds. Any payment received by
Administrative Agent after such time will be deemed to have been made on the
next Business Day. Should any such payment become due and payable on a day other
than a Business Day, the maturity of such payment shall be extended to the next
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succeeding Business Day (except, with respect to any Eurodollar Portion, as may
be otherwise required by the definition of Eurodollar Interest Period), and, in
the case of a payment of principal or past due interest, interest shall accrue
and be payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due.
All payments applied to principal or interest on any Note shall be
applied first to any interest then due and payable, then to principal then due
and payable, and last to any prepayment of principal and interest in compliance
with Section 2.10. Unless otherwise expressly provided, all payments by any
Obligor pursuant to this Agreement or any other Loan Document shall be made by
such Obligor to Administrative Agent for account of Agents and Lenders pro rata
among Obligations of the same type and, if applicable, having the same
Eurodollar Interest Period or, in the case of Swing Line Advances or Competitive
Bid Advances, the same maturity date.
Section 2.12 Letters of Credit. Subject to the terms and conditions
hereof, Borrower may request Issuing Bank to issue one or more Letters of
Credit, provided that, after taking such Letter of Credit into account:
(a) the sum of (1) the aggregate principal amount of Revolving Loans
outstanding at such time, (2) the aggregate principal amount of LC
Obligations outstanding at such time, (3) the aggregate principal amount of
outstanding Swing Line Advances to Borrower and (4) the aggregate principal
amount of outstanding Competitive Bid Advances to Borrower, does not exceed
the least of (i) the aggregate of all Lenders' Loan Commitments at such
time or (ii) the Facility Amount;
(b) the aggregate amount of LC Obligations outstanding at such time after
giving effect to such request does not exceed $50,000,000;
(c) the expiration date of such Letter of Credit is prior to the Maturity Date,
unless otherwise agreed to by all of the Lenders and the Issuing Bank;
(d) such Letter of Credit is to be used for general corporate purposes of
Borrower or any of its Subsidiaries, subject to paragraph (e) of this
Section;
(e) the terms of such Letter of Credit are acceptable to Issuing Bank in the
reasonable exercise of its discretion; and
(f) all other conditions in this Agreement to the issuance of such Letter of
Credit have been satisfied.
Issuing Bank will honor any such request if the foregoing conditions (a) through
(g) (herein called the "LC Conditions") have been met as of the date of issuance
of such Letter of Credit. Nothing herein shall be interpreted or deemed to
obligate any Agent, other than Administrative Agent, or any Lender to issue any
Letter of Credit hereunder, and the obligation of Administrative Agent to act as
Issuing Bank is subject to paragraphs (a) through (g) of this Section and to
satisfaction of the conditions set forth in Article 3.
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Section 2.13 Requesting Letters of Credit. Borrower must make written
application pursuant to an LC Application for any Letter of Credit at least
three (3) Business Days before the date on which Issuing Bank is requested to
issue such Letter of Credit. By making any such written application Borrower
shall be deemed to have represented and warranted that the LC Conditions and the
conditions precedent set forth in Section 3.2 will be met as of the date of
issuance of such Letter of Credit. Each such LC Application must be made in such
form as may mutually be agreed upon by Issuing Bank and Borrower. No more than
two (2) Business Days after the LC Conditions for a Letter of Credit have been
met as described in Section 2.12, Issuing Bank will issue such Letter of Credit
at Issuing Bank's office in Dallas, Texas or at such other office of which
Issuing Bank shall give Borrower written notice. In the event of a conflict
between any provision contained in this Agreement and any provision contained in
any LC Application, the provision contained in this Agreement shall control.
Section 2.14 Reimbursement of Letters of Credit.
(a) Reimbursement by Borrower. Each payment of a draft or demand for payment
honored by Issuing Bank under a Letter of Credit shall constitute a loan to
and obligation of Borrower. Promptly upon receipt of written notice of
Issuing Bank's honoring of a Letter of Credit, Borrower promises to pay to
Issuing Bank, or to Issuing Bank's order at such Issuing Bank's office or
at such other office of which Issuing Bank shall give Borrower written
notice, on demand, in legal tender of the United States of America, any and
all amounts paid by Issuing Bank under any Letter of Credit, together with
interest on any such amounts from the date payment is made by Issuing Bank
under such Letter of Credit until but not including the date of the
repayment of such amounts to Issuing Bank, at the Base Rate; provided that
if any such payment or reimbursement shall be reimbursed to Issuing Bank on
the date Issuing Bank makes such payment or disbursement, interest shall be
payable on the reimbursable amount at such rate for one (1) day. In the
event that Borrower fails to pay when due any Matured LC Obligation owed by
it to Issuing Bank, Administrative Agent may, at its option, and without
any notice or further authorization from Borrower, make, pro rata on behalf
of the Lenders, a Revolving Loan Advance under this Agreement to Borrower
in the amount of such unpaid Matured LC Obligation (whether or not such
amount is less than the minimum Revolving Loan Advance or would result in
the outstanding Obligations being greater than or equal to the Facility
Amount), and apply the proceeds of such Revolving Loan Advance to the
payment of such Matured LC Obligation. Borrower hereby expressly requests
and irrevocably authorizes Administrative Agent to do all of the foregoing.
Revolving Loan Advances used to refinance Matured LC Obligations shall bear
interest as provided in this Agreement and in the Loan Notes. Borrower
hereby promises to pay, when and as due, all present and future levies,
costs and charges whatsoever imposed, assessed, levied or collected on,
under or in respect of this Agreement with respect to any Letter of Credit
and any payments of principal, interest or other amounts made on or in
respect of any thereof (excluding, however, any such levies, costs and
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charges imposed on or measured by the net income or receipts of Issuing
Bank). Borrower promises to indemnify Issuing Bank against, and to
reimburse Issuing Bank on demand for, any of the foregoing levies, costs or
charges paid by Issuing Bank and any loss, liability, claim or expense,
including interest, penalties and legal fees, that Issuing Bank may incur
because of or in connection with the failure of Borrower to make any such
payment of levies, costs or charges when and as due or any payment of
Matured LC Obligations when and as due.
Borrower's obligation to reimburse Issuing Bank under this paragraph (a) of
this Section for payments and disbursements made by Issuing Bank under any
Letter of Credit issued pursuant to this Section shall be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which Borrower may have or have
had against Issuing Bank or any Lender, including, without limitation, any
defense based on the failure of the demand for payment under such Letter of
Credit to conform to the terms of such Letter of Credit or the legality,
validity, regularity or enforceability of such Letter of Credit; provided,
however, that Borrower shall not be obligated to reimburse Issuing Bank for
any wrongful payment or disbursement made by Issuing Bank under any Letter
of Credit as a result of acts or omissions constituting gross negligence or
willful misconduct on the part of Issuing Bank or any of its officers,
employees or agents.
(b) Reimbursement by Lenders. Issuing Bank irrevocably agrees to grant and
grant and hereby grants to each Lender, and, each Lender irrevocably agrees
to accept and purchase and hereby accepts and purchases from Issuing Bank,
on the terms and conditions hereinafter stated, for such Lender's own
account and risk an undivided interest equal to such Lender's Percentage
Share of Issuing Bank's obligations and rights under each Letter of Credit
issued hereunder and the amount of each draft paid by Issuing Bank
thereunder. In the event that Borrower should fail to pay Issuing Bank on
demand the amount of any draft or other request for payment drawn under a
Letter of Credit as provided in paragraph (a) of this Section, each Lender
shall, before 2:00 p.m., Dallas, Texas time, on the Business Day Issuing
Bank shall have given notice to Lenders of Borrower's failure to so pay
Issuing Bank, if such notice is given by 10:00 a.m., Dallas, Texas time (or
on the Business Day immediately succeeding the day such notice is given
after 10:00 a.m., Dallas, Texas time), pay to Issuing Bank at Issuing
Bank's offices, or at such other office of which Issuing Bank shall have
given Lenders written notice, in legal tender of the United States of
America, in same day funds, such Lender's Percentage Share of the amount of
such draft or other request for payment from Borrower plus interest on such
amount from the date Issuing Bank shall have paid such draft or request for
payment to the date of such payment by such Lender at the Federal Funds
Rate. Each Lender's obligation to reimburse Issuing Bank pursuant to the
terms of this Section is irrevocable and unconditional; provided, however,
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that Lenders shall not be obligated to reimburse Issuing Bank for any
wrongful payment or disbursement made by Issuing Bank under any Letter of
Credit as a result of acts or omissions constituting gross negligence or
willful misconduct on the part of Issuing Bank or any of its officers,
employees, Affiliates or agents. Whenever, at any time after Issuing Bank
has made payment under any Letter of Credit, and has received from any
Lender its Percentage Share of such payment in accordance with this
subsection, Issuing Bank receives any payment related to such Letter of
Credit (whether directly from Borrower or otherwise, including proceeds of
collateral applied thereto by Issuing Bank), or any payment of interest on
account thereof, Issuing Bank will distribute to such Lender its Percentage
Share thereof; provided, however, that in the event that any such payment
received by Issuing Bank shall be required to be returned by Issuing Bank,
such Lender shall return to Issuing Bank the portion thereof previously
distributed by Issuing Bank to it. Each Lender shall indemnify and hold
Issuing Bank harmless from and against any and all losses, liabilities
(including, without limitation, liabilities for penalties), actions, suits,
judgments, demands, damages, costs and expenses (including, without
limitation, attorneys' fees and expenses) resulting from any failure on the
part of such Lender to provide, or from any delay in providing, in
accordance with this paragraph to Issuing Bank such Lender's Percentage
Share of the amount of any payment or disbursement made by Issuing Bank to
settle its obligations under any draft drawn under any Letter of Credit.
(c) Cash Collateral Upon Event of Default. Upon the occurrence of any Default
or Event of Default and the acceleration of the maturity of the Loans, an
amount equal to the amount of the aggregate contingent liability of Issuing
Bank and Lenders in connection with each Letter of Credit then in effect
shall be deemed (as between Lenders and Borrower) to have been paid or
disbursed by Issuing Bank and Lenders under such Letter of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed), and Borrower shall be immediately obligated to pay to
Administrative Agent for the pro rata benefit of Lenders in accordance with
their respective Percentage Shares, the amount so deemed to have been so
paid or disbursed, which payment shall be made by depositing Cash
Collateral with Administrative Agent in accordance with the provisions of
paragraph (e) of this Section.
(d) Procedures for Depositing and Returning of Cash Collateral. Any cash
collateral amounts received by Administrative Agent pursuant to the
provisions of paragraph (c) of this Section (the "Cash Collateral") shall
be deposited in a separate interest bearing cash collateral account
maintained at the offices of Administrative Agent or another Lender
designated by Administrative Agent under the sole dominion and control of
Administrative Agent and shall be retained by Administrative Agent for the
pro rata benefit of Lenders in accordance with their respective Loans and
LC Obligations as collateral security for, and Borrower hereby grants to
Administrative Agent for the benefit of the Lenders a security interest in
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such Cash Collateral including all interest accruing thereon and the
proceeds thereof to secure, first the payment of the Obligations of
Borrower under or in connection with its Letters of Credit, and then the
other Obligations of Borrower under and in connection with this Agreement
and the other Loan Documents, including all Obligations of Borrower under
its Notes pro rata to each Lender in accordance with its Loans and
Percentage Share of all LC Obligations. All Cash Collateral delivered to
Administrative Agent may be applied by Administrative Agent from time to
time against any of Borrower's reimbursement Obligations with respect to
any Letter of Credit as to which a draw is made. If and to the extent that
the Default or Event of Default giving rise to the Required Lenders' demand
for Cash Collateral has been cured to the reasonable satisfaction of
Required Lenders and the acceleration of the Loans has been rescinded and
annulled pursuant to Section 6.3 or (a) all Obligations of Borrower have
been fully paid and satisfied, (b) no Letters of Credit remain outstanding
and (c) Lenders' Commitments have terminated, Administrative Agent shall
promptly return to Borrower, upon Borrower's request therefor, all amounts
previously paid to Administrative Agent pursuant to paragraph (c) of this
Section and not theretofore returned by Administrative Agent to Borrower or
applied by Administrative Agent to reduce amounts payable by Borrower to
Lenders under or with respect to the Letters of Credit or other amounts due
to Lenders or Agents hereunder or under the other Loan Documents.
Section 2.15 Letter of Credit Fees. In consideration of Issuing
Bank's issuance of any Letter of Credit and each other Lender's agreement to
purchase a risk participation therein, Borrower agrees to pay to Administrative
Agent:
(a) a letter of credit fronting fee for the account of the Issuing Bank with
respect to such Letter of Credit upon issuance of each Letter of Credit in
an amount equal to the greater of (x) $500 or (y) one-eighth of one percent
(1/8 of 1%) per annum calculated on the face amount thereof; and
(b) a letter of credit fee for the account of Lenders, to be distributed to
Lenders ratably in accordance with their Percentage Shares, calculated on
the face amount of each Letter of Credit in the amount of the applicable
Eurodollar Margin, payable quarterly in arrears and at the expiration or
termination of each Letter of Credit.
Section 2.16 Capital Reimbursement. If either (a) the introduction or
implementation of, or the compliance with, or any change in, or in the
interpretation of, any law, rule or regulation, or (b) the introduction or
implementation of or the compliance with any request, directive or guideline
from any central bank or Governmental Authority (whether or not having the force
of law) affects or would affect the amount of capital required to be maintained
by any Lender or any corporation controlling any Lender, then, upon demand by
such Lender, Borrower will immediately pay to Administrative Agent for the
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benefit of such Lender, from time to time as specified by such Lender, such
additional amount which such Lender shall determine to be appropriate to
compensate such Lender or any corporation controlling such Lender in light of
such circumstances, to the extent that such Lender reasonably determines that,
because of the existence of such circumstances, the amount of any such capital
would be increased or the rate of return on any such capital would be reduced,
in whole or in part, by or as a consequence of the existence of such Lender's
Commitments, its Loans, its Percentage Share of LC Obligations, and its other
commitments under this Agreement to Borrower, subject to the provisions of
Section 2.21.
Section 2.17 Increased Cost of Eurodollar Portions. If any applicable
domestic or foreign law, treaty, rule, directive or regulation (whether now in
effect or hereinafter enacted or promulgated, including Regulation D) or any
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law):
(a) shall change the basis of taxation of payments to any Lender of any
principal, interest, or other amounts attributable to any Eurodollar
Portion of its Loans, its Percentage Share of LC Obligations or its Swing
Line Advances or Competitive Bid Advances or otherwise due under this
Agreement in respect of any Eurodollar Portion of its Loans or its Swing
Line Advances or Competitive Bid Advances (other than taxes imposed on the
overall net income of such Lender or any lending office of such Lender by
any jurisdiction in which such Lender or any such lending office is
located);
(b) shall change, impose, modify, apply or deem applicable any reserve, special
deposit or similar requirements in respect of any Eurodollar Portion of any
Lender (excluding those for which such Lender is fully compensated pursuant
to adjustments made in the definition of Adjusted Eurodollar Rate) or
against assets of, deposits with or for the account of, or credit extended
by, such Lender; or
(c) shall impose on any Lender, the certificate of deposit market or the
interbank eurocurrency deposit market any other condition affecting any
Eurodollar Portion;
and the result of any of the foregoing (a) through (c) is to (1) increase the
cost to any Lender of funding or maintaining any Eurodollar Portion, Swing Line
Advance or Competitive Bid Advance, as the case may be, or (2) to reduce the
amount of any sum receivable by any Lender in respect of any Eurodollar Portion,
Swing Line Advance or Competitive Bid Advance, as the case may be, by an amount
reasonably deemed by such Lender to be material; then (i) such Lender shall
promptly notify Administrative Agent and Borrower in writing of the happening of
such event, (ii) Borrower shall thereafter upon demand pay to Administrative
Agent for the account of such Lender such additional amount or amounts as will
compensate such Lender for such additional cost or reduction, subject to the
provisions of Sections 2.21 and 2.19, and (iii) Borrower may elect, by giving to
Administrative Agent and Lender not less than three (3) Business Day's notice,
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to convert all (but not less than all) of any such Eurodollar Portion into a
part of the Base Rate Portion.
Section 2.18 Availability. If (a) any change in applicable laws,
treaties, rules or regulations or in the interpretation or administration
thereof in any jurisdiction whatsoever, domestic or foreign, shall make it
unlawful or impracticable for any Lender to fund or maintain Eurodollar
Portions, or shall materially restrict the authority of any Lender to purchase
or take offshore deposits of dollars ("Eurodollars"), or to issue Letters of
Credit or fund its Percentage Share of LC Obligations, or (b) any Lender
determines that matching deposits appropriate to fund or maintain any Eurodollar
Portion are not available to it, or (c) any Lender determines that the formula
for calculating the Adjusted Eurodollar Rate does not fairly reflect the cost to
such Lender of making or maintaining loans based on such rates, then, upon
notice by such Lender to Administrative Agent and to Borrower, Borrower's right
to elect Eurodollar Portions or to apply for Letters of Credit shall be
suspended to the extent and for the duration of such illegality,
impracticability, restriction or condition, and all Eurodollar Portions (or
portions thereof) which are then outstanding or are then the subject of any Rate
Election and which cannot lawfully or practicably be maintained or funded shall
immediately become or remain part of the Base Rate Portions of such Lender's
Loan, subject to the provisions of Sections 2.21 and 2.19. Borrower agrees to
indemnify Administrative Agent and each Lender and hold Administrative Agent and
each Lender harmless against all costs, expenses, claims, penalties, liabilities
and damages which may result from any such change in law, treaty, rule,
regulation, interpretation or administration, subject to the provisions of
Section 2.21.
Section 2.19 Funding Losses. In addition to its other obligations
hereunder, subject to the provisions of Section 2.21, Borrower shall indemnify
each Lender against, and reimburse each Lender on demand for, any loss or
expense incurred or sustained by such Lender, determined as provided in this
Section, as a result of (a) any payment or prepayment (whether authorized or
required hereunder or otherwise) of all or a portion of a Eurodollar Portion of
Borrower on a day other than the day on which the applicable Eurodollar Interest
Period ends, (b) any payment or prepayment, whether required hereunder or
otherwise, of a Loan of Borrower made after the delivery, but before the
effective date, of a Rate Election, if such payment or prepayment prevents such
Rate Election from becoming fully effective, (c) the failure of any Revolving
Loan Advance or Swing Line Advance or Competitive Bid Advance to be made to
Borrower or of any Rate Election of Borrower to become effective due to any
condition precedent to a Revolving Loan Advance or Swing Line Advance or
Competitive Bid Advance not being satisfied, due to the inability of
Administrative Agent (acting reasonably and in accordance with Section 2.18) to
determine a Eurodollar Rate for a Eurodollar Portion of Borrower or due to any
other action or inaction of any Obligor, (d) any conversion (whether authorized
or required hereunder or otherwise) of all or any portion of any Eurodollar
Portion of Borrower into a Base Rate Portion or into a different Eurodollar
Portion on a day other than the day on which the applicable Eurodollar Interest
Period ends, (e) any payment or prepayment of all or a portion of a Swing Line
Advance to Borrower on a day other than the maturity date for such Swing Line
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Advance or (f) any payment or prepayment of all or a portion of a Competitive
Bid Advance on a day other than the maturity date for such Competitive Bid
Advance.
Upon the occurrence of an event as described in subsections (a) through
(f) of this Section, the method to be used by each Lender to calculate the loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund or maintain Eurodollar Portions of
Revolving Loan Advances, Swing Line Advances or Competitive Bid Advances, as the
case may be, is as follows:
Funding Loss = P x (F-R) x D/360
P = principal amount of payment, prepayment, conversion,
non-borrowing or non-effective Rate Election
F = Eurodollar Rate or Swing Line Rate or Competitive Bid
Rate, as the case may be (adjusted for Reserve
Percentage), utilized in the calculations of the
Eurodollar Rate or Swing Line Rate or Competitive Bid
Rate, as the case may be, on the Eurodollar Portion or
Swing Line Advance or Competitive Bid Advance which is
being paid, prepaid, converted, not borrowed or not
subject to effective Rate Election
R = reinvestment rate (as hereinafter defined)
D = number of days from the date of the payment, prepayment,
conversion, non-borrowing or non-effectiveness until the
day on which the Eurodollar Interest Period of the
Eurodollar Portion ends or the Swing Line Advance or
Competitive Bid Advance matures
Reinvestment rate as it is used herein will be equal to the Eurodollar Rate,
adjusted for the Reserve Percentage quoted to such Lender, or the Swing Line
Rate or Competitive Bid Rate that would be quoted by such Lender, as the case
may be, effective for the date on which the payment, prepayment, conversion,
non-borrowing or non-effectiveness occurs. For purposes of determining the
reinvestment rate for purposes of this Section, the Eurodollar Rate will be the
quote for either one (1) month, two (2) months, three (3) months, six (6)
months, nine (9) months or twelve (12) months, the Competitive Bid Rate will be
the quote for a number of days between seven (7) and 360, and the Swing Line
Rate will be the quote for a number of days between one (1) and fourteen (14),
whichever most closely approximates (but which may contain more or fewer days
than) the number of days from the date of the payment, prepayment, conversion,
non-borrowing or non-effectiveness until the last day of the relevant Eurodollar
Interest Period or the scheduled maturity, as the case may be, of the Eurodollar
Portion, Competitive Bid Advance or Swing Line Advance, as the case may be, in
respect of which the payment, prepayment, conversion, non-borrowing or
non-effectiveness occurs; provided that if such number of days in respect of a
Eurodollar Rate is the midpoint between two such periods, such rate will be the
lower of the two rates for such periods.
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Section 2.20 Taxes. All payments by Borrower of principal of, and
interest on, the Loans, the LC Obligations and all other amounts payable
hereunder shall be made free and clear of and without deduction for any present
or future income, excise, stamp, or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or measured
by any Lender's net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to be
made by Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then, subject to the provisions of Section
2.21, Borrower will:
(a) pay directly to the relevant authority the full amount required to be so
withheld or deducted;
(b) promptly forward to Administrative Agent an official receipt or other
documentation satisfactory to Administrative Agent evidencing such payment
to such authority; and
(c) pay to Administrative Agent for the account of the applicable Lender(s)
such additional amount(s) as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender
would have received had no such withholding or deduction been required and
Borrower hereby acknowledges that it is not entitled to and will not seek
recovery or restitution of any amount due to any of the Lenders or Agents
and paid by Borrower pursuant to this clause (c) or pursuant to the next
sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, Borrower will
promptly pay such additional amounts to Administrative Agent for the account of
such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.21.
Borrower shall pay all stamp, transaction, registration and similar
taxes (including financial institutions' duties, debit taxes or other taxes
payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if Borrower fails to pay
any such charges or taxes after reasonable notice from any such Lender or Agent,
fines and penalties) which may be payable or determined to be payable in
relation to the execution, delivery, performance or enforcement of this
Agreement or any Loan Document or any other transaction contemplated by any Loan
Document to which Borrower is a party. Borrower hereby indemnifies each Lender
and Agent against any liability resulting from delay or omission to pay such
charges or taxes except to the extent the liability results from failure by the
relevant Lender or Agent to pay any such tax after having been delivered funds
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to do so by Borrower or to the extent such liability is for fines and penalties
resulting from such Lender's or Agent's failure to provide reasonable notice to
Borrower as provided herein.
If Borrower fails to pay any Taxes or Stamp Taxes when due to the
appropriate taxing authority or fails to remit to Administrative Agent, for the
account of the respective Lenders, the required receipts or other required
documentary evidence, Borrower shall indemnify Lenders for any Taxes, interest
or penalties that may become payable by any Lender as a result of any such
failure, subject to the provisions of Section 2.21. For purposes of this
Section, a distribution hereunder by Administrative Agent or any Lender to or
for the account of any Lender or Agent shall be deemed a payment by the subject
Borrower.
Borrower waives any statutory right to recover from any Agent or any
Lender any amount due to any such Agent or Lender and paid by Borrower under
this Section.
On or prior to the first date on which interest or fees are payable
hereunder for the account of any Lender, each Lender that is organized under the
laws of a jurisdiction other than the United States shall execute and deliver to
Administrative Agent, three (3) or more (as Administrative Agent may reasonably
request) United States Internal Revenue Service Forms 1001 or 4224 or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to Administrative
Agent three (3) additional copies of such form (or a successor form) on or
before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by Administrative Agent, in each case certifying that such
Lender is entitled to receive payments from Borrower under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms of the type previously
delivered inapplicable or which would prevent such Lender from duly completing
and delivering such form with respect to it and such Lender advises
Administrative Agent that it is not capable of receiving such payments on the
basis reflected in such previously delivered form without any deduction or
withholding of United States federal income tax. Administrative Agent shall
provide one (1) copy of each of such forms or documents so provided to Borrower
and Documentation Agent.
Section 2.21 Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Sections 2.16, 2.17,
2.18, 2.19 and 2.20 and Borrower's obligation with respect thereto, shall be
limited and qualified by and subject to the following:
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(a) Borrower's obligation to pay, satisfy or recognize such claim shall be
limited to costs or losses incurred within one (1) year immediately prior
to any demand or request therefor upon Borrower;
(b) each Lender's demand for reimbursement, payment or indemnity from Borrower
must be limited to that which is being generally applied at the time by
such Lender for comparable borrowers and credits subject to credit
agreements similar to this Agreement, but without regard to provisions
similar to this Section;
(c) each Lender which asserts its rights with respect thereto or which is
seeking or imposing such reimbursement, payment or indemnity shall provide
evidence regarding the basis of such claim and the calculation and
application thereof in reasonable detail and, in determining such amount,
each Lender may use reasonable methods of attribution and averaging;
(d) each Lender which is seeking payment or reimbursement pursuant to Section
2.20 shall, if so requested by Borrower, use reasonable efforts (subject to
the overall policy considerations of such Lender) to designate a different
lending office hereunder if to do so will avoid the need for, or reduce the
amount of, any such payment or reimbursement; provided that, Lender would,
in its sole but reasonable determination, suffer no material economic,
legal or regulatory disadvantage or burden;
(e) Borrower may, in its sole discretion, elect, unless and until the
applicable Lender notifies Borrower that the circumstances giving rise
thereto no longer apply to such Lender, that, to the extent that a Lender's
claims for such reimbursements, payments or indemnities would be reduced
thereby, that subject to Section 2.19, (1) all Loans to Borrower which
would otherwise be made by such Lender as Eurodollar Portions shall be made
instead as Base Rate Portions (all of which interest and principal shall be
payable as provided herein with respect to the related Eurodollar Portions
of the Lenders), and (2) after each Eurodollar Portion has been repaid, all
payments of principal which would otherwise would be applied to repay such
Eurodollar Portion shall be applied to repay Base Rate Portions instead;
and
(f) Borrower may designate a replacement Lender (which may be one (1) or more
of the then existing Lenders hereunder and which shall be reasonably
satisfactory to Administrative Agent) to purchase the Notes and Percentage
Share of LC Obligations, in each case without recourse, and assume the
Commitments and all other obligations hereunder of any Lender that has
suspended the availability of Eurodollar Portions pursuant to Section 2.18
or that has demanded reimbursement, payment or indemnity under Sections
2.16, 2.17, 2.18, 2.19 or 2.20, and such Lender shall be obligated to sell,
transfer and deliver all of its Notes, and Percentage Share of LC
Obligations to such replacement Lender for the outstanding principal amount
of such Notes, plus Lender's Percentage Share of LC Obligations, plus in
each case, accrued interest thereon and such Lender's portion of accrued
but unpaid fees through the date of such purchase, and permit such
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replacement lender to assume its Commitments. Borrower shall be obligated
to pay all additional amounts due to the Lender being replaced pursuant to
Sections 2.16, 2.17, 2.18, 2.19 and 2.20 through the date of such purchase
and assumption; provided, that if the replacement Lender fails to purchase
all such rights and interests and assume all such Commitments on the
specified date in accordance herewith, Borrower shall continue to be
obligated to pay such amounts to such Lender which was to have been
replaced and provided further that Borrower shall pay any Taxes or Stamp
Taxes, if any, as a result of such transfer.
Section 2.22 Competitive Bid Advances.
(a) In addition to borrowings pursuant to Section 2.1(a) or Section 2.4,
Borrower may request each Lender severally to submit offers (herein called
a "Competitive Bid Offer") to make advances to Borrower on any Business Day
during the Loan Commitment Period as provided in this Section (herein
called "Competitive Bid Advances"); provided, however, that each Lender may
in its sole discretion, but shall have no obligation whatsoever to submit
such offers, and Borrower may, but shall have no obligation to, accept any
such offers.
(b) Procedure for Competitive Bid Advances.
(i) Borrower may request Competitive Bid Advances by delivering a request
for a Competitive Bid Advance to each Lender (which has indicated to
Borrower its interest in making a Competitive Bid Advance) and
Administrative Agent not later than 9:00 a.m., Dallas, Texas time,
one (1) Business Day prior to the proposed borrowing date. Each
request for a Competitive Bid Advance shall be in substantially the
form of Exhibit N hereto (herein called a "Request for Competitive
Bid Offer") and may solicit bids for Competitive Bid Advances having
not more than three (3) alternative maturity dates and for
Competitive Bid Advances in any respective principal amount equal to
$10,000,000 or an integral multiple of $1,000,000 in excess thereof
for each maturity date requested. The maturity date for each
Competitive Bid Advance shall be not less than fifteen (15) days nor
more than 360 days after the borrowing date therefor (and in any
event not after the Maturity Date).
(ii) Upon receipt of a Request for Competitive Bid Offer, any Lender that
elects, in its sole discretion, to do so, shall irrevocably offer to
make one (1) or more Competitive Bid Advances at a fixed rate of
interest determined by such Lender in its sole discretion for each
such Competitive Bid Advance. Any such irrevocable offer shall be
made by delivering a Competitive Bid Offer to Administrative Agent
and to Borrower, before 9:00 a.m., Dallas, Texas time (or, in the
case of a Competitive Bid Offer by Administrative Agent, before 8:45
a.m., Dallas, Texas time), on the proposed borrowing date, setting
forth the maximum amount of Competitive Bid Advances for each
maturity date, and the aggregate maximum amount for all maturity
dates, which such Lender would be willing to make (which amounts may
exceed such Lender's Percentage Share of the Commitments) and the
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fixed rate of interest at which such Lender is willing to make each
such Competitive Bid Advance, which fixed rate of interest may or may
not be, in such Lender's discretion, different for each Competitive
Bid Advance (respectively herein a "Competitive Bid Rate"). Borrower
shall pay to Administrative Agent a fee of $500 on each day that
Borrower accepts a Competitive Bid Offer.
(iii) The Competitive Bid Offer delivered by each Lender in response to a
Request for Competitive Bid Offer shall set forth an amount proposed
to be loaned by such Lender for each maturity date requested by
Borrower that is equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof. Any Competitive Bid Offer by any Lender
that: (A) does not substantially conform to the form of Exhibit O
hereto, (B) contains qualifying, conditional or similar language, (C)
proposes terms other than or in addition to those set forth in the
applicable Request for Competitive Bid Offer or (D) is received by
Borrower after the applicable time specified in this subsection,
shall be rejected by Borrower and Administrative Agent (and
Administrative Agent shall notify the relevant Lender of such
rejection for one or more of the matters described in the foregoing
(A) through (D) by telephone and telecopy as soon as practicable
thereafter).
(iv) Borrower shall before 10:00 a.m., Dallas, Texas time, on the proposed
borrowing date either, in its absolute discretion:
(A) withdraw such Request for Competitive Bid Offer by giving
telephonic notice to that effect;
(B) accept one (1) or more of the Competitive Bid Offers by giving
telephonic notice to Administrative Agent (immediately confirmed
by delivery to Administrative Agent by facsimile transmission of
a Bid Acceptance) of the amount of Competitive Bid Advance(s)
for each relevant maturity date to be made by the relevant
Lender(s) (which amount for each such maturity date shall be
equal to or less than the maximum amount for such maturity date
specified in the Competitive Bid Offer of such Lender(s), and
for all maturity dates included in such Competitive Bid Offer
shall be equal to or less than the aggregate maximum amount
specified in such Request for Competitive Bid Offer for all such
maturity dates) and reject any Competitive Bid Offers not
accepted by Borrower by giving telephonic notice to
Administrative Agent of such rejection; provided, however, that
(1) Borrower may not accept Competitive Bid Offers for any
maturity date in an aggregate principal amount in excess of the
maximum principal amount requested in the related Request for
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Competitive Bid Offer (and Competitive Bid Advances allocated to
a Lender on a borrowing date for each relevant maturity date
shall be in a principal amount equal to $10,000,000 or an
integral multiple of $1,000,000 in excess thereof); and (2)
Administrative Agent shall notify the Lender that submitted a
Competitive Bid Offer for such Business Day of Borrower's
decision by telecopying to each such Lender a copy of the Bid
Acceptance by no later than 12:00 noon, Dallas, Texas time, on
the borrowing date specified in the Request for Competitive Bid
Offer; or
(C) Borrower may accept or reject any Competitive Bid Offer(s) in
whole or in part; provided that after giving effect to any such
accepted Competitive Bid Offer(s), the sum of (i) the aggregate
principal amount of the Revolving Loans and Swing Line Advances
outstanding at such time, (ii) the aggregate principal amount of
LC Obligations outstanding at such time, and (iii) the aggregate
principal amount of Competitive Bid Advances outstanding at such
time, does not exceed the Facility Amount.
(v) If Borrower notifies Administrative Agent that a Request for
Competitive Bid Offer is withdrawn pursuant to clause (iv) above,
the Competitive Bid Advance requested thereby shall not be made.
(vi) Each Lender which is to make a Competitive Bid Advance shall, before
1:00 p.m., Dallas, Texas time, on the borrowing date specified in the
Request for Competitive Bid Offer applicable thereto, make available
to Administrative Agent in immediately available funds the amount of
each Competitive Bid Advance to be made by such Lender.
Administrative Agent shall deposit such funds to an account
designated by Borrower by no later than 1:15 p.m., Dallas, Texas
time, on such date.
(vii) Borrower shall repay to Administrative Agent, for the account of each
Lender which has made a Competitive Bid Advance, on the maturity date
of each Competitive Bid Advance (such maturity date being that
specified by Borrower for repayment of such Competitive Bid Advance
in the related Request for Competitive Bid Offer) the then unpaid
principal amount of such Competitive Bid Advance. Borrower shall not
have the right to prepay any principal amount of any Competitive Bid
Advance. If any Lender makes a Competitive Bid Advance on a day on
which Borrower is to repay all or any part of an outstanding
Competitive Bid Advance from such Lender, if requested by Borrower,
such Lender shall apply the proceeds of its new Competitive Bid
Advance to make such repayment and, in such instance, only an amount
equal to the difference (if any) between the amount being borrowed
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and the amount being repaid shall be made available by such Lender to
Administrative Agent as provided in Section 2.22(b)(vi), or remitted
by Borrower to Administrative Agent as provided in this Section
2.22(b)(vii), as the case may be.
(viii) Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the borrowing date to the stated
maturity date thereof, at the rate of interest determined pursuant to
clause (b) (ii) above (calculated on the basis of a 360 day year for
actual days elapsed including the first but excluding the last), but
not in excess of the Maximum Lawful Rate, payable on the maturity
date with respect to such Competitive Bid Advance and, if such
maturity date is more than 90 days after the date of making such
Competitive Bid Advance, on such ninetieth day and each ninetieth day
occurring after such ninetieth day until the maturity date. If all or
a portion of the principal of or interest on any Competitive Bid
Advance shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), without limiting any rights of any
Lender under this Agreement, (i) such overdue principal amount shall
bear interest from the date on which such payment was due (other than
on the scheduled maturity date with respect thereto) at the Default
Rate, but not in excess of the Maximum Lawful Rate, until paid in
full (as well as after as before judgment) and (ii) such overdue
interest shall bear interest from the date on which payment was due
at the Default Rate, but not in excess of the Maximum Lawful Rate,
until paid in full (as well as after as before judgment).
(c) The Competitive Bid Advances made by each Lender shall be evidenced by a
single promissory note of Borrower payable to the order of such Lender
substantially in the form of Exhibit A-3 attached hereto, with appropriate
insertions (herein called a "Competitive Bid Note"). The date, amount,
Competitive Bid Rate and maturity date of each Competitive Bid Advance made
by a Lender to Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books.
(d) The Competitive Bid Advances will be used by Borrower to provide working
capital and for the general business purposes of Borrower and its
Subsidiaries. No Competitive Bid Advances shall be used for the purpose of
purchasing or carrying any Margin Stock in violation of the Margin
Regulations.
(e) The obligation of Lenders to make each Competitive Bid Advance after timely
acceptance by Borrower is further subject to the conditions contained in
Article 3.
(f) Borrower shall not be required to accept Competitive Bid Offers on the
basis of the lowest Competitive Bid Rate offered, but may in its sole
discretion accept any Competitive Bid Offer regardless of the Competitive
Bid Rate(s) offered.
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ARTICLE 3
CONDITIONS PRECEDENT TO LENDING
Section 3.1 Initial Conditions Precedent. No Lender has any
obligation to make its first Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance and Issuing Bank has no obligation to issue the first
Letter of Credit (whether or not otherwise agreed to by Issuing Bank) unless:
(a) Administrative Agent shall have received all of the following with copies
for each Lender, at Administrative Agent's office in Midland, Texas:
(1) This Agreement, the Notes, those Security Instruments and Guaranties
listed on Schedule 5 hereto, any other documents required in
connection herewith, each duly executed and delivered and in form,
substance and date satisfactory to Managing Agents.
(2) The following certificates:
(i) an "Omnibus Certificate" of the Secretary or an Assistant
Secretary and of a Designated Officer, which shall contain
the names and signatures of the officers of Borrower
authorized to execute Loan Documents and which shall certify
to the truth, correctness and completeness of the following
exhibits attached thereto: (A) a copy of resolutions duly
adopted by the Board of Directors of Borrower and in full
force and effect at the time this Agreement is entered into,
authorizing the execution of this Agreement and the other
Loan Documents delivered or to be delivered in connection
herewith and the consummation of the transactions
contemplated herein and therein, (B) a copy of the charter
documents of Borrower and all amendments thereto, certified
by the appropriate official of Borrower's jurisdiction of
organization, and (C) a copy of the bylaws or similar
governing documents of Borrower (provided that, to the extent
Borrower has previously provided Administrative Agent
certified copies of the documents described in (B) and (C)
above, such Omnibus Certificate may omit such documents, but
shall include a statement that such documents have not been
modified in any respect since the date last so provided to
Administrative Agent, except as may be specifically noted in
such Omnibus Certificate with appropriate attachments); and
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(ii) a "Compliance Certificate" of a Designated Officer of
Borrower, of even date with such Revolving Loan Advance,
Swing Line Advance or Competitive Bid Advance or issuance of
a Letter of Credit, in which such officer certifies to the
satisfaction of the conditions set out in Section 3.2(a) and
(b) and that all conditions hereunder have been satisfied.
(3) A certificate (or certificates) of the due formation, valid existence
and good standing of Borrower in its jurisdiction of organization,
issued by the appropriate authorities of such jurisdiction.
(4) The favorable opinion of counsel for Borrower, Parent and the
Restricted Subsidiaries, given upon their express instructions
substantially in the form set forth as Exhibit H attached hereto.
(5) Documents similar to those specified in Section 3.1(a)(2)(i) and
3.1(a)(3) with respect to (i) Parent and (ii) each Restricted
Subsidiary which is or will be party to a Security Instrument or
Guaranty on the date hereof.
(6) A certificate of a Designated Officer of Borrower as to insurance
concerning the material assets of Obligors. Lenders agree that
Obligors' insurance coverage disclosed on Schedule 4 is acceptable at
the date hereof.
(b) Except as disclosed to the Lenders in the Disclosure Schedule or otherwise
in writing prior to the execution hereof and not objected to by Required
Lenders, there shall be no pending or threatened litigation, action or
proceeding against Borrower, Parent, Petroleum or Mesa or any of their
respective Subsidiaries which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(c) No event or condition shall have occurred since December 31, 1996, which is
reasonably expected to result in a Material Adverse Effect.
(d) After giving effect to such Revolving Loan Advances, Competitive Bid
Advances and Swing Line Advances and Letters of Credit, Borrower and
Lenders shall be in compliance with the Margin Regulations.
(e) The mergers among Petroleum, Mesa, Mesa Operating and Parent (the
"Mergers") shall have been consummated as contemplated by and pursuant to
that certain Amended and Restated Agreement and Plan of Merger dated April
6, 1997 (the "Merger Agreement"), among such parties, and Administrative
Agent shall have received (i) satisfactory evidence of the consummation of
such Mergers and (ii) a certificate from a Designated Officer of Borrower
certifying that the Mergers have been consummated.
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(f) A certificate of a Designated Officer of Borrower certifying that (i) all
representations and warranties made by any Obligor in this Agreement or any
other Loan Document are true and correct as of the Effective Date and (ii)
that all conditions precedent to the initial Advance contained in this
Agreement or any other Loan Document have been satisfied as of the
Effective Date.
(g) All requisite Governmental Authorities and third parties shall have
approved or consented to the Mergers and all related transactions,
including, without limitation, the issuance, closing and funding of this
Agreement and the facilities thereunder, to the extent required. All
applicable appeal periods shall have expired and there shall be, in the
judgment of the Managing Agents, in their sole discretion, no governmental
or judicial action, actual or threatened, restraining, preventing or
imposing burdensome conditions on the Mergers and all related transactions,
including, without limitation, the issuance, closing and funding of this
Agreement and the facilities thereunder.
(h) Administrative Agent shall have received documentation of the release of
all Liens associated with the Existing Mesa Facility and the Existing
Petroleum Facility, in form and substance acceptable to the Administrative
Agent, in its sole discretion.
(i) Managing Agents shall have received copies of all financial statements,
reports, notices and proxy statements sent by Parent to its stockholders
and all SEC filings concerning the Mergers.
(j) No litigation or administrative proceeding or other legal or regulatory
developments prohibiting or enjoining the consummation of the Mergers shall
exist.
(k) Exclusive of the Mergers, no "Event of Default" (as defined in the Existing
Petroleum Credit Facility) for Petroleum or "Event of Default" (as defined
in the Existing Mesa Credit Facility) for Mesa shall have occurred and be
continuing.
Section 3.2 Additional Conditions Precedent. No Lender has any
obligation to make any Revolving Loan Advance, Competitive Bid Advance or Swing
Line Advance (including its initial Advance) and Issuing Bank has no obligation
to issue any Letter of Credit (including the first) unless the following
conditions precedent have been satisfied:
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(a) All representations and warranties made by any Obligor in any Loan Document
shall be true on and as of the date of such Revolving Loan Advance, Swing
Line Advance, Competitive Bid Advance or issuance of Letter of Credit as if
such representations and warranties had been made as of the date of such
Revolving Loan Advance, Swing Line Advance or Competitive Bid Advance or
issuance of such Letter of Credit (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date).
(b) In the case of the first Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance or issuance of the first Letter of Credit, no Event
of Default, and in the case of any other Revolving Loan Advance, Swing Line
Advance or Competitive Bid Advance or issuance of a Letter of Credit, no
Default shall exist at the date of such Revolving Loan Advance, Swing Line
Advance or Competitive Bid Advance or issuance of Letter of Credit or will
occur as a result of the making of the requested Revolving Loan Advance,
Swing Line Advance or Competitive Bid Advance or the issuance of the
requested Letter of Credit.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Borrower's Representations and Warranties. To confirm
each Lender's understanding concerning Borrower and its businesses, properties
and obligations, and to induce Managing Agents, Co-Agents and each Lender to
enter into this Agreement and to make the Loans to Borrower, except as to
matters disclosed herein or in the Disclosure Schedule, Borrower represents and
warrants to Managing Agents, Co-Agents and each Lender that:
(a) No Default. No Obligor is in default in the performance of any of the
covenants and agreements contained herein or under any other Loan Document.
No event or circumstance has occurred and is continuing which constitutes a
Default.
(b) Organization, Existence and Good Standing. Each Obligor is duly organized
or incorporated, validly existing and in good standing under the laws of
its jurisdiction of organization or incorporation, having all corporate or
partnership powers required to enter into and carry out the transactions
contemplated hereby. Each Obligor is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United
States of America and the Commonwealth of Australia wherein the character
of the properties owned or held by it or the nature of the business
transacted by it makes such qualification necessary, except for any lack of
qualification, good standing or authorization that could not reasonably be
expected to have a Material Adverse Effect. Each Obligor has taken all
actions customarily taken in order to enter, for the purpose of conducting
business or owning property, each jurisdiction outside the United States
wherein the character of the properties owned or held by it or the nature
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of the business transacted by it makes such actions desirable, except for
any failure or other matter that could not reasonably be expected to have a
Material Adverse Effect.
(c) Authorization. Each Obligor has duly taken all corporate or partnership
action necessary to authorize the execution and delivery by it of the Loan
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Borrower is duly authorized to borrow funds hereunder.
(d) No Conflicts or Consents. The execution and delivery by each Obligor of the
Loan Documents to which it is a party, the performance by each Obligor of
its obligations under such Loan Documents, and the consummation of the
transactions contemplated by the various Loan Documents, including, without
limitation, the consummation of the Mergers, do not and will not (1)
conflict with any provision of the articles or certificate of
incorporation, bylaws, charter, partnership agreement or certificate or
other governing document of such Obligor, or (2) except as to matters that
could not reasonably be expected to have a Material Adverse Effect, result
in the acceleration of any Debt owed by such Obligor, or conflict with any
law, statute, rule, regulation, or material agreement, judgment, license,
order or permit applicable to or binding upon such Obligor, or require the
consent, approval, authorization or order of, or notice to or filing with,
any Governmental Authority or third party, or result in or require the
creation of any Lien upon any material assets or properties of such
Obligor, except (i) as permitted in the Loan Documents and (ii) for filings
and recordings of the Security Instruments.
(e) Enforceable Obligations. This Agreement is, and the other Loan Documents
when duly executed and delivered will be, legal, valid and binding
obligations of each Obligor which is a party hereto or thereto, enforceable
in accordance with their terms except as such enforcement may be limited by
bankruptcy, insolvency or similar laws of general application relating to
the enforcement of creditors' rights generally and by general principles of
equity.
(f) Financial Statements.
(i) The Updated Financial Statements fairly present Mesa's and Petroleum's
financial position at the respective dates thereof and the results of
Mesa's and Petroleum's operations and cash flows for the respective
periods thereof. From the date of the audited Updated Financial
Statements to the Effective Date no change has occurred in Mesa's and
Petroleum's Consolidated financial condition which could reasonably be
expected to result in a Material Adverse Effect, except as reflected
in the Disclosure Schedule. All Updated Financial Statements were
prepared in accordance with GAAP as in effect on the date thereof.
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(ii) The Unaudited Pro Forma Financial Statements of Parent for the periods
ending December 31, 1996 and March 31, 1997 contained in the Proxy
Statement, dated June 27, 1997, fairly present Parent's pro forma
financial position at the respective dates thereof and the results of
Parent's pro forma operations and cash flows for the respective
periods thereof. From the date of such financial statements to the
Effective Date no change has occurred in Mesa's or Petroleum's
Consolidated financial condition which could reasonably be expected to
result in a Material Adverse Effect on Parent's Pro Forma Consolidated
Financial Condition, except as reflected in the Disclosure Schedule.
All such financial statements were prepared in accordance with GAAP as
in effect on the date thereof.
(g) Other Obligations. As of the Effective Date, neither Borrower nor any of
its Consolidated Subsidiaries has any outstanding Debt which is, in the
aggregate, material to either Petroleum or Mesa and their respective
Consolidated Subsidiaries and not shown in the Updated Financial
Statements.
(h) Full Disclosure. No certificate, statement or other information delivered
herewith or heretofore by any Designated Officer of any Obligor to either
of Managing Agents, Co-Agents or any Lender in connection with the
negotiation of this Agreement or in connection with any transaction
contemplated hereby contains any untrue statement of a fact or omits to
state any fact known to Petroleum, Mesa, or any Obligor (other than
industry-wide risks normally associated with the types of businesses
conducted by Petroleum, Mesa or Obligors) necessary to make the statements
contained herein or therein not misleading as of the date made or deemed
made, except to the extent that any untrue statement or omission could not
reasonably be expected to have a Material Adverse Effect.
(i) Litigation. Except as disclosed in the Updated Financial Statements or in
the Disclosure Schedule: (1) there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or, to the
knowledge of Borrower, threatened, against any Obligor before any
Governmental Authority that could reasonably be expected to have a Material
Adverse Effect, and (2) there are no outstanding judgments, injunctions,
writs, rulings or orders by any such Governmental Authority against
Borrower, Petroleum or Mesa or any of their respective Consolidated
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
(j) Environmental Matters. The liabilities and costs of Borrower and its
Consolidated Subsidiaries related to compliance with applicable
Environmental Laws (as in effect on the date on which this representation
is made or deemed made) could not reasonably be expected to have a Material
Adverse Effect.
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(k) Title to Properties. Each Obligor has good and defensible title to all of
its material properties and assets, except any failure, defect or other
matter that could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(l) Investment Company Act. Neither Parent or Borrower nor any of their
respective Subsidiaries is an "investment company" or a "company
controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(m) Public Utility Holding Company Act. Neither Parent or Borrower nor any of
their respective Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(n) Principal Business Offices. As of the Effective Date, each Obligor's
principal place of business and chief executive office is located at the
place described in the Disclosure Schedule.
(o) Solvency. Each Obligor is solvent and will continue to be solvent after the
making and guarantying of the Loans and the issuance of the Letters of
Credit.
(p) Organization. As of the Effective Date, the organization chart of Parent,
Borrower and their respective Subsidiaries set forth on Exhibit I is true
and correct in all material respects. As of the Effective Date, Borrower or
a Restricted Subsidiary owns all of the issued and outstanding capital
stock of each Restricted Subsidiary. As of the Effective Date, no
Restricted Subsidiary has issued any securities convertible into shares of
its stock or any options (except as set forth in the Disclosure Schedule),
warrants or other rights to acquire such shares or securities convertible
into such shares and the outstanding capital stock and securities of each
Restricted Subsidiary is owned by Borrower or another Restricted Subsidiary
free and clear of all Liens, warrants, options or rights of others of any
kind whatsoever, except for Permitted Liens.
(q) Use of Proceeds; Margin Stock. Borrower and its Subsidiaries shall use (i)
the initial Revolving Loan Advance (1) to discharge all outstanding
obligations under the Existing Petroleum Credit Facility and (2) to
discharge all outstanding obligations under the Existing Mesa Credit
Facility, and (ii) all Revolving Loan Advances, Letters of Credit,
Competitive Bid Advances and Swing Line Advances for its and their
respective general corporate purposes. In no event shall the funds from any
Revolving Loan Advance, Swing Line Advance, Competitive Bid Advance or
Letter of Credit be used directly or indirectly by any Persons for
personal, family, household or agricultural purposes or for the purpose,
whether immediate, incidental or ultimate, of purchasing, acquiring or
carrying any "margin stock" or any "margin securities" (as such terms are
defined in the Margin Regulations) in violation of the Margin Regulations,
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or for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry "margin stock" or "margin
securities" in violation of the Margin Regulations, or to extend credit to
others directly or indirectly for the purpose of purchasing or carrying any
such margin stock or margin securities in violation of the Margin
Regulations. Borrower is not engaged principally, or as one of Borrower's
important activities, in the business of extending credit to others for the
purpose of purchasing or carrying such margin stock or margin securities.
Neither any Obligor nor any Person acting on behalf of any Obligor has
taken or will take any action which might cause this Agreement, the Notes,
or any Guaranty, any Loan Document or any Loan or Letter of Credit to
violate the Margin Regulations or to violate Section 7 of the Securities
Exchange Act of 1934, or any rule or regulation thereunder, in each case
as now or hereafter in effect.
(r) Liens Under the Security Instruments. Upon the execution and delivery of
the Security Instruments in accordance herewith, and where appropriate the
filing and recordation thereof with the appropriate filing or recording
officers in each of the necessary jurisdictions, the Liens granted and to
be granted by any Obligor to Lenders or the Trustee (as defined in any of
the Security Instruments) on behalf of Lenders in such Obligor's assets
pursuant to the Security Instruments will be validly created, perfected and
first priority Liens, subject only to Permitted Liens.
Section 4.2 Representation by Lenders. Each Lender hereby represents
that it will acquire its Notes for its own account in the ordinary course of its
commercial lending business; however, such Lender may sell or otherwise transfer
its Notes, any participation interest or other interest in its Notes, or any of
its other rights and obligations under the Loan Documents as permitted by
Section 8.8.
ARTICLE 5
COVENANTS OF BORROWER
Section 5.1 Affirmative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents, Co-Agents and each Lender to enter into
this Agreement and make the Loans to Borrower and to issue Letters of Credit,
unless Required Lenders shall have previously agreed otherwise in writing,
Borrower and, as applicable, Parent, severally for itself and their respective
Subsidiaries covenants and agrees that:
(a) Payment and Performance. Borrower will pay all amounts due from it under
the Loan Documents in accordance with the terms thereof and will observe,
perform and comply with every covenant, term and condition expressed in the
Loan Documents, and will cause each Obligor which is a Subsidiary of
Borrower to perform and comply with every covenant, term and condition
expressed in the Loan Documents and applicable to such Obligor.
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(b) Books, Financial Statements and Reports. Parent and Borrower will at all
times maintain full and materially accurate books of account and records.
Parent and Borrower will maintain and will cause their respective
Subsidiaries to maintain a standard system of accounting and will cause the
following statements and reports to be delivered to Managing Agents and
each Lender at Borrower's expense:
(1) As soon as available, and in any event within 120 days after the end
of each Fiscal Year, complete audited Consolidated financial
statements of Parent and its Subsidiaries and unaudited
consolidating balance sheets and statements of operations of Parent
and its Subsidiaries, prepared in reasonable detail in accordance
with GAAP; such audited statements to be accompanied by an opinion,
by KPMG Peat Marwick, or such other independent certified public
accountants of nationally recognized standing selected by Parent,
stating that such Consolidated financial statements have been so
prepared. Parent will, together with each set of such financial
statements delivered pursuant to this Section, furnish a certificate
in the form of Exhibit J signed by a Designated Officer of Borrower
stating that, to the best of his knowledge, (i) such financial
statements are accurate and complete, and (ii) no Default or Event
of Default exists at the end of such Fiscal Quarter or at the time
of such certificate or specifying the nature and period of existence
of any such Default or Event of Default. Such certificate shall
contain calculations showing compliance (or noncompliance) at the
end of such Fiscal Quarter with the requirements of Sections 5.3(a)
and (b).
(2) As soon as available, and in any event within 60 days after the end
of the first three Fiscal Quarters in each Fiscal Year, unaudited
Consolidated financial statements of Parent and its Subsidiaries and
unaudited consolidating balance sheet and statements of operations
of Parent and its Subsidiaries as of the end of such Fiscal Quarter,
all in reasonable detail and prepared in accordance with GAAP,
subject to changes resulting from year-end adjustments. Parent will,
together with each set of such financial statements delivered
pursuant to this Section, furnish a certificate in the form of
Exhibit J signed by a Designated Officer of Borrower stating that,
to the best of his knowledge, (i) such financial statements are
accurate and complete, and (ii) no Default or Event of Default
exists at the end of such Fiscal Quarter or at the time of such
certificate or specifying the nature and period of existence of any
such Default or Event of Default. Such certificate shall contain
calculations showing compliance (or noncompliance) at the end of
such Fiscal Quarter with the requirements of Sections 5.3(a) and
(b).
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(3) Promptly after transmittal or filing, copies of all financial
statements, reports, notices and proxy statements sent by Parent to
its stockholders and all registration statements, periodic reports
and other statements and schedules filed by Parent or any of its
its Subsidiaries with any securities exchange, the Securities and
Exchange Commission or any similar Governmental Authority.
(c) Other Information and Inspections. Parent and Borrower will furnish to
Managing Agents and each Lender any information which Administrative Agent,
on behalf of any Lender, may from time to time reasonably request in
writing concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Parent's, Borrower's and its
Subsidiaries' businesses and operations. Parent and Borrower will permit
and will cause each of their respective Subsidiaries to permit
representatives of Agents and Lenders (including independent accountants,
agents and attorneys), at the expense and risk of the applicable Lender, to
visit and inspect, during normal business hours and upon reasonable notice
any of Parent's or Borrower's or such Subsidiaries' property, including its
books of account, other books and records, and any facilities or other
business assets, and to make extra copies therefrom and photocopies and
photographs thereof, and to write down and record any information such
representatives obtain, and Parent and Borrower shall permit and will cause
each of their respective Subsidiaries to permit Agents and the Lenders or
their representatives, to investigate and verify the accuracy of the
information furnished to Administrative Agent or any Lender in connection
with the Loan Documents and to discuss all such matters with its officers,
employees and representatives; provided, however, that any such visit,
inspection, investigation or verification or discussion with respect to
Parent or Borrower taking place at a time when Borrower has been notified
in writing by Administrative Agent of the existence of a Default or an
Event of Default applicable to Borrower which has occurred and is
continuing shall be at the cost and expense of Borrower, and that neither
Managing Agents, Co-Agents nor Lenders shall have any obligation to pay any
costs or expenses of Parent or Borrower or any other Obligor or any of
their officers, employees or representatives in respect thereof
irrespective of the existence of any Default or Event of Default.
(d) Notice of Material Events. Borrower will promptly upon its awareness
thereof notify Administrative Agent and each Lender (1) of the occurrence
of any Default or any other event, which has or may reasonably be expected
to have, a Material Adverse Effect, (2) of the acceleration of the maturity
of any Debt owed by any Obligor or any default by any Obligor under any
instrument evidencing or governing Debt, if such acceleration or default
has a Material Adverse Effect, (3) of the occurrence of any Termination
Event which may reasonably be expected to have a Material Adverse Effect,
and (4) of the filing of any litigation or proceeding in which any Obligor
is a party or of any material developments in existing litigation in which
any Obligor is a party in which an adverse decision may reasonably be
expected to have a Material Adverse Effect.
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(e) Maintenance of Existence and Qualifications. Parent and Borrower will, and
will cause each Restricted Subsidiary to, maintain and preserve its
existence as a corporation or partnership, as the case may be. Parent and
Borrower will, and will cause each Restricted Subsidiary to, maintain and
preserve its good standing and its rights and franchises in full force and
effect and qualify to do business as a foreign corporation in all states or
jurisdictions where required by applicable law, except for any failure to
maintain, preserve and qualify that could not reasonably be expected to
have a Material Adverse Effect. Nothing in this Section shall prohibit (i)
a merger or consolidation permitted by Section 5.2(c) or (ii) a termination
of such existence, good standing, rights or franchises of any Restricted
Subsidiary if Parent or Borrower determines in good faith that such
termination is in the best interest of the Parent and Borrower and could
not reasonably be expected to have a Material Adverse Effect.
(f) Payment of Taxes and Trade Debt. Borrower will, and will cause each of its
Subsidiaries to, except for any failure or other matter that could not
reasonably be expected to have a Material Adverse Effect, (1) timely file
all required tax returns, (2) timely pay all taxes, assessments, and other
governmental charges or levies imposed upon it or upon its income, profits
or property, and (3) timely pay all trade debt. Borrower and its respective
Subsidiaries may, however, delay paying or discharging any such taxes,
assessments, charges, debts or levies so long as the validity thereof is
contested in good faith by appropriate proceedings and adequate reserves
therefor in accordance with GAAP have been set aside and reflected among
the books and records of Borrower and its Subsidiaries.
(g) Insurance. Borrower will, and will cause each of its Subsidiaries to, at
all times maintain insurance in such amounts and covering such risks as are
in accordance with normal industry practice for companies engaged in
similar businesses and owning similar properties in the same general area
in which Borrower and its Subsidiaries conduct business, which insurance
(other than prudent self-insurance programs) shall be by financially sound
and reputable insurers.
(h) Payment of Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, Borrower will promptly pay all reasonable costs
and expenses (including reasonable attorneys' fees) incurred by or on
behalf of (1) the Documentation Agents in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and any
amendment, modification or restatement thereof, and any and all consents,
waivers or other documents or instruments, including commitment letters,
term sheets and any memorandum relating thereto (provided that Borrower
shall be obligated to pay only the attorneys' fees of a common counsel for
the Documentation Agents, Mayer, Brown & Platt), (2) Agents in connection
with due diligence, syndication, travel and advertising related to this
Agreement and the transactions contemplated thereby, and (3) Administrative
Agent or any Lender in connection with enforcement of the Loan Documents or
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the defense of Administrative Agent's or any Lender's exercise of its
rights thereunder. The selection of Managing Agents' counsel and
consultants in connection with the matters described in the preceding
sentence shall be subject to the approval of Borrower, which approval shall
not be unreasonably withheld. Attorneys' fees reimbursed by Borrower for
any amendment, modification or restatement of any Loan Document shall be
estimated and approved by Borrower prior to incurrence, such approval not
to be unreasonably withheld. Attorneys' fees reimbursed by Borrower in
connection with the enforcement of the Loan Documents or the defense of
Administrative Agent's or any Lenders' exercise of its rights hereunder
shall be for a single law firm per country (unless conflicts (including
conflicts between Managing Agents and the other Lenders as determined in
the reasonable discretion of the Required Lenders) otherwise prohibit the
engagement of a single law firm).
(i) Compliance with Agreements and Law. Borrower and Parent will, and will
cause each of their respective Subsidiaries to (1) perform all material
obligations it is required to perform under the terms of each material
agreement, contract or other instrument or obligation to which it is a
party or by which it or any of its material properties is bound, except for
any non-performance that will not have or reasonably be expected to have a
Material Adverse Effect; and (2) conduct its business and affairs in
material compliance with all laws, regulations, and orders applicable
thereto (including without limitation Environmental Laws) except for any
non-compliance that could not reasonably be expected to have a Material
Adverse Effect.
(j) Maintenance of Business. 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.
(k) Operations. Borrower will, and will cause each Restricted Subsidiary to,
cause all material properties to be regularly operated, maintained and
developed in a good and workmanlike manner, as would a prudent operator and
in accordance with all applicable federal, state and local laws, rules and
regulations, except for any failure to so operate, maintain and develop
that could not reasonably be expected to have a Material Adverse Effect.
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Section 5.2 Negative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower and to issue Letters of Credit, unless
Required Lenders shall have previously agreed otherwise in writing, Borrower
and, as applicable, Parent, severally for itself and their respective
Subsidiaries covenants and agrees that:
(a) Limitation on Debt. Parent and Borrower will not, and will not permit any
Restricted Subsidiary to, in any manner owe or be liable for Debt except:
(1) the Obligations;
(2) Debt pursuant to the 364 Day Facility;
(3) unsecured Debt among Obligors;
(4) Debt arising under capital leases which does not in the aggregate
for Parent, Borrower and all Restricted Subsidiaries exceed
$20,000,000 at any one time outstanding;
(5) Debt, other than Debt otherwise permitted by another subparagraph of
this Section 5.2(a), which, at the time incurred, is at prevailing
market rates of interest and contains covenants and conditions and
events of default no more onerous to Obligors than the terms of this
Agreement; provided, that no Default or Event of Default will result
from the incurrence of such Debt and be continuing;
(6) guaranties of Debt which is the primary obligation of an Obligor and
permitted under this Section 5.2(a); and
(7) Debt arising (whether by contract or as a result of statutory
liability of a general partner) by virtue of any Obligor being a
general partner of a general or limited partnership pursuant to
agreements in effect on the Effective Date not in excess of the
aggregate amounts permitted to be incurred pursuant to such
agreements on the Effective Date for all such Debt and other such
Debt otherwise permitted pursuant to the other subparagraphs of this
Section 5.2(a);
(8) Debt existing on the Effective Date which is disclosed (i) in the
Updated Financial Statements or (ii) in the Disclosure Schedule and
any extensions, renewals or replacements thereof upon terms no more
onerous to Borrower than the terms of this Agreement or the terms of
the instruments evidencing such Debt as of the date of this
Agreement;
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(b) Negative Pledge. Borrower and Parent will not, and will not permit any of
their respective Restricted Subsidiaries to, create, assume or permit to
exist any Lien upon any of their respective material property, except
Permitted Liens.
(c) Limitation on Mergers. Except as expressly provided in this paragraph,
Borrower and Parent will not, and will not permit any of their Restricted
Subsidiaries to, merge or consolidate with or into any other business
entity, except (1) Parent or Borrower may be party to a merger or
consolidation so long as the surviving entity is Parent or Borrower and no
Default will exist and the Obligations do not exceed the Facility Amount
after giving effect thereto and (2) any Restricted Subsidiary may be a
party to any merger or consolidation so long as the surviving entity is a
Restricted Subsidiary and any Guaranty of, or Pledge Agreement by, such
Restricted Subsidiary continues as to such surviving entity, no Default
will exist, and the Obligations do not exceed the Facility Amount after
giving effect thereto.
(d) Limitation on Disposition of Capital Stock of Restricted Subsidiaries.
Borrower will not, and will not permit any Restricted Subsidiary to, sell,
transfer or otherwise dispose of capital stock of any Restricted
Subsidiary, except that Borrower and any Restricted Subsidiary may sell,
issue, transfer or otherwise dispose of the capital stock of any Restricted
Subsidiary to Parent, Borrower or to another Restricted Subsidiary.
(e) Limitation on Restricted Payments. Parent and Borrower will not, and will
not permit any Restricted Subsidiary to, make Restricted Payments in excess
of $50,000,000 in the aggregate for the duration of this Agreement for all
such Restricted Payments; provided, however, that in the event that any
Unrestricted Subsidiary of Borrower is determined to be a Restricted
Subsidiary of Borrower for purposes of this Agreement, then for purposes of
determining compliance with this Section, all Restricted Payments made to
such Unrestricted Subsidiary shall be deducted from the aggregate total of
all Restricted Payments made for the duration of this Agreement. No
Restricted Payment may be made (1) if the Obligations shall exceed the
Facility Amount or (2) if any Default or Event of Default shall have
occurred and be continuing, or (3) if as a result thereof, any Default or
Event of Default shall have occurred and be continuing.
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(f) Transactions with Affiliates. Parent and Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any material
transaction with any of Borrower's Affiliates on terms which are less
favorable than those which would have been obtainable at the time in
arm's-length dealing with Persons other than such Affiliates, provided,
however that such restriction shall not apply to transactions (i) among
Borrower and its Restricted Subsidiaries and (ii) among Restricted
Subsidiaries.
(g) Limitations on Restricted Subsidiaries. Parent and Borrower will not permit
any Restricted Subsidiary to become subject to covenants which:
(1) restrict dividends or dividend capacity;
(2) restrict loans and advances to Borrower;
(3) restrict the ability to make tax payments or management payments to
Borrower; or
(4) restrict the capitalization structure of any Restricted Subsidiary.
(h) Limitation on Sale/Leasebacks. Obligors will not enter into any
arrangement, directly or indirectly, with any Person whereby any Obligor
shall sell or transfer any material asset, and whereby any Obligor shall
then or immediately thereafter rent or lease as lessee such asset or any
part thereof.
(i) Conversion of Restricted Subsidiary to Unrestricted Subsidiary. Parent and
Borrower may convert any Restricted Subsidiary to an Unrestricted
Subsidiary by giving Administrative Agent at least five (5) Business Days'
notice of such conversion in the form of Exhibit K-1 attached hereto;
provided that (1) no Restricted Subsidiary shall be so converted so long as
it owns or will thereafter own, directly or indirectly, any interest in any
material asset or in another Restricted Subsidiary unless the value of such
material assets, together with the aggregate of all Restricted Payments
made and the value of any other material assets determined as aforesaid of
any Restricted Subsidiaries converted to Unrestricted Subsidiaries do not
exceed in the aggregate the limitation on Restricted Payments contained in
Section 5.2(e) hereof, and (2) no such conversion shall be made if after
giving effect to such conversion, any Default would exist. Upon any such
conversion of a Restricted Subsidiary to an Unrestricted Subsidiary, such
Subsidiary shall be released from its obligations under its Guaranty, and
Managing Agents and Lenders shall execute and deliver a release
substantially in the form of Exhibit K-2 hereto.
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(j) Margin Securities. Proceeds of the Loans will not be used to purchase or
carry Margin Stock except in compliance with the Margin Regulations.
Section 5.3 Financial Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower and to issue Letters of Credit, unless
Required Lenders shall have previously agreed otherwise in writing, Borrower
and, as applicable, Parent, severally for itself and their respective
Subsidiaries covenants and agrees that:
(a) EBITDAX to Consolidated Interest Expense Ratio. The ratio of Parent's
"EBITDAX" to "Consolidated Interest Expense" for the last four rolling
Fiscal Quarters will not be less than 3.75 to 1.0; provided, however, that
the EBITDAX to Consolidated Interest Expense Ratio shall first be
calculated on December 31, 1997; provided further that for the periods for
calculation ending on or before September 30, 1998, each reference to "for
the last four rolling Fiscal Quarters" shall be deemed to be a reference to
the period from October 1, 1997 through the date of such calculation. As
used in this paragraph, the term "Consolidated Interest Expense" means for
any period, total interest expense, whether paid or accrued, of Parent,
Borrower and their respective Subsidiaries on a Consolidated basis,
including, without limitation, all commissions, discounts and other fees
and charges owed with respect to Letters of Credit. As used in this
paragraph, the term "EBITDAX" means for any period the sum of the amounts
for such period of Consolidated net income, Consolidated Interest Expense,
depreciation expense, depletion expense, amortization expense, federal and
state income taxes, exploration and abandonment expense and other non-cash
charges and expenses, all as determined on a Consolidated basis for Parent,
Borrower and their respective Subsidiaries.
(b) Consolidated Total Funded Debt to Total Capitalization. Parent's
Consolidated Total Funded Debt to Total Capitalization will not, as of the
last day of any Fiscal Quarter, be greater than 60%.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default. Each of the following events
constitutes an "Event of Default" under this Agreement:
(a) Borrower shall default on the payment when due of any principal on any of
its Loans or any of its Notes or any amount in respect of any LC
Obligation;
(b) Borrower fails to pay any of its Obligations (other than principal or any
amount in respect of its LC Obligations) when due and payable, whether
interest in respect of any Loan or any fee or any other amounts payable
under any of the Loan Documents and such failure shall continue unremedied
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for a period of five (5) Business Days; provided, however, that any such
Default shall not constitute an Event of Default if subsequently available
information indicates that a payment made when due was insufficient because
of a good faith error in calculation so long as Borrower shall cure such
deficiency within five (5) Business Days after Borrower becomes aware of
such deficiency;
(c) any Obligor fails to duly observe, perform or comply with any covenant,
agreement, condition or provision set forth in Section 5.1(d) or 5.2 of
this Agreement;
(d) any Obligor fails (other than as referred to in subsections (a), (b) and
(c) above) to duly observe, perform or comply with any covenant, agreement,
condition or provision of any Loan Document applicable to it (even if all
or part of such agreement or covenant is void or unenforceable), and such
failure is not remedied within thirty (30) Business Days after written
notice thereof shall have been sent to Borrower by Administrative Agent or
any Lender;
(e) any representation or warranty previously, presently or hereafter made in
writing or deemed made by or on behalf of any Obligor in connection with
any Loan Document shall have been false or incorrect in any material
respect on any date on or as of which 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;
(f) any Obligor (1) fails to pay when due Debt in excess of $20,000,000 or (2)
breaches or defaults in the performance of any agreement or instrument by
which any such Debt in excess of $20,000,000 is issued, evidenced,
governed, or secured, and any such failure, breach or default continues
beyond any applicable period of grace provided therefor;
(g) either (1) any "accumulated funding deficiency" (as defined in Section
412(a) of the Internal Revenue Code of 1986, as amended) in excess of
$10,000,000 exists with respect to any ERISA Plan, whether or not waived by
the Secretary of the Treasury or his delegate, or (2) any Termination Event
which has a Material Adverse Effect occurs with respect to any ERISA Plan
and the then current value of such ERISA Plan's benefit liabilities exceeds
the then current value of such ERISA Plan's assets available for the
payment of such benefit liabilities by more than $10,000,000 (or in the
case of a Termination Event involving the withdrawal of a substantial
employer, the withdrawing employer's proportionate share of such excess
exceeds such amount);
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(h) any Obligor:
(1) suffers the commencement of any involuntary bankruptcy,
reorganization, debt arrangement, winding up, dissolution, official
management or administration, or other case or proceeding under any
bankruptcy or insolvency law or the entry against it of a judgment,
decree or order for relief by a court of competent jurisdiction in
such a case or proceeding, which in either case remains undismissed
for a period of sixty (60) days; provided that each Obligor hereby
expressly authorizes each Agent and each Lender to appear in any
court proceeding during such sixty (60) day period to preserve,
protect and defend their rights under the Loan Documents;
(2) commences a voluntary case under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect, including,
without limitation, the United States Bankruptcy Code or the
Corporations Law of Australia, as from time to time amended; or
applies for or consents or acquiesces to the entry of an order for
relief in an involuntary case under any such law, or becomes
insolvent or makes a general assignment for the benefit of
creditors, or fails generally to pay (or admits in writing its
inability to pay) its debts as such debts become due, or takes
corporate or other action to authorize any of the foregoing;
(3) suffers the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of all or a substantial part of
its assets in a proceeding brought against or initiated by it, and
such appointment is neither made ineffective nor discharged within
sixty (60) days after such event or such appointment or taking
possession is at any time consented to, requested by, or acquiesced
to by such Obligor;
(4) suffers the entry against it of a final judgment for the payment of
money in excess of $20,000,000 (not covered by insurance
satisfactory to Administrative Agent in its discretion), unless the
same is discharged within thirty (30) days after the date of entry
thereof or an appeal or appropriate proceeding for review thereof is
taken within such period and a stay of execution pending such appeal
is obtained and continues; or
(5) suffers a writ or warrant of attachment or any similar process to be
issued by any court against all or any substantial part of its
property, and such writ or warrant of attachment or any similar
process is not stayed or released within thirty (30) days after the
entry or levy thereof or after any stay is vacated or set aside;
(i) (a) any person (other than Parent, Borrower, a Restricted Subsidiary of
Borrower or any employee benefit plan of Borrower or any of its
Subsidiaries) or group (as such term is used in Section 13(d) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended) shall acquire, directly
or indirectly, beneficial ownership of an aggregate of 35% or more of the
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issued and outstanding voting stock of Parent or (b) during any period of
two consecutive years ending on or after the Effective Date, as determined
as of the last day of each calendar quarter after the Effective Date, the
individuals (the "Incumbent Directors") who at the beginning of such period
constituted the Board of Directors of Parent (other than additions thereto
or removals therefrom from time to time thereafter approved by a vote of at
least two-thirds of such Incumbent Directors) shall cease for any reason to
constitute 50% or more of the Board of Directors of Parent; provided,
however, that for each determination period ending on or before September
30, 1999, each determination period shall be deemed to be a period from the
Effective Date through the date of such calculation;
(j) any of the Loan Documents are determined to be invalid or unenforceable in
any material respect;
(k) (1) any Restricted Subsidiary other than any Foreign Restricted Subsidiary,
and any of their respective Restricted Subsidiaries fails to execute and
deliver to Collateral Agent a Guaranty of the type referred to in clause
(i) of the definition of "Guaranty", within 30 days of becoming a
Restricted Subsidiary;
(2) unless and to the extent that any Foreign Restricted Subsidiary or
any other Restricted Subsidiary is prohibited from, or subject to
adverse tax consequences as a result of, guaranteeing the
Obligations under this Agreement (a) under Section 956 of the
Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time ("ss.956") (b) pursuant to contractual
restrictions in existence prior to the Effective Date or (c) as a
matter of corporate law, any Foreign Restricted Subsidiary or any
other Restricted Subsidiary fails to execute and deliver to
Collateral Agent, a Guaranty of the type referred to in clause (i)
of the definition of "Guaranty" together with in the case of any
Foreign Restricted Subsidiary, a notice in relation to such Guaranty
or, in the case of any Restricted Subsidiary subject to the
Corporation Laws of Australia, a certificate under Section 206(6) of
the Corporations Laws of Australia in relation to such Guaranty, in
each case (1) as soon as practicable following the termination or
inapplicability of the contractual restrictions, corporate law
prohibitions and adverse tax consequences referred to in this
paragraph or (2) if no such contractual restrictions, corporate law
prohibitions and adverse tax consequences apply, as soon as
practicable following a determination that such contractual
restrictions, corporate law prohibitions and adverse tax
consequences do not apply;
(l) unless and to the extent that (a) any such pledge or mortgage would result
in (i) substantial stamp or similar taxes or (ii) adverse tax consequences
pursuant to ss.956, (b) any such pledge or mortgage is prohibited either
(i) pursuant to contractual restrictions in existence prior to the
Effective Date or (ii) as a matter of corporate law, or (c) a Guaranty of
the type referred to in clause (i) of the definition of "Guaranty" has been
executed and delivered by the Restricted Subsidiary the capital stock or
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shares of which would otherwise be subject to pledge or mortgage under this
paragraph, Borrower, or any Subsidiary of Borrower, owning capital stock or
shares of any Restricted Subsidiary of any Foreign Restricted Subsidiary,
fails (x) to execute and deliver to Collateral Agent the Pledge Agreements,
together with all issued and outstanding stock or shares of such Restricted
Subsidiary of such Foreign Restricted Subsidiary and stock powers or share
transfers executed in blank, together with a either a certificate under
Section 206 (6) of the Corporations Law of Australia or a notice of the
type described in Section 6.1(k)(2) hereof, in each case in relation to
such Pledge Agreement, as the case may be and if applicable, as soon as
practicable after the termination or inapplicability of such contractual
restrictions and corporate law prohibitions and adverse tax consequences
referred to in this paragraph and (y) to repay all Obligations and other
amounts and to cause all outstanding Letters of Credit to be terminated and
the originals thereof to be returned to the Issuing Bank as soon as
practical after the termination or inapplicability of such contractual
restrictions and corporate law prohibitions and adverse tax consequences
referred to in this paragraph; or
(m) any Obligor, to the extent applicable, fails, (x) promptly upon the
reasonable request of the Managing Agents at any time or from time to time
prior to the applicable Stock Pledge Release Date, as the case may be, (1)
to execute, acknowledge or deliver, or to cause to be executed,
acknowledged or delivered, or to register, record or file, or to cause to
be registered, recorded or filed, any document or instrument necessary or
advisable or as Required Lenders may from time to time reasonably deem to
be necessary or advisable in connection with the grant, creation,
preservation, perfection or maintenance, as first, prior and perfected
Liens, the Liens created, or intended to be created, by the applicable
Security Instruments, subject only to Permitted Liens or (2) to perform or
to continue to perform at all times and from time to time all actions
necessary or advisable or reasonably deemed to be necessary or advisable by
the Required Lenders in connection with such creation, preservation,
perfection and maintenance; and (y) to repay all Obligations and other
amounts and to cause all outstanding Letters of Credit to be terminated and
the originals thereof to be returned to the Issuing Bank as soon as
practical after receipt of the reasonable request of Managing Agents
pursuant to the foregoing clause (x);
provided, however, that the foregoing events which affect only Restricted
Subsidiaries that (a) are not guarantors of the Obligations, and (b) are
immaterial (as determined by the Managing Agents), shall not constitute "Events
of Default" under this Agreement. It is agreed by the parties hereto that so
long as Borrower or any Restricted Subsidiary has made reasonable efforts under
the circumstances to obtain the approvals required by Section 205(10) of the
Corporations Law of Australia (if applicable), the foregoing paragraphs (k)(2),
(l) and (m) shall not require any Restricted Subsidiaries to provide any pledge
or guaranty prohibited by corporate law unless the requirements of such Section
205(10) of the Corporations Law of Australia, to the extent applicable, have
been satisfied.
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Upon the occurrence of an Event of Default described in Section 6.1(h)(1), (2)
or (3) with respect to Borrower, the Commitments shall automatically terminate
and all of the Obligations shall thereupon be immediately due and payable,
without demand, presentment, notice of demand or of dishonor and nonpayment,
protest, notice of protest, notice of intention to accelerate, declaration or
notice of acceleration, or any other notice or declaration of any kind, all of
which are hereby expressly waived by Borrower and each Obligor who at any time
ratifies or approves this Agreement. During the continuance of any other Event
of Default, Administrative Agent at any time and from time to time upon written
instructions from Required Lenders (which, for purposes of this sentence only,
shall be determined giving effect to each Lender's outstanding Swing Line
Advances and Competitive Bid Advances) shall, by notice to Borrower (but
otherwise without notice to any other Obligor), declare the Commitments to be
terminated, and/or declare any or all of the Obligations immediately due and
payable, and all such Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by Borrower and each Obligor who
at any time ratifies, approves or guaranties this Agreement and/or require
Borrower to deposit Cash Collateral with Administrative Agent in an amount
determined in accordance with paragraph (c) of Section 2.14.
Section 6.2 Remedies. If any Default shall occur and be continuing,
each Lender or Administrative Agent on behalf of Lenders may protect and enforce
its rights under the Loan Documents by any appropriate proceedings, including,
without limitation, proceedings for specific performance of any covenant or
agreement contained in any Loan Document, and each Lender may enforce the
payment of any Obligations due it or enforce any other legal or equitable rights
which it may have. Additionally, under such circumstances, the Required Lenders
or, at the direction of Required Lenders, the Trustee (or Collateral Agent) may
proceed to protect the Lenders' rights under the Security Instruments. All
rights, remedies and powers conferred upon Administrative Agent and Lenders
under the Loan Documents are cumulative and not exclusive of any other rights,
remedies or powers available under the Loan Documents or at law or in equity.
Section 6.3 Annulment of Acceleration. If a declaration of
acceleration is made pursuant to this Article 6, then Required Lenders, by
written notice to Borrower and Administrative Agent, may collectively rescind
and annul such declaration in its entirety; provided, that at the time such
declaration is annulled and rescinded: (a) no judgment or decree has been
entered for the payment of any moneys due pursuant to any Note or this
Agreement; (b) all arrears of interest upon all the Notes and all other sums
payable under the Notes and this Agreement (other than principal amounts which
may have become due as a result of acceleration), including interest upon
overdue interest, to the extent payment thereof is lawful, shall have been duly
paid; and (c) each and every other Event of Default which has theretofore
occurred shall have been waived pursuant to Section 8.1 or otherwise made good
or cured.
Section 6.4 Indemnity. Borrower hereby indemnifies each Agent and
each Lender, from and against any and all liabilities, obligations, claims,
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losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this Section collectively called
"liabilities and costs") which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against such Agent or such Lender as a
result of, arising out of, relating to or in connection with:
(a) the Loan Documents to which Borrower or one or more of its Subsidiaries is
a party or the rights provided therein (including the enforcement or
defense thereof);
(b) the direct or indirect application or proposed application of the proceeds
of any Loan or Letter of Credit to or for Borrower or any of its
Subsidiaries;
(c) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan or Letter of Credit to or for
Borrower or any of its Subsidiaries;
(d) any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter (including enforcement) relating
to any Environmental Law or the condition of any facility or property
owned, leased or operated by Borrower or any of its Subsidiaries; or
(e) the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases from, any facility owned or
operated by Borrower or any of its Subsidiaries of any hazardous or toxic
substance (including any liabilities and costs under any Environmental
Law), regardless of whether caused by, or within the control of, Borrower
or any of its Subsidiaries; or any misrepresentation, inaccuracy or any
breach in or of Section 4.1(j) or Section 5.1(i) by or with respect to
Borrower or any of its Subsidiaries.
The foregoing indemnification shall not apply to the extent such liabilities and
costs are determined to have resulted or been caused, in whole or in part, by
the gross negligence or willful misconduct on the part of such Agent or Lender.
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND EXCEPT AS PROVIDED BY THE IMMEDIATELY
PRECEDING SENTENCE. In the event that any claim or demand for which Borrower
would be liable to any Agent or any Lender under this Section is asserted
against or sought to be collected from any Agent or any Lender by a third party,
Agent or such Lender shall promptly notify Borrower of such claim or demand.
Borrower shall have the lesser of: (i) thirty (30) Business Days from receipt of
the above notice; or (ii) three (3) Business Days prior to the expiration of any
period after which a default judgment may be entered against such Agent or
Lender (the "Notice Period") to notify such Agent and/or Lender whether or not
Borrower desires, at the sole cost and expense of Borrower, to defend such Agent
and/or Lender against such claim or demand. In the event that Borrower notifies
such Agent and/or Lender within the Notice Period, that it desires to defend
such Agent and/or Lender against such claim or demand, Borrower shall have the
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right to settle or otherwise dispose of such claim or demand (other than claims
alleging criminal violations) on such terms as Borrower, with the consent of the
indemnified party (which consent shall not be unreasonably withheld) shall deem
appropriate; provided that:
(w) counsel designated by Borrower is reasonably acceptable to the
Managing Agents and the affected Lender;
(x) Borrower will have acknowledged in writing that this Section will
cover any liabilities and costs in any such claim or demand;
(y) in the sole determination of the Managing Agents and the affected
Lender, Borrower will have the financial ability to pay such
liabilities and costs; and
(z) Borrower shall thereafter consult with the Managing Agents and the
affected Lender with respect to such claim or demand; and
provided further, that each of Agents and the affected Lender shall have the
right at all times to participate in any proceeding, at their sole cost and
expense, subject, however, to Borrower's right to control the defense of all
proceedings concerning such claim or demand.
In the event that Borrower fails to give such Agent and/or Lender such notice,
such Agent and/or Lender may defend against such claim or demand; provided,
however, that Borrower's obligation to reimburse such Agent and/or Lender shall
be limited to a single law firm of such Agent and/or Lender (unless Borrower
otherwise consents, which consent shall not be unreasonably withheld); provided
further, that Borrower shall have the right at all times to participate in any
such proceeding, at its sole cost and expense, subject, however, to the right of
such Agent and/or Lender to control the defense of all proceedings concerning
such claim or demand. As used in this Section, the terms "Agent" and "Lender"
shall refer not only to the Persons designated as such in Section 1.1 but also
to each director, officer, agent, attorney, employee and representative of such
Person.
ARTICLE 7
AGENTS
Section 7.1 Appointment and Authority. NationsBank of Texas, N.A. is
hereby appointed Administrative Agent hereunder and under each other Loan
Document, CIBC Inc. is hereby appointed Documentation Agent hereunder and under
each other Loan Document, Morgan Guaranty Trust Company of New York is hereby
appointed Documentation Agent hereunder and under each other Loan Document and
The Chase Manhattan Bank is hereby appointed Syndication Agent hereunder and
under each other Loan Document, each Co-Agent is hereby appointed Co-Agent
hereunder and under each other Loan Document, and each of the Lenders hereby
authorizes each such Agent to act as the agent of such Lender hereunder and each
other Loan Document to the extent provided herein or therein. In addition, each
Lender hereby irrevocably authorizes Administrative Agent, and Administrative
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Agent hereby undertakes, to receive payments of principal, interest due
hereunder as specified herein and to act as Collateral Agent under the Security
Instruments. In addition, each Lender hereby authorizes each Agent, and each
Agent hereby undertakes to take all other actions and to exercise such powers
under the Loan Documents as are specifically delegated to such Agent by the
terms hereof or thereof, together with all other powers reasonably incidental
thereto. No Co-Agent has any duties or responsibilities whatsoever as Co-Agent
(as opposed to its capacity as Lender) under or in connection with this
Agreement or any of the Loan Documents. The relationship of each Agent to Lender
is only that of one commercial bank acting as administrative agent for others,
and nothing in the Loan Documents shall be construed to constitute any Agent a
trustee or other fiduciary for any holder of any of the Notes or of any
participation therein or in the LC Obligations, nor to impose on any Agent
duties and obligations other than those expressly provided for in the Loan
Documents. None of the Agents shall have implied duties to Lenders, or any
obligations to Lenders to take any action under the Loan Documents, except any
action by an Agent specifically provided by the Loan Documents to be taken by
such Agent. With respect to any matters not expressly provided for in the Loan
Documents and any matters which the Loan Documents place within the discretion
of any Agent, such Agent shall not be required to exercise any discretion or
take any action, and each such Agent may request instructions from Lenders with
respect to any such matter, in which case such Agent shall be required to act or
to refrain from acting (and shall be fully protected and free from liability to
any and all Lenders and Agents in so acting or refraining from acting) upon the
instructions of Required Lenders (including itself); provided, however, that no
Agent shall be required to take any action which exposes it to a risk of
personal liability that it considers unreasonable or which is contrary to the
Loan Documents or to applicable law unless indemnified to its satisfaction by
Lenders or Borrower. Upon receipt by Administrative Agent from Borrower of any
communication calling for action on the part of Lenders or upon notice from any
Lender to Administrative Agent of any Default or Event of Default,
Administrative Agent shall promptly notify each Lender thereof.
Section 7.2 Agent's Reliance. No Agent or any of their respective
directors, officers, agents, attorneys, or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
the Loan Documents, including their negligence of any kind, except that each
shall be liable for its own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until Administrative
Agent receives written notice of the assignment or transfer thereof in
accordance with this Agreement, signed by such payee and in form
satisfactory to Administrative Agent;
(b) may consult with legal counsel (including counsel for Borrower),
independent public accountants and other experts selected by such Agent and
shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
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(c) makes no warranty or representation to any Lender or to any other Agent and
shall not be responsible to any Lender or Agent for any statements,
warranties or representations made in or in connection with the Loan
Documents by any other Person;
(d) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Loan
Documents on the part of any Obligor or to inspect the property (including
the books and records) of any Obligor;
(e) shall not be responsible to any Lender or to any other Agent for the due
execution (other than its own due execution and delivery), legality,
validity, enforceability, genuineness, existence, sufficiency or value of
any Loan Document, the Credit Facility Agreement or any instrument or
document furnished in connection herewith, or any collateral;
(f) may rely upon the representations and warranties of any Obligor and the
Lenders in exercising its powers hereunder;
(g) shall not be responsible for the satisfaction of any condition specified in
Article 3, except receipt by an Agent of items required to be delivered to
such Agent; and
(h) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(including any telecopy, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper Person or Persons.
Section 7.3 Lenders' Credit Decisions. Each Lender acknowledges that
it has, independently and without reliance upon any Agent or any other Lender,
made its own analysis of Obligors and the transactions contemplated hereby and
its own independent decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents.
Section 7.4 Indemnification. Each Lender agrees to indemnify each
Agent (to the extent not reimbursed by Borrower within ten (10) days after
demand) from and against such Lender's Percentage Share of any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (including reasonable fees of
attorneys, accountants, experts, and advisors) of any kind or nature whatsoever
(in this Section collectively called "liabilities and costs") which to any
extent (in whole or in part) may be imposed on, incurred by, or asserted against
such Agent growing out of, resulting from or in any other way associated with
any of the Loan Documents and the transactions and events (including, without
limitation, the enforcement thereof) at any time associated therewith or
contemplated therein. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT
SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR
IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY AGENT, PROVIDED
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ONLY THAT NO LENDER SHALL BE OBLIGATED UNDER THIS SECTION TO INDEMNIFY AN AGENT
FOR THAT PORTION, IF ANY, OF ANY LIABILITIES AND COSTS WHICH IS THE SOLE RESULT
OF SUCH AGENT'S OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS
DETERMINED IN A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. Cumulative
of the foregoing, each Lender agrees to reimburse Administrative Agent, each
Documentation Agent and Syndication Agent promptly upon demand for such Lender's
Percentage Share of any costs and expenses to be paid to Administrative Agent,
the Documentation Agent or the Syndication Agent by Borrower under Section
5.1(h) to the extent that Administrative Agent, the Documentation Agent or the
Syndication Agent is not timely reimbursed for such expenses by Borrower as
provided in such section. As used in this Section the term "Agents" shall refer
not only to the Person(s) designated as such in Section 1.1 but also to each
director, officer, agent, attorney, employee and representative of such
Person(s).
Section 7.5 Rights as Lender. In their respective capacity as a
Lender, each Agent shall have the same rights and obligations as any Lender and
may exercise such rights as though it were not an Agent. Each Agent may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with any of Obligors or their Affiliates, all as
if it were not an Agent hereunder and without any duty to account therefor to
any other Lender.
Section 7.6 Sharing of Set-Offs and Other Payments. Each Agent and
Lender agrees that if it shall, whether through the exercise of rights under
security documents or rights of banker's lien, setoff, or counterclaim against
any Obligor or otherwise, obtain payment of a portion of the aggregate
Obligations owed to it (other than in respect of its Swing Line Advances and its
Competitive Bid Advances) which, taking into account all distributions made by
Administrative Agent under Section 2.11, causes such Agent or such Lender to
have received more than it would have received had such payment been received by
Administrative Agent and distributed pursuant to Section 2.11 (or, in the case
of Swing Line Advances paid as provided in Section 2.6(b) or in the case of
Competitive Bid Advances paid as provided in Section 2.22(b)), then it shall be
deemed to have simultaneously purchased and shall be obligated to purchase
interests in the Obligations as necessary to cause Administrative Agent and all
Lenders to share all payments (other than in respect of Swing Line Advances and
Competitive Bid Advances) as provided for in Section 2.11, and such other
adjustments shall be made from time to time as shall be equitable to ensure that
all Agents and all Lenders share all payments of Obligations (other than in
respect of its Swing Line Advances and Competitive Bid Advances) as provided in
Section 2.11. If any Agent or any Lender, whether in connection with setoff of
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which might be subject to
setoff, such Agent or Lender agrees, promptly upon demand, to take such action
necessary so that all Agents and all Lenders share in the benefits of such
collateral ratably in proportion to the Obligations owing to each of them.
Nothing herein contained shall in any way affect the right of any Agent or any
Lender to obtain payment (whether by exercise of rights of banker's lien,
set-off or counterclaim or otherwise) of indebtedness other than the
Obligations. Borrower expressly consents to the foregoing arrangements and
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agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by law exercise any and all rights of banker's
lien, set-off, or counterclaim as fully as if such holder were a holder of the
Obligations in the amount of such interest or other participation. If all or any
part of any funds transferred pursuant to this Section is thereafter recovered
from the seller under this Section which received the same, the purchase
provided for in this Section shall be deemed to have been rescinded to the
extent of such recovery, together with interest, if any, if interest is required
pursuant to court order to be paid on account of the possession of such funds
prior to such recovery.
Section 7.7 Investments. Whenever Administrative Agent in good faith
determines that it is uncertain about how to distribute to Lenders any funds
which it has received, or whenever Administrative Agent in good faith determines
that there is any dispute among Lenders about how such funds should be
distributed, Administrative Agent may choose to defer distribution of the funds
which are the subject of such uncertainty or dispute. If Administrative Agent in
good faith believes that the uncertainty or dispute will not be promptly
resolved, or if Administrative Agent is otherwise required to invest funds
pending distribution to Lenders, Administrative Agent may invest such funds
pending distribution (at the risk of the subject Borrower); all interest on any
such investment shall be distributed upon the distribution of such investment
and in the same proportion and to the same Persons as such investment. All
moneys received by Administrative Agent for distribution to Lenders (other than
to the Person who is Administrative Agent in its separate capacity as a Lender)
shall be held by Administrative Agent pending such distribution solely as
Administrative Agent for such Lenders, and Administrative Agent shall have no
equitable title to any portion thereof.
Section 7.8 Benefit of Article 7. The provisions of this Article
(other than the following Section 7.9) are intended solely for the benefit of
Agent and Lenders, and no Obligor shall be entitled to rely on any such
provision or assert any such provision in a claim or defense against Agent or
any Lender. Agent and Lenders may waive or amend such provisions as they desire
without any notice to or consent of any Obligor.
Section 7.9 Resignation and Removal. Any Agent may resign at any time
by giving written notice thereof to Lenders and Borrower. Each such notice shall
set forth the date of such resignation. Majority Lenders or Borrower, with the
consent (which shall not be unreasonably withheld) of Majority Lenders (other
than Agent to be removed) shall be entitled to remove any Agent. Upon any such
resignation or removal, Borrower may, with the written concurrence (which shall
not be unreasonably withheld) of Majority Lenders (exclusive of any such
resigned or removed Agent), designate a successor Agent. If, within fifteen (15)
days after the date of such resignation or removal, Borrower makes no such
designation or such written concurrence is not given, Majority Lenders
(exclusive of any such resigned or removed Agent) shall, with the consent of
Borrower (which consent shall not be unreasonably withheld or delayed), have the
right to appoint a successor Agent. A successor must be appointed for any
retiring Managing Agent, and such Managing Agent's resignation shall become
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effective when such successor accepts such appointment. Upon the acceptance of
any appointment as a Managing Agent hereunder by a successor Managing Agent and
the satisfaction of all obligations on the part of such retiring or removed
Managing Agent necessary to facilitate succession, the retiring or removed
Managing Agent, as the case may be, shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any Agent's
resignation or removal hereunder, the provisions of this Article 7 shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under the Loan Documents. Any out-going Agent shall
promptly execute all assignments and other documents necessary to effectuate the
transfer of the agency in connection with this Agreement and shall promptly
deliver all original documents and any collateral in its possession to the
successor Agents.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Waivers and Amendments. No failure or delay (whether by
course of conduct or otherwise) by any Agent or any Lender in exercising any
right, power or remedy which any Agent or Lender may have under any of the Loan
Documents shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise by any Agent or Lender of any
such right, power or remedy preclude any other or further exercise thereof or of
any other right, power or remedy. No waiver of any provision of any Loan
Document and no consent to any departure therefrom shall ever be effective
unless it is in writing and signed as provided below in this Section, and then
such waiver or consent shall be effective only in the specific instances and for
the purposes for which given and to the extent specified in such writing. No
notice to or demand on any Obligor shall in any case of itself entitle any
Obligor to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Loan Documents set forth the entire
understanding between the parties hereto with respect to the transactions
contemplated herein and therein and supersede all prior discussions and
understandings with respect to the subject matter hereof and thereof, and no
waiver, consent, release, modification or amendment of or supplement to this
Agreement or the other Loan Documents shall be valid or effective against any
party hereto unless the same is in writing and signed by (a) if such party is an
Obligor, by such Obligor, (b) if such party is an Agent, by such Agent and (c)
if such party is a Lender, by such Lender or by Administrative Agent on behalf
of Lenders with the written consent of Required Lenders (or without further
consent than that already provided herein in the circumstances provided in
Section 8.7). Notwithstanding the foregoing or anything to the contrary herein
or in any other Loan Document, no Agent shall, without the prior consent of each
Lender, execute and deliver on behalf of any Lender any waiver or amendment
which would:
(i) increase the Commitment of such Lender or subject such Lender to any
additional obligations;
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(ii) reduce or forgive any fees hereunder, or the principal of, or
interest on, such Lender's Notes or LC Obligations;
(iii) postpone any date fixed for any payment of any fees hereunder, or
principal of, or interest on, such Lender's Notes or LC Obligations;
(iv) amend the definitions herein of "Required Lenders" or "Majority
Lenders" or otherwise change the aggregate amount of Percentage
Shares which is required for Administrative Agent, any other Agent,
Lenders or any of them to take any particular action under the Loan
Documents;
(v) release collateral (except as expressly contemplated by this
Agreement) or any Borrower from its obligation to pay such Lender's
Notes or LC Obligations or any Restricted Subsidiary from its
Guaranty (except upon the Restricted Subsidiary becoming an
Unrestricted Subsidiary as specified in this Agreement);
(vi) amend this Section 8.1;
(vii) extend the Loan Commitment Period;
(ix) amend, modify or waive any provision applicable to the
indemnification of any Lender;
(x) consent to the assignment or transfer by any Obligor of any of its
rights or obligations under this Agreement or the other Loan
Documents; or
(xi) amend, modify or waive the rights and obligations of the Issuing Bank
or the Agents; provided, that no obligation to any Obligor of any
Lender or Issuing Bank or any Agent may be amended, modified or
waived without the written approval of Borrower, which approval shall
not be unreasonably withheld.
Notwithstanding the foregoing or anything to the contrary herein or in
any other Loan Document, no provision of Article 7 may be amended in any way
which impacts or affects any Agent in its capacity as an Agent (as opposed to
its capacity as a Lender) without the prior written consent of such Agent.
Except as provided in the preceding three sentences or as expressly provided in
any Loan Document, the Required Lenders may waive, modify, amend or supplement
this Agreement and each of the other Loan Documents.
Section 8.2 Survival of Agreements; Cumulative Nature. Each Obligor's
various representations, warranties, covenants, indemnities and agreements in
the Loan Documents shall survive the execution and delivery of this Agreement
and the other Loan Documents and the performance hereof and thereof, including
the making or granting of the Loans, the issuance of the Letters of Credit and
the delivery of the Notes, and the other Loan Documents, and shall further
survive until all of the Obligations are paid in full to Agents and Lenders, all
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Letters of Credit have expired or been canceled and all of Agents' and Lenders'
obligations to Borrower are terminated, provided that, notwithstanding the
foregoing, certain Obligations of certain Obligors under their respective
Guaranties shall survive or be reinstated as provided in such Guaranties. The
representations, warranties, indemnities, and covenants made by any Obligor in
any Loan Documents, and the rights, powers, and privileges granted to Agents and
Lenders in the Loan Documents, are cumulative.
Section 8.3 Notices. All notices, requests, consents, demands and
other communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that Administrative Agent may give telephonic notices to the other Agents and
Lenders), and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telecopy (with telephonic confirmation of transmission),
by delivery service with proof of delivery, or by registered or certified United
States mail, postage prepaid, to Borrower at the address of Borrower specified
on the signature pages hereto and to each Agent and each Lender at their
addresses specified on the signature pages hereto (unless changed by similar
notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address
provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail, three (3) days
after deposit in the mail, postage prepaid; provided, however, that no
Request for Advance or Rate Election shall become effective until actually
received by Administrative Agent and no request for the issuance of a
Letter of Credit or Letter of Credit Application shall become effective
until actually received by the Issuing Bank.
Section 8.4 Parties in Interest. All grants, covenants and agreements
contained in the Loan Documents shall bind and inure to the benefit of the
parties thereto and their respective successors and assigns; provided, however,
that no Obligor may assign or transfer any of its rights or delegate any of its
duties or obligations under any Loan Document without the prior written consent
of all Lenders.
Section 8.5 Governing Law. THE LOAN DOCUMENTS SHALL BE DEEMED
CONTRACTS AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF TEXAS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. CHAPTER 15 OF TEXAS REVISED CIVIL STATUTES
ANNOTATED ARTICLE 5069 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS
AND REVOLVING TRI-PARTY ACCOUNTS) DOES NOT APPLY TO THIS AGREEMENT OR TO THE
NOTES.
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Section 8.6 Limitation on Interest. It is the intention of the
parties hereto to conform strictly to applicable usury laws and, anything herein
or any other Loan Document to the contrary notwithstanding, the obligations of
Obligors to a Lender or an Agent under this Agreement and the Loan Documents
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
law applicable to such Lender or Agent limiting rates of interest which may be
charged or collected by such Lender or Agent. Accordingly, if the transactions
contemplated hereby would be usurious under laws applicable to a Lender or Agent
(including the federal and state laws of the United States of America or of any
other jurisdiction whose laws may be mandatorily applicable to such Lender or
Agent notwithstanding anything to the contrary in this Agreement or any other
Loan Document) then, in that event, notwithstanding anything to the contrary in
this Agreement or any other Loan Document, it is agreed as follows:
(a) the provisions of this Section shall govern and control;
(b) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received
under this Agreement, or under any of the aforesaid agreements or otherwise
in connection with this Agreement or any other Loan Document by such Lender
or Agent shall under no circumstances exceed the maximum amount of interest
allowed by applicable law (such maximum lawful interest rate, if any, with
respect to each Lender and each Agent herein called the "Maximum Lawful
Rate"), and any excess shall be canceled automatically and if theretofore
paid shall be credited to the relevant Obligor by such Lender or Agent (or,
if such consideration shall have been paid in full, such excess refunded to
the relevant Obligor);
(c) all sums paid, or agreed to be paid, to such Lender or Agent for the use,
forbearance and detention of the indebtedness of the relevant Obligor to
such Lender or Agent hereunder or under any other Loan Document shall, to
the extent permitted by laws applicable to such Lender or Agent, as the
case may be, be amortized, prorated, allocated and spread throughout the
full term of such indebtedness until payment in full so that the actual
rate of interest is uniform throughout the full term thereof;
(d) if at any time the interest provided pursuant to any provision of this
Agreement or any other Loan Document, together with any other fees payable
pursuant to this Agreement or any other Loan Document and deemed interest
under laws applicable to such Lender or Agent, exceeds the amount which
would have accrued at the Maximum Lawful Rate, the amount of interest and
any such fees to accrue to such Lender or Agent pursuant to this Agreement
or any other Loan Document shall be limited, notwithstanding anything to
the contrary in this Agreement or any other Loan Document, to that amount
which would have accrued at the Maximum Lawful Rate, but any subsequent
reductions, as applicable, shall not reduce the interest to accrue to such
Lender or Agent pursuant to this Agreement or any other Loan Document below
the Maximum Lawful Rate until the total amount of interest accrued pursuant
to this Agreement or such other Loan Document, as the case may be, and such
fees deemed to be interest equals the amount of interest which would have
accrued to such Lender or Agent if a varying rate of interest per annum
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equal to the interest provided pursuant to Section 2.3 or any other
relevant Section hereof (other than this Section) and the Notes, as
applicable, had at all times been in effect, plus the amount of fees which
would have been received but for the effect of this Section; and
(e) if the total amount of interest paid by or accrued with respect to the
Obligations of Borrower, together with any other fees payable pursuant to
this Agreement and the other Loan Documents and deemed interest under laws
applicable to such Lender or Agent pursuant to this Agreement or any other
Loan Document under the foregoing provisions of this Section is less than
the total amount of interest which would have accrued if a varying rate per
annum equal to the interest provided pursuant to Section 2.3 or any other
relevant section hereof (other than this Section), as applicable, had at
all times been in effect and all fees provided for in this Agreement and
the other Loan Documents had been paid, then Borrower severally agrees to
pay to such Lender or Agent an amount equal to the difference between, (i)
the lesser of, (x) the amount of interest and fees which would have accrued
if the Maximum Lawful Rate had at all times been in effect, and (y) the
amount of interest and fees which would have accrued if a varying rate per
annum equal to the interest provided pursuant to Section 2.3 or such other
relevant section of this Agreement (other than this Section) and the Notes,
as applicable, had at all times been in effect and all fees had been paid,
and (ii) the amount of interest and fees accrued in accordance with the
other provisions of this Agreement and other Loan Documents.
For purposes of Article 5069-1.04 of Vernon's Texas Civil Statues, as
amended, to the extent, if any, applicable to any Lender or Agent, Borrower and
each other Obligor agrees that the Maximum Lawful Rate shall be the "indicated
(weekly) rate ceiling" as defined in said Article, provided that such Lender or
Agent, as applicable, may also rely, to the extent permitted by applicable laws
of the State of Texas and the United States of America, on alternative maximum
rates of interest under other laws applicable to such Lender or Agent from time
to time if greater.
Section 8.7 Termination; Limited Survival. In its sole and absolute
discretion, Borrower may, at any time that no Obligations or other amounts are
owing and no Letters of Credit are outstanding, elect to terminate this
Agreement in a written notice delivered to Administrative Agent. Upon receipt by
Administrative Agent of such a notice, if no Obligations or other amounts are
then owing and no Letters of Credit are outstanding, this Agreement and all
other Loan Documents shall thereupon be terminated and the parties thereto
released from all prospective obligations hereunder or thereunder.
Notwithstanding the foregoing or anything herein to the contrary, any waivers or
admissions made by any Obligor in any Loan Document, any Obligations under
Sections 2.16 through 2.20, any obligations which any Obligor may have to
indemnify or compensate any Agent, any Issuing Bank, or any Lender in connection
with matters arising upon or prior to the termination of this Agreement and any
obligations which any Lender may have to indemnify or compensate any Agent or
Issuing Bank in connection with matters arising upon or prior to the termination
of this Agreement shall survive any termination of this Agreement or any other
Loan Document and the release of Obligors. At the request and expense of
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Borrower, Managing Agents shall prepare and execute all necessary instruments to
reflect and effect such termination of the Loan Documents including, without
limitation, the Security Instruments. Managing Agents are hereby authorized,
jointly and severally, to execute all such instruments on behalf of all Lenders,
without the joinder of or further action or consent by any Lender.
Section 8.8 Assignments; Participations.
(a) Each Lender shall have the right to sell, assign or transfer all or any
part of such Lender's Notes, Loans, Commitments and LC Obligations
hereunder to one or more Affiliates, Lenders, financial institutions,
pension plans, investment funds, or similar Persons or to a Federal Reserve
Bank; provided, that in connection with each sale, assignment or transfer
(other than to an Affiliate, a Lender or a Federal Reserve Bank), the
applicable Lender will consider the opinion and recommendation of Borrower,
which opinion and recommendation shall in no way be binding upon such
Lender, and each such sale, assignment, or transfer (other than to an
Affiliate, a Lender or a Federal Reserve Bank) shall be with the consent of
Borrower (unless an Event of Default has occurred and is continuing), which
consent will not be unreasonably withheld, and with the consent of
Administrative Agent, which consent will not be unreasonably withheld, and
the assignee, transferee or recipient shall have, to the extent of such
sale, assignment, or transfer, the same rights, benefits and obligations as
it would if it were such Lender and a holder of such Notes, Commitments and
LC Obligations, including, without limitation, the right to vote on
decisions requiring consent or approval of all Lenders, Majority Lenders or
Required Lenders and the obligation to fund its Loans; provided further,
that (1) each Lender in making each such sale, assignment, or transfer must
sell, assign or transfer a pro rata portion of its Commitments and each
Loan (other than a Swing Line Advance or a Competitive Bid Advance) and LC
Obligation made or held by such Lender, (2) each such sale, assignment, or
transfer (other than to an Affiliate, a Lender or a Federal Reserve Bank)
shall be in an aggregate principal amount not less than $10,000,000, (3)
each remaining Lender shall at all times maintain Commitments then
outstanding in an aggregate principal amount at least equal to $10,000,000;
(4) no Lender may offer to sell its Notes, Commitments, LC Obligations or
Loans or interests therein in violation of any securities laws; and (5) no
such assignments (other than to a Federal Reserve Bank) shall become
effective until the assigning Lender delivers to Administrative Agent and
Borrower copies of all written assignments and other documents evidencing
any such assignment and an Agreement to be Bound in the form of Exhibit L,
providing for the assignee's ratification and agreement to be bound by the
terms of this Agreement and the other Loan Documents. An assignment fee in
the amount of $3,500 for each such assignment (other than to an Affiliate,
a Lender or a Federal Reserve Bank) will be payable to Administrative Agent
by assignor or assignee. Within five (5) Business Days after its receipt of
copies of any assignment and the other documents relating thereto and the
following described Notes, Borrower shall execute and deliver to
Administrative Agent (for delivery to the relevant assignee) new Notes
evidencing such assignee's assigned Loans and Commitments and if the
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assignor Lender has retained a portion of its Loans, replacement Notes in
the principal amount of the Loans and Commitments retained by the assignor
Lender (except as provided in the last sentence of this paragraph (a) such
Notes to be in exchange for, but not in payment of, the Notes held by such
Lender). On and after the effective date of an assignment hereunder, the
assignee shall for all purposes be a Lender, party to this Agreement and
any other Loan Document executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party thereto, and no further consent or
action by Borrower, Lenders or any Agent shall be required to release the
transferor Lender, with respect to the Commitments, the LC Obligations and
the Loans assigned to such assignee and the transferor Lender shall
henceforth be so released.
(b) Each Lender shall have the right to grant participations in all or any part
of such Lender's Notes, Commitments, LC Obligations, and Loans hereunder to
one or more pension plans, investment funds, financial institutions or
other Persons; provided, that:
(1) each Lender granting a participation shall retain the right to vote
hereunder, and no participant shall be entitled to vote hereunder on
decisions requiring consent or approval of Lenders, Majority Lenders
or Required Lenders (except as set forth in (3) below);
(2) in the event any Lender grants a participation hereunder, such
Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender
shall remain the holder of any such Notes for all purposes under the
Loan Documents, and each Agent, each Lender and Borrower shall be
entitled to deal with the Lender granting a participation in the
same manner as if no participation had been granted; and
(3) no participant shall ever have any right by reason of its
participation to exercise any of the rights of Lenders hereunder,
except that any Lender may agree with any participant that such
Lender will not, without the consent of such participant (which
consent may not be unreasonably withheld), consent to any amendment
or waiver described in Section 8.1 requiring approval of 100% of the
Lenders.
(c) It is understood and agreed that any Lender may provide to assignees and
participants and prospective assignees and participants financial
information and reports and data concerning Borrower's properties and
operations which was provided to such Lender pursuant to this Agreement,
subject to Section 8.9.
(d) Upon the reasonable request of either of the Managing Agents or Borrower,
each Lender will identify those to whom it has assigned or participated any
part of its Notes, LC Obligations or Loans, and provide the amounts so
assigned or participated.
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Section 8.9 Confidentiality. Each Agent and each Lender agrees that
it (a) will maintain the confidentiality of all non-public information from any
Obligor or any Subsidiary of Borrower obtained pursuant to the terms of this
Agreement or any other Loan Document in accordance with safe and sound banking
practices, and (b) will not use such confidential information for any purpose
other than in connection with this Agreement; provided, however, that this
restriction shall not apply to information which (w) has at the particular time
in question entered the public domain, or been independently developed without
the use or incorporation of any non-public information provided to such Agent or
Lender by any Obligor or any Subsidiary of Borrower by such Agent or such Lender
other than through disclosure by such Agent or such Lender in violation of this
Section, (x) is required to be disclosed by law or by any order, rule,
regulation or legal process (whether valid or invalid) of any court or
Governmental Authority, (y) is furnished to any other Lender or to any purchaser
or prospective purchaser of participations, assignments or other interests in
any Loan, Note, LC Obligation or Commitment that has executed and delivered to
Borrower an agreement containing terms substantially similar to this Section and
reasonably acceptable to Borrower, to keep such information confidential or (z)
is disclosed to such Lender's or Agent's examiners, Affiliates, outside
auditors, counsel and other professional advisors who have a need for such
information in connection with this Agreement and who are advised of the
confidential nature of such information. As used in this Section, the terms
"Agent" and "Lender" shall refer not only to the Persons designated as such in
Section 1.1, but also to each director, Affiliate, officer, agent, attorney,
employee and representative of such Person. Notwithstanding any other provisions
of this Agreement, the terms of this Section shall survive the termination of
this Agreement for a period of three (3) years.
Section 8.10 Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable in any jurisdiction,
such term or provision shall, as to such jurisdiction, be illegal or
unenforceable, without affecting the remaining provisions in that jurisdiction
or the legality or enforceability of such terms or conditions in any other
jurisdiction.
Section 8.11 Counterparts. This Agreement may be separately executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.
Section 8.12 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES. EACH OF THE
BORROWER, AGENTS AND LENDERS HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED
THEREBY OR ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY; (II) IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES; (III) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR
COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED
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THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS; AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION.
Section 8.13 Several Obligations. The respective obligations of
Lenders hereunder are several and not joint and no Lender shall be the partner
or agent of any other (except to the extent to which an Agent is authorized to
act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement is not intended to, and shall not be construed so as
to, confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
Section 8.14 Nonliability of Lenders. The relationship between
Borrower on the one hand and Lenders and Agents on the other hand shall be
solely that of borrower and lender. None of the Agents nor any Lender shall have
any fiduciary responsibilities to Borrower or any of its respective
Subsidiaries. None of the Agents nor any Lender undertakes any responsibility to
Borrower or any of their respective Subsidiaries to review or inform Borrower of
any matter in connection with any phase of Borrower's or such Subsidiary's
business or operations.
Section 8.15 Setoff. In addition to, and without any limitation of,
any rights of the Lenders under applicable law, if Borrower becomes insolvent,
however evidenced, or any Event of Default or Default occurs and the maturity of
the Obligations has been accelerated, any indebtedness from any Lender to
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the Obligations,
or any part thereof, shall then be due and payable.
Section 8.16 Release of Liens. Upon the date of execution and
delivery of a Guaranty of the type referred to in clause (i) of the definition
of "Guaranty" by a Restricted Subsidiary the capital stock of which has been
pledged (each such date, a "Stock Pledge Release Date"), the Collateral Agent
shall release and discharge, at the cost or expense of Borrower, the Pledge
Agreement covering such Subsidiary's capital stock, all of Lenders' and
Collateral Agent's rights and interests in such Pledge Agreement and all liens,
security interests, pledges and encumbrances created or existing under or
pursuant to such Pledge Agreement.
Section 8.17 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL
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AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. FOR THE PURPOSE OF ANY
ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR STATE COURTS OF TEXAS,
HOLDINGS HEREBY IRREVOCABLY DESIGNATES BORROWER WITH OFFICES ON THE DATE HEREOF
AT 303 WEST WALL STREET, SUITE 101, MIDLAND, TEXAS 79701 TO RECEIVE FOR AND ON
BEHALF OF HOLDINGS, SERVICES OF PROCESS IN TEXAS. BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 8.18 Renewal, Extension or Rearrangement. All provisions of
this Agreement and any other Loan Document relating to the Notes or the other
Obligations (including LC Obligations) shall apply with equal force and effect
to each and all promissory notes or other agreements or instruments hereafter
executed which in whole or in part represent a renewal, extension, increase or
rearrangement of any part of the original Notes or Obligations.
Section 8.19 Entire Agreement. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
78
<PAGE>
IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
BORROWER:
PIONEER NATURAL RESOURCES
USA, INC.
By: /s/ Curt F. Kamradt
----------------------------
Name: Curt F. Kamradt
Title: Vice President - Treasurer
Address: 303 West Wall, Suite 101
P.O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 1
<PAGE>
LENDERS:
NATIONSBANK OF TEXAS, N.A.,
individually and as Administrative
Agent and as Collateral Agent
By: /s/ Frank K. Stowers
------------------------------
Name: Frank K. Stowers
Title: Vice President
Address: 303 W. Wall
P. O. Box 1599
Midland, Texas 79701
Attention: Mr. Frank K. Stowers
Telephone: (915) 685-2179
Telecopy: (915) 685-2009
with further notice to:
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: Mr. E. Murphy Markham IV
Telephone: (214) 508-1251
Telecopy: (214) 508-1285
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 2
<PAGE>
CIBC INC., individually and as
Documentation Agent
By: /s/ Aleksandra Dymanus
----------------------------
Name: Aleksandra K. Dymanus
Title: Authorized Signatory
Address: 2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Attention: Joan Moseley
Telephone: (770) 319-4824
Telecopy: (770) 319-4950
with further notice to:
2 Houston Center
909 Fannin Street, Suite 1200
Houston, Texas 77010
Attention: Mr. Paul Jordan
Telephone: (713) 655-5220
Telecopy: (713) 650-3727
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 3
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, individually
and as Documentation Agent
By: /s/ John Kowalczuk
----------------------------
Name: John Kowalczuk
Title: Vice President
Address: 60 Wall Street, 22nd Floor
New York, New York 10260
Attention: Mr. Philip McNeal
Telephone: (212) 648-7181
Telecopy: (212) 648-5023
with further notice to:
Sandra H. Doherty
500 Christiana Stanton Road
Newark DE 19713-2107
Telephone: (302) 634-8122
Telecopy: (302) 634-1092
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 4
<PAGE>
THE CHASE MANHATTAN BANK,
individually and as Syndication Agent
By: /s/ Lawrence Palumbo, Jr.
------------------------------
Name: Lawrence Palumbo, Jr.
Title: Vice President
Address: 712 Main Street, 5th Floor
P. O. Box 2558
Houston, Texas 77252-8086
Attention: Mr. Robert Mertensoto
Telephone: (713) 216-4147
Telecopy: (713) 216-4117
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 5
<PAGE>
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
individually and as Co-Agent
By: /s/ Ronald E. McKaig
-------------------------
Name: Ronald E. McKaig
Title: Vice President
Address: 3 Allen Center
333 Clay Street, Suite 4550
Houston, TX 77002
Attention: Mr. Ron McKaig
Telephone: (713) 651-4881
Telecopy: (713) 651-4841
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 6
<PAGE>
THE BANK OF NEW YORK, individually
and as Co-Agent
By: /s/ Raymond J. Palmer
----------------------------
Name: Raymond J. Palmer
Title: Vice President
Address: One Wall Street, 19th Floor
New York, New York 10286
Attention: Mr. Ray Palmer
Telephone: (212) 635-7834
Telecopy: (212) 635-7923
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 7
<PAGE>
THE BANK OF NOVA SCOTIA,
individually and as Co-Agent
By: /s/ F.C.H. Ashby
--------------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Address: 600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Mr. Cleve Bushey
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 8
<PAGE>
ROYAL BANK OF CANADA, individually
and as a Co-Agent
By: /s/ Linda M. Stephens
--------------------------
Name: Linda M. Stephens
Title: Manager
Address: Financial Square
32 Old Slip St.
New York, New York
10005-3531
Attention: Loan Administrator
Telephone: (212) 428-6321
Telecopy: (212) 428-2372
with copy to:
Address: Royal Bank of Canada
12450 Greenspoint Drive
Suite 1450
Houston, Texas 77060
Attention: Linda M. Stephens
Telephone: (281) 874-5669
Telecopy: (281) 874-0081
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 9
<PAGE>
UNION BANK OF CALIFORNIA, N.A.,
individually as a Co-Agent
By: /s/ Katie Murray
--------------------------
Name: Katie Murray
Title: Vice President
Address: 500 North Akard, Suite 4200
Dallas, Texas 75201
Attention: Ms. Katie Murray
Telephone: (214) 922-4207
Telecopy: (214) 922-4209
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 10
<PAGE>
WELLS FARGO BANK, N.A.,
individually as a Co-Agent
By: /s/ Lester J.N. Keliher
--------------------------
Name: Lester J.N. Keliher
Title: Vice President
Address: 1445 Ross Avenue, Suite 400
LB 224
Dallas, Texas 75202
Attention: Mr. Lester Keliher
Telephone: (214) 777-4025
Telecopy: (214) 777-4044
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 11
<PAGE>
THE FUJI BANK, LIMITED-HOUSTON
AGENCY, individually as a Co-Agent
By: /s/ Yutaka Taniuchi
--------------------------
Name: Yutaka Taniuchi
Title: Senior Vice President
Address: 1221 McKinney Street
Suite 4100
Houston, Texas 77002
Attention: Mr. Tommy Watts
Telephone: (713) 650-7868
Telecopy: (713) 759-0717
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 12
<PAGE>
DEN NORSKE BANK ASA, individually
and as Lead Manager
By: /s/ J. Morten Kreutz
--------------------------
Name: J. Morten Kreutz
Title: Vice President
By: /s/ Charles E. Hall
--------------------------
Name: Charles E. Hall
Title: Senior Vice President
Address: 333 Clay Street, Suite 4890
Houston, Texas 77002
Attention: Mr. J. Morten Kreutz
Telephone: (713) 844-9255
Telecopy: (713) 757-1167
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 13
<PAGE>
BANQUE PARIBAS, individually and
as Lead Manager
By: /s/ Barton D. Schouest
--------------------------
Name: Barton D. Schouest
Title: Group Vice President
By: /s/ Brian Malone
--------------------------
Name: Brian Malone
Title: Vice President
Address: 1200 Smith Street
Two Allen Center
Suite 3100
Houston, Texas 77002
Attention: Mr. David Dodd
Telephone: (713) 659-4811
Telecopy: (713) 659-6915
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 14
<PAGE>
FIRST UNION NATIONAL BANK,
individually and as a Lead Manager
By: /s/ Michael J. Kolosowsky
-----------------------------
Name: Michael J. Kolosowsky
Title: Vice President
Address: 1001 Fannin Street
Suite 2255
Houston, Texas 77002
Attention: Mr. Paul N. Riddle
Telephone: (713) 650-3716
Telecopy: (713) 650-6354
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 15
<PAGE>
BANKERS TRUST COMPANY, as a Lender
By: /s/ Marcus M. Tarkington
------------------------------
Name: Marcus M. Tarkington
Title: Vice President
Address: 130 Liberty Street
M.S. 2344
New York, New York 10006
Attention: Marcus M. Tarkington
Telephone: (212) 250-7684
Telecopy: (212) 250-8693
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 16
<PAGE>
CAISSE NATIONALE DE CREDIT
AGRICOLE, as a Lender
By: /s/ Katherine L. Abbott
-----------------------------
Name: Katherine L. Abbott
Title: First Vice President
Address: 55 East Monroe
Chicago, Illinois 60603
Attention: Ms. Rosemary Brown
Telephone: (312) 917-7420
Telecopy: (312) 372-4421
with further notice to:
Mr. Kevin Costello
600 Travis, Suite 2340
Houston, Texas 77002
Telephone: (713) 223-7003
Telecopy: (713) 223-7029
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 17
<PAGE>
NATEXIS BANQUE, as a Lender
BFCE
By: /s/ Mark A. Harrington
----------------------------
Name: Mark A. Harrington
Title: Vice President and
Regional Manager
By: /s/ Eric Ditges
----------------------------
Name: Eric Ditges
Title: Assistant Treasurer
Address: 333 Clay Street, Suite 4340
Houston, Texas 77002
Attention: Mr. Eric Ditges
Telephone: (713) 759-9401
Telecopy: (713) 759-9908
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 18
<PAGE>
THE SUMITOMO BANK, LIMITED, as
a Lender
By: /s/ Harumitsu Seki
--------------------------
Name: Harumitsu Seki
Title: General Manager
Administrative matters:
Address: 277 Park Avenue, 6th Floor
New York, New York 10172
Attention: Thierry LeJouan
Telephone: (212) 224-4138
Telecopy: (212) 224-5197
Credit matters:
Mr. Bill McKown
700 Louisiana, Suite 1750
Houston, Texas 77002
Telephone: (713) 238-8217
Telecopy: (713) 759-0020
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 19
<PAGE>
TORONTO DOMINION (TEXAS), INC.
as a Lender
By: /s/ Darlene Riedel
--------------------------
Name: Darlene Riedel
Title: Vice President
Address: 909 Fannin Street, Ste. 1700
Houston, Texas 77010
Attention: Darlene Riedel
Telephone: (713) 653-8250
Telecopy: (713) 951-9921
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 20
<PAGE>
THE TOYO TRUST & BANKING CO.,
LTD., as a Lender
By: /s/ T. Mikumo
--------------------------
Name: T. Mikumo
Title: Vice President
Address: 666 5th Avenue, 33rd Floor
New York, New York 10103
Attention: Ms. Sharon Bonelli
Telephone: (212) 307-3410
Telecopy: (212) 307-3498
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 21
<PAGE>
WACHOVIA BANK, N.A., as a Lender
By: /s/ Paige D. Mesaros
--------------------------
Name: Paige D. Mesaros
Title: Vice President
Address: 191 Peachtree Street
Atlanta, Georgia 30303
Attention: Ms. Paige Mesaros
Telephone: (404) 332-1322
Telecopy: (404) 332-6898
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 22
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH,as a Lender
By: /s/ Masayoshi Komaki
--------------------------
Name: Masayoshi Komaki
Title: Vice President
Address: One World Trade Center
48th Floor
New York, New York 10048
Attention: Mr. Masayoshi Komaki
Telephone: (212) 432-6627
Telecopy: (212) 912-1879
Further notice to:
DKB-Houston LPO
1100 Louisiana, Suite 4940
Houston, Texas 77002
Attention: Mr. Warren Ross
Telephone: (713) 654-5055
Telecopy: (713) 654-1667
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 23
<PAGE>
THE SANWA BANK, LIMITED, as a Lender
By: /s/ Toru Sakamuro
--------------------------
Name: Toru Sakamuro
Title: Vice President
Address: 4100W Texas Commerce Tower
2200 Ross Avenue
Dallas, Texas 75201
Attention: Mr. Matthew Patrick
Telephone: (214) 665-0242
Telecopy: (214) 953-3963
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 24
<PAGE>
KREDIETBANK N.V., as a Lender
By: /s/ Robert Snauffer
--------------------------
Name: Robert Snauffer
Title: Vice President
By: /s/ Tod R. Angus
--------------------------
Name: Tod R. Angus
Title: Vice President
Address: 125 West 55th Street
New York, NY 10019
Attention: Robert E. Snauffer
Vice President
Telephone: (212) 541-0700
Telecopy: (212) 956-5580
with a copy to:
Kredietbank N.V., Atlanta
Representative Office
Two Midtown Plaza
1349 W. Peachtree Street
Atlanta, Georgia 30309
Attention: Mr. Felip Ferrante
Telephone: (404) 876-2556
Telecopy: (404) 876-3212
[SIGNATURE PAGE TO PRIMARY FACILITY]
S - 25
<PAGE>
Exhibit A-1
[Form of]
Loan Note - Primary Facility
$ , 199
----------------- ----------- --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation, with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of
and No/100 Dollars ($ ), or, if greater or less, the aggregate unpaid
principal amount of each Loan made under this Note by Lender to Borrower
pursuant to the terms of the Credit Agreement (as defined herein), together with
interest on the unpaid principal balance thereof as hereinafter set forth, both
principal and interest payable as herein provided in lawful money of the United
States of America at the principal banking offices of the Administrative Agent
under the Credit Agreement, 901 Main Street, Dallas, Texas 75202, or at such
other place as from time to time may be designated by the holder of this Note,
with the concurrence of Borrower and Administrative Agent. Subject to the terms
and conditions of the Credit Agreement and hereof, Borrower may borrow, repay
and reborrow hereunder.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Loan Note" as defined therein, and (b) is subject to the terms and provisions
of the Credit Agreement, which contains provisions for payment and prepayment
hereunder and acceleration of the maturity hereof upon the happening of certain
events. Payments on this Note shall be made and applied as provided herein and
in the Credit Agreement. Reference is hereby made to the Credit Agreement for a
description of certain rights, limitations of rights, obligations and duties of
the parties hereto and for the meanings assigned to terms used and not otherwise
defined herein.
Interest accrued on each Loan evidenced by this Note shall be payable,
without duplication: (a) on the Maturity Date; (b) with respect to any Base Rate
Portion of the Loans evidenced by this Note, on the third Business Day of each
Fiscal Quarter occurring after the date of the initial borrowing of a Base Rate
Portion hereunder; (c) with respect to any Eurodollar Portion of the Loans
evidenced by this Note, on the last day of each applicable Interest Period (and,
if such Interest Period shall exceed 90 days, on the 90th day of such Interest
Period and every 90 days thereafter until the end of such Interest Period); (d)
with respect to any Base Rate Portion converted into a Eurodollar Portion of the
Loans evidenced by this Note pursuant to a Rate Election on a day when interest
would not otherwise have been payable pursuant to clause (b), on the third
Exhibit A-1 - 1
<PAGE>
Business Day of each Fiscal Quarter occurring after the date of such conversion;
and (e) on any portion of the Loans evidenced by this Note, the Maturity Date of
which is accelerated pursuant to Section 6.1 of the Credit Agreement, on the
date to which the Maturity Date of such portion has been accelerated. Interest
accrued on the Loans evidenced by this Note or other monetary Obligations
arising under this Note, the Credit Agreement or any other Loan Document after
the date such amount is due and payable (whether on the Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
The principal amount of this Note, together with all interest accrued
hereon and unpaid, shall be due and payable in full on the Maturity Date.
The Base Rate Portion of the Loans evidenced by this Note (exclusive of
any past due principal or interest) from time to time outstanding shall bear
interest on each day outstanding at the Base Rate, plus the applicable Base Rate
Margin. Each Eurodollar Portion of the Loans evidenced by this Note (exclusive
of any past due principal or interest) shall bear interest on each day during
the related Interest Period at the applicable Eurodollar Rate, plus the
applicable Eurodollar Margin. All past due principal of the Loans evidenced by
this Note or other Obligations arising under the Credit Agreement or any other
Loan Document (whether payable on the Maturity Date or otherwise) shall bear
interest on each day outstanding after its due date at the applicable Default
Rate in effect on such day.
Notwithstanding the other provisions of this Note or the Credit
Agreement, in no event shall the interest payable hereon, whether before or
after maturity, exceed the Maximum Lawful Rate and this Note is expressly made
subject to the provisions of the Credit Agreement which more fully set out the
limitations on how interest accrues hereon. In the event applicable law provides
for a ceiling under Texas Revised Civil Statutes Annotated article 5069-1.04,
that ceiling shall be the indicated rate ceiling. The term "applicable law" as
used in this Note shall mean the laws of the State of Texas or the laws of the
United States, whichever laws allow the greater interest as such laws now exist
or may be enacted, changed or amended or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Exhibit A-1 - 2
<PAGE>
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to Loans
made pursuant to the Credit Agreement subsequent to each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND LENDER WITH
RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Exhibit A-1 - 3
<PAGE>
Exhibit A-2
[Form of]
Swing Line Note - Primary Facility
$ , 199
------------------ ----------- --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of FIFTY
MILLION AND NO/100 Dollars ($50,000,000), or, if less, the aggregate unpaid
principal amount of the Swing Line Advances made under this Note by Lender to
Borrower pursuant to the terms of the Credit Agreement (as defined herein),
together with interest on the unpaid principal balance thereof as hereinafter
set forth, both principal and interest payable as herein provided in lawful
money of the United States of America at the principal banking offices of
Administrative Agent under the Credit Agreement, 901 Main Street, Dallas, Texas
75202, or at such other place as from time to time may be designated by the
holder of this Note, with the concurrence of Borrower and Administrative Agent.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Swing Line Note" as defined therein, and (b) is subject to the terms and
provisions of the Credit Agreement, which contains provisions for payment and
prepayment hereunder and acceleration of the maturity hereof upon the happening
of certain events. Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date. Interest accrued on the
Swing Line Advances evidenced by this Note shall be payable as provided in the
Credit Agreement.
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after maturity,
exceed the Maximum Lawful Rate and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event applicable law provides for a ceiling
under Texas Revised Civil Statutes Annotated article 5069-1.04, that ceiling
Exhibit A-2 - 1
<PAGE>
shall be the indicated rate ceiling. The term "applicable law" as used in this
Note shall mean the laws of the State of Texas or the laws of the United States,
whichever laws allow the greater interest as such laws now exist or may be
enacted, changed or amended or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to Loans
made pursuant to the Credit Agreement subsequent to each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Exhibit A-2 - 2
<PAGE>
Exhibit A-3
[Form of]
Competitive Bid Note - Primary Facility
$ , 199
-------------------------- ------------ --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation, with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of ONE
BILLION ONE HUNDRED MILLION AND No/100 DOLLARS ($1,100,000,000), or, if less,
the aggregate unpaid principal amount of all Competitive Bid Advances shown on
the schedule attached hereto (and any continuation thereof), if so shown, made
by the Lender to Borrower, together with interest on the unpaid principal
balance thereof as hereinafter set forth, both principal and interest payable as
herein provided in lawful money of the United States of America at the principal
banking offices of Administrative Agent under the Credit Agreement (as defined
herein), 901 Main Street, Dallas, Texas 75202, or at such other place as from
time to time may be designated by the holder of this Note, with the concurrence
of Borrower and Administrative Agent.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Competitive Bid Note" as defined therein, and (b) is subject to the terms and
provisions of the Credit Agreement, which contains provisions for payment and
prepayment hereunder and acceleration of the maturity hereof upon the happening
of certain events. Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date.
Interest accrued on the Competitive Bid Advances evidenced by this Note
shall be payable as provided in the Credit Agreement.
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after maturity,
exceed the Maximum Lawful Rate and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event applicable law provides for a ceiling
Exhibit A-3 - 1
<PAGE>
under Texas Revised Civil Statutes Annotated article 5069-1.04, that ceiling
shall be the indicated rate ceiling. The term "applicable law" as used in this
Note shall mean the laws of the State of Texas or the laws of the United States,
whichever laws allow the greater interest as such laws now exist or may be
enacted, changed or amended or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to
Competitive Bid Advances made pursuant to the Credit Agreement subsequent to
each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Exhibit A-3 - 2
<PAGE>
Exhibit B-1
[Note: Language in brackets will not be included in every Guaranty to the extent
that, at the time of execution and delivery of the Guaranty, such execution and
delivery would result in adverse tax consequences under ss.956 or substantial
stamp tax or similar taxes, are prohibited pursuant to contractual restrictions
or are prohibited as a matter of corporate law.]
[Form of]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of , 199 , made by
[(A.C.N. )], a ("Guarantor"), in favor
of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans or
issuing of the initial Letters of Credit under the Credit Agreements, Guarantor
is required to execute and deliver this Guaranty; and
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
Exhibit B-1 - 1
<PAGE>
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Guarantor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
Exhibit B-1 - 2
<PAGE>
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Primary Credit Agreement" is defined in the first recital.
"364 Day Credit Agreement" is defined in the second recital.
SECTION 1.2. Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Primary
Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees
(i) the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of
Borrower now or hereafter existing under the Credit
Agreements, the Notes, the LC Applications and each other Loan
Document to which Borrower is or may become a party, whether
for principal, interest, fees, expenses or otherwise;
(ii) the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future rate swap, rate cap, rate
floor, rate collar, currency exchange transaction, forward
rate agreement, or other exchange or rate protection
agreements or any option with respect to any such transaction
now existing or hereafter entered into between Borrower or any
of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement");
(iii) the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future crude oil, natural gas or other
hydrocarbons swap agreements, crude oil, natural gas or other
hydrocarbons cap, crude oil, natural gas or other hydrocarbons
floor, crude oil, natural gas or other hydrocarbons collar,
crude oil, natural gas or other hydrocarbons exchange
transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil,
natural gas or other hydrocarbons protection agreements or any
option with respect to any such transaction now existing or
Exhibit B-1 - 3
<PAGE>
hereafter entered into between Borrower or any of its
Subsidiaries and one or more of the Lenders or their
Affiliates; and
(iv) all renewals, rearrangements, increases,
extensions for any period, substitutions, modification,
amendments or supplements in whole or in part of any of the
above loan documents or obligations,
(including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. ss.502(b) and ss.506(b)), and (b) indemnifies and holds harmless
strictly in accordance with the terms of the Credit Agreements each
Lender Party and each holder of a Note from Borrower, an LC Application
or any interest in an LC Obligation for any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by such
Lender Party or such holder, as the case may be, in enforcing any
rights under this Guaranty; provided, however, that Guarantor shall
only be liable under this Guaranty for the maximum amount of such
liability that can be hereby incurred without rendering this Guaranty,
as it relates to Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater
amount. This Guaranty constitutes a guaranty of payment when due and
not of collection, and Guarantor specifically agrees that it shall not
be necessary or required that any Lender Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against Borrower or any other Obligor (or any other
Person) before or as a condition to the obligations of Guarantor
hereunder. All payments hereunder are to be made in the currency in
which they are due under the Credit Agreements.
SECTION 2.2. Acceleration of Guaranty. Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower, Parent or Guarantor, or the
inability or failure of Borrower, Parent or Guarantor to pay debts as they
become due, or an assignment by Borrower, Parent or Guarantor for the benefit of
creditors, or the commencement of any case or proceeding in respect of Borrower,
Parent or Guarantor under any bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Obligations of Borrower and
Parent may not then be due and payable, Guarantor will pay to the Lenders
forthwith the full amount which would be payable hereunder by Guarantor if all
such Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of
Borrower and Parent have been paid in full, all obligations of Guarantor
hereunder shall have been paid in full and all Commitments shall have
terminated. Guarantor guarantees that the Obligations of Borrower and Parent
Exhibit B-1 - 4
<PAGE>
will be paid strictly in accordance with the terms of the Credit Agreements and
each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Lender Party or any holder of any Note with
respect thereto. The liability of Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
(a) (i) any lack of validity, legality or enforceability of
the Credit Agreements, any Note, any LC Application or any other Loan
Document or any portion of any thereof or (ii) the Credit Agreements,
any Note, any LC Application or any other Loan Document or any portion
of any thereof being void or voidable;
(b) the failure of any Lender Party or any holder of any Note,
any LC Application, Letter of Credit or any interest therein
(i) to assert any claim or demand or to enforce any
right or remedy against Borrower, any other Obligor or any
other Person (including any other guarantor) under the
provisions of the Credit Agreements, any Note, any LC
Application, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of Borrower or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligations of Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and Guarantor hereby waives
any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations of
Borrower, any other Obligor or otherwise;
(e) any amendment to, extensions of, rescission, waiver, or
other modification of, or any consent to departure from, any of the
terms of the Credit Agreements, any Note, any LC Application, any
Letter of Credit or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender Party or any holder of any Note, any LC
Application, any Letter of Credit or interest therein securing any of
the Obligations of Borrower or any other Obligor; or
Exhibit B-1 - 5
<PAGE>
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.4. Reinstatement. Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations guaranteed hereby is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, any LC Application or any interest in an LC Obligation, upon the
insolvency, bankruptcy or reorganization of Borrower, or any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver. Guarantor hereby waives promptness, diligence,
presentment, notice of acceptance and any other notice with respect to any of
the Obligations of Borrower or any other Obligor and this Guaranty and any
requirement that any Agent, any other Lender Party or any holder of any Note,
any LC Application, any Letter of Credit or any interest therein protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against Borrower, any other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Obligations of Borrower or any other Obligor, as the
case may be.
SECTION 2.6. Waiver of Subrogation. Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Obligor that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in any
claim or remedy of the Lender Parties against Borrower or any other Obligor or
any collateral which the Collateral Agent now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from Borrower or any other
Obligor, directly or indirectly, in cash or other property or by set-off or in
any manner, payment or security on account of such claim or other rights. If any
amount shall be paid to Guarantor in violation of the preceding sentence and the
Obligations shall not have been paid in cash in full and the Commitments have
not been terminated, such amount shall be deemed to have been paid to Guarantor
for the benefit of, and held in trust for, the Lender Parties, and shall
forthwith be paid to the Lender Parties to be credited and applied upon the
Obligations, whether matured or unmatured; otherwise it shall be returned to
remitter. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreements
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes.
This Guaranty shall:
Exhibit B-1 - 6
<PAGE>
(a) be binding upon Guarantor, and its successors, transferees
and assigns (provided, however, that Guarantor may not assign any of
its obligations hereunder without the prior written consent of all
Lenders); and
(b) inure to the benefit of and be enforceable by each Agent
and each other Lender Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note, Loan, LC
Application, Letter of Credit or interest therein held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 8.8 of the Credit Agreements.
SECTION 2.8. Taxes. All payments by the undersigned hereunder shall
be made free and clear of and without deduction for any present or future
income, excise, stamp, or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by any
Lender's net income or receipts (such non-excluded items being called "Taxes").
In the event that any withholding or deduction from any payment to be made
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then, subject to the provisions of Section 2.9, the
undersigned will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to Administrative Agent an official
receipt or other documentation satisfactory to Administrative Agent
evidencing such payment to such authority; and
(c) pay to Administrative Agent for the account of the
applicable Lender(s) such additional amount(s) as is necessary to
ensure that the net amount actually received by each Lender will equal
the full amount such Lender would have received had no such withholding
or deduction been required and the undersigned hereby acknowledges that
it is not entitled to and will not seek recovery or restitution of any
amount due to any of the Lenders or Agents and paid by it pursuant to
this clause (c) or pursuant to the next sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, the undersigned will
promptly pay such additional amounts to the Administrative Agent for the account
of such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
Exhibit B-1 - 7
<PAGE>
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.9.
The undersigned shall pay all stamp, transaction, registration and
similar taxes (including financial institutions duties, debit taxes or other
taxes payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if the undersigned fails
to pay any such charges or taxes after reasonable notice from any such Lender or
Agent, fines and penalties) which may be payable or determined to be payable in
relation to the execution, delivery, performance or enforcement of this Guaranty
or any Loan Document or any other transaction contemplated by any Loan Document
to which the undersigned is a party. The undersigned hereby indemnifies each
Lender and Agent against any liability resulting from delay or omission to pay
such charges or taxes except to the extent the liability results from failure by
the relevant Lender or Agent to pay any such tax after having been delivered
funds to do so by the undersigned or to the extent such liability is for fines
and penalties resulting from such Lender's or Agent's failure to provide
reasonable notice to the undersigned as provided herein.
If the undersigned fails to pay any Taxes or Stamp Taxes when due to
the appropriate taxing authority or fails to remit to Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the undersigned shall indemnify Lenders for any Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure, subject to the provisions of Section 2.9.
The undersigned waives any statutory right to recover from any Agent or
any Lender any amount due to any such Agent or Lender and paid by the
undersigned under this Section.
SECTION 2.9. Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Section 2.8 and the
undersigned's obligations with respect thereto, shall be limited and qualified
by and subject to the following:
(a) the undersigned's obligation to pay, satisfy or recognize
such claim shall be limited to costs or losses incurred within one (1)
year immediately prior to any demand or request therefor upon the
undersigned;
(b) each Lender's demand for reimbursement, payment or
indemnity must be limited to that which is being generally applied at
the time by such Lender for comparable guarantors and guaranties
subject to similar provisions;
(c) each Lender which asserts its rights with respect thereto
or which is seeking or imposing such reimbursement, payment or
indemnity shall provide evidence regarding the basis of such claim and
the calculation and application thereof in reasonable detail and, in
determining such amount, each Lender may use reasonable methods of
attribution and averaging; and
Exhibit B-1 - 8
<PAGE>
(d) each Lender which is seeking payment, indemnity or
reimbursement pursuant to Section 2.8 shall, if so requested by the
undersigned use reasonable efforts (subject to the overall policy
considerations of such Lender) to designate a different lending office
hereunder if to do so will avoid the need for, or reduce the amount of,
any such payment, indemnity or reimbursement; provided that, Lender
would, in its sole but reasonable determination, suffer no material
economic, legal or regulatory disadvantage or burden.
[SECTION 2.10. Judgment. Guarantor hereby agrees that:
(a) If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due hereunder in United States Dollars
into another currency, Guarantor agrees, to the fullest extent
permitted by law, that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent
could purchase United States Dollars with such other currency on the
Business Day preceding that on which final judgment is given.
(b) The obligation of Guarantor in respect of any sum due from
it to any Lender Party or any holder of a Note hereunder shall,
notwithstanding any judgment in a currency other than United States
Dollars, be discharged only to the extent that on the Business Day
following receipt by such Lender Party or such holder, as the case may
be, of any sum adjudged to be so due in such other currency such Lender
Party or such holder, as the case may be, may, in accordance with
normal banking procedures, purchase United States Dollars with such
other currency; in the event that the United States Dollars so
purchased are less than the sum originally due to such Lender Party in
United States Dollars, Guarantor, as a separate obligation and
notwithstanding any such judgment, hereby indemnifies and holds
harmless such Lender Party and such holder against such loss, and if
the United States Dollars so purchased exceed the sum originally due to
such Lender Party or such holder in United States Dollars, such Lender
Party or such holder, as the case may be, shall remit to Guarantor such
excess.]
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1. Organization, Existence and Good Standing. Guarantor is
duly organized or incorporated, validly existing and in good standing under the
laws of its jurisdiction of organization or incorporation, having all corporate
or partnership powers required to enter into and carry out the transactions
contemplated hereby. Guarantor is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United States
Exhibit B-1 - 9
<PAGE>
wherein the character of the properties owned or held by it or the nature of the
business transacted by it makes such qualification necessary, except for any
lack of qualification, good standing or authorization that is not reasonably
expected to result in a Material Adverse Effect. Guarantor has taken all actions
customarily taken in order to enter, for the purpose of conducting business or
owning property, each jurisdiction outside the United States wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such actions desirable, except any failure to take such
action that is not reasonably expected to result in a Material Adverse Effect.
SECTION 3.1.2. Authorization. Guarantor has duly taken all corporate,
partnership or shareholder action necessary to authorize the execution and
delivery by it of this Guaranty and to authorize the consummation of the
transactions contemplated hereby and the performance of its obligations
hereunder.
SECTION 3.1.3. No Conflicts or Consents. The execution and delivery by
Guarantor of this Guaranty, the performance by it of its obligations hereunder,
and the consummation of the transactions contemplated by the various Loan
Documents, do not and will not (i) conflict with any provision of the articles
or certificate of incorporation, bylaws, charter, or partnership agreement or
certificate of such Guarantor, or (ii) except as to matters that could not
reasonably be expected to result in a Material Adverse Effect, result in the
acceleration of any Debt owed by such Guarantor, or conflict with any law,
statute, rule, regulation, or agreement, judgment, license, order or permit
applicable to or binding upon such Guarantor, or require the consent, approval,
authorization or order of, or notice to or filing with, any court or
Governmental Authority or third party, or result in or require the creation of
any Lien upon any material assets or properties of such Guarantor, except as
permitted in the Loan Documents.
SECTION 3.1.4. Enforceable Obligations. This Guaranty is the legal,
valid and binding obligation of Guarantor, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors'
rights and by general principles of equity.
ARTICLE IV
COVENANTS
SECTION 4.1. Covenants. Guarantor covenants and agrees that, so long
as any portion of the Obligations of Borrower shall remain unpaid or any Lender
shall have any outstanding Commitment, Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform or comply with the
obligations of a Restricted Subsidiary of Borrower set forth in Sections 5.1 and
5.2 of the Credit Agreements, subject to any limitations on performance or
compliance contained in such sections, including, without limitation, the
limitation, when applicable, that the failure to perform or comply could not
reasonably be expected to have a Material Adverse Effect.
Exhibit B-1 - 10
<PAGE>
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreements and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this Guaranty
shall be binding upon Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and each
holder of a Note, an LC Application, or an interest in an LC Obligation and
their respective successors, transferees and assigns (to the full extent
provided pursuant to Section 2.7); provided, however, that Guarantor may not
assign any of its obligations hereunder without the prior written consent of all
Lenders.
SECTION 5.3. Amendments. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Guarantor at the
address of Guarantor specified on the signature pages hereto and to each Agent
and each Lender at their addresses specified on the signature pages to the
Credit Agreements (unless changed by similar notice in writing given by the
particular Person whose address is to be changed). Any such notice or
communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as
of the date of first attempted delivery at the address provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail,
three days after deposit in the mail, postage prepaid.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Exhibit B-1 - 11
<PAGE>
SECTION 5.6. Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.7. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.8. Governing Law, Entire Agreement. THIS GUARANTY SHALL BE
DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 5.9. Waiver of Jury Trial. EACH OF GUARANTOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH, BEFORE
OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS GUARANTY, THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 5.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND
Exhibit B-1 - 12
<PAGE>
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR
STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER
WITH OFFICES ON THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND,
TEXAS 79701 TO RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS
IN TEXAS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit B-1 - 13
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written but effective as of the Effective Date.
[Name of Guarantor]
By
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit B-1 - 14
<PAGE>
Exhibit B-2
[Form of]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of August 7, 1997, made by
PIONEER NATURAL RESOURCES COMPANY, a Delaware corporation ("Guarantor"), in
favor of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans or
issuing of the initial Letters of Credit under the Credit Agreements, Guarantor
is required to execute and deliver this Guaranty; and
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
Exhibit B-2 - 1
<PAGE>
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Guarantor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
Exhibit B-2 - 2
<PAGE>
"Primary Credit Agreement" is defined in the first recital.
"364 Day Credit Agreement" is defined in the second recital.
SECTION 1.2. Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Primary
Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees
(i) the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of
Borrower now or hereafter existing under the Credit
Agreements, the Notes, the LC Applications and each other Loan
Document to which Borrower is or may become a party, whether
for principal, interest, fees, expenses or otherwise;
(ii)the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future rate swap, rate cap, rate
floor, rate collar, currency exchange transaction, forward
rate agreement, or other exchange or rate protection
agreements or any option with respect to any such transaction
now existing or hereafter entered into between Borrower or any
of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement");
(iii) the payment and performance of any and all
present or future obligations of Borrower according to the
terms of any present or future crude oil, natural gas or other
hydrocarbons swap agreements, crude oil, natural gas or other
hydrocarbons cap, crude oil, natural gas or other hydrocarbons
floor, crude oil, natural gas or other hydrocarbons collar,
crude oil, natural gas or other hydrocarbons exchange
transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil,
natural gas or other hydrocarbons protection agreements or any
option with respect to any such transaction now existing or
hereafter entered into between Borrower or any of its
Subsidiaries and one or more of the Lenders or their
Affiliates; and
Exhibit B-2 - 3
<PAGE>
(iv) all renewals, rearrangements, increases,
extensions for any period, substitutions, modification,
amendments or supplements in whole or in part of any of the
above loan documents or obligations,
(including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. ss.502(b) and ss.506(b)), and (b) indemnifies and holds harmless
strictly in accordance with the terms of the Credit Agreements each
Lender Party and each holder of a Note from Borrower, an LC Application
or any interest in an LC Obligation for any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by such
Lender Party or such holder, as the case may be, in enforcing any
rights under this Guaranty; provided, however, that Guarantor shall
only be liable under this Guaranty for the maximum amount of such
liability that can be hereby incurred without rendering this Guaranty,
as it relates to Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater
amount. This Guaranty constitutes a guaranty of payment when due and
not of collection, and Guarantor specifically agrees that it shall not
be necessary or required that any Lender Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against Borrower or any other Obligor (or any other
Person) before or as a condition to the obligations of Guarantor
hereunder. All payments hereunder are to be made in the currency in
which they are due under the Credit Agreements.
SECTION 2.2. Acceleration of Guaranty. Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower or Guarantor, or the
inability or failure of Borrower or Guarantor to pay debts as they become due,
or an assignment by Borrower or Guarantor for the benefit of creditors, or the
commencement of any case or proceeding in respect of Borrower or Guarantor under
any bankruptcy, insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of Borrower may not then be due and payable,
Guarantor will pay to the Lenders forthwith the full amount which would be
payable hereunder by Guarantor if all such Obligations were then due and
payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of
Borrower have been paid in full, all obligations of Guarantor hereunder shall
have been paid in full and all Commitments shall have terminated. Guarantor
guarantees that the Obligations of Borrower will be paid strictly in accordance
with the terms of the Credit Agreements and each other Loan Document under which
they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender Party or any holder of any Note with respect thereto. The liability of
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
Exhibit B-2 - 4
<PAGE>
(a) (i) any lack of validity, legality or enforceability of
the Credit Agreements, any Note, any LC Application or any other Loan
Document or any portion of any thereof or (ii) the Credit Agreements,
any Note, any LC Application or any other Loan Document or any portion
of any thereof being void or voidable;
(b) the failure of any Lender Party or any holder of any Note,
any LC Application, Letter of Credit or any interest therein
(i) to assert any claim or demand or to enforce any
right or remedy against Borrower, any other Obligor or any
other Person (including any other guarantor) under the
provisions of the Credit Agreements, any Note, any LC
Application, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Obligations of
Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of Borrower or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligations of Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and Guarantor hereby waives
any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations of
Borrower, any other Obligor or otherwise;
(e) any amendment to, extensions of, rescission, waiver, or
other modification of, or any consent to departure from, any of the
terms of the Credit Agreements, any Note, any LC Application, any
Letter of Credit or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Lender Party or any holder of any Note, any LC
Application, any Letter of Credit or interest therein securing any of
the Obligations of Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, Borrower,
any other Obligor, any surety or any guarantor.
Exhibit B-2 - 5
<PAGE>
SECTION 2.4. Reinstatement. Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations guaranteed hereby is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, any LC Application or any interest in an LC Obligation, upon the
insolvency, bankruptcy or reorganization of Borrower, or any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5. Waiver. Guarantor hereby waives promptness, diligence,
presentment, notice of acceptance and any other notice with respect to any of
the Obligations of Borrower or any other Obligor and this Guaranty and any
requirement that any Agent, any other Lender Party or any holder of any Note,
any LC Application, any Letter of Credit or any interest therein protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against Borrower, any other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Obligations of Borrower or any other Obligor, as the
case may be.
SECTION 2.6. Waiver of Subrogation. Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Obligor that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in any
claim or remedy of the Lender Parties against Borrower or any other Obligor or
any collateral which the Collateral Agent now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from Borrower or any other
Obligor, directly or indirectly, in cash or other property or by set-off or in
any manner, payment or security on account of such claim or other rights. If any
amount shall be paid to Guarantor in violation of the preceding sentence and the
Obligations shall not have been paid in cash in full and the Commitments have
not been terminated, such amount shall be deemed to have been paid to Guarantor
for the benefit of, and held in trust for, the Lender Parties, and shall
forthwith be paid to the Lender Parties to be credited and applied upon the
Obligations, whether matured or unmatured; otherwise it shall be returned to
remitter. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreements
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes.
This Guaranty shall:
(a) be binding upon Guarantor, and its successors, transferees
and assigns (provided, however, that Guarantor may not assign any of
its obligations hereunder without the prior written consent of all
Lenders); and
(b) inure to the benefit of and be enforceable by each Agent
and each other Lender Party.
Exhibit B-2 - 6
<PAGE>
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note, Loan, LC
Application, Letter of Credit or interest therein held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 8.8 of the Credit Agreements.
SECTION 2.8. Taxes. All payments by the undersigned hereunder shall
be made free and clear of and without deduction for any present or future
income, excise, stamp, or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by any
Lender's net income or receipts (such non-excluded items being called "Taxes").
In the event that any withholding or deduction from any payment to be made
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then, subject to the provisions of Section 2.9, the
undersigned will:
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to Administrative Agent an official
receipt or other documentation satisfactory to Administrative Agent
evidencing such payment to such authority; and
(c) pay to Administrative Agent for the account of the
applicable Lender(s) such additional amount(s) as is necessary to
ensure that the net amount actually received by each Lender will equal
the full amount such Lender would have received had no such withholding
or deduction been required and the undersigned hereby acknowledges that
it is not entitled to and will not seek recovery or restitution of any
amount due to any of the Lenders or Agents and paid by it pursuant to
this clause (c) or pursuant to the next sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, the undersigned will
promptly pay such additional amounts to the Administrative Agent for the account
of such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.9.
The undersigned shall pay all stamp, transaction, registration and
similar taxes (including financial institutions duties, debit taxes or other
taxes payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if the undersigned fails
to pay any such charges or taxes after reasonable notice from any such Lender
Exhibit B-2 - 7
<PAGE>
or Agent, fines and penalties) which may be payable or determined to be payable
in relation to the execution, delivery, performance or enforcement of this
Guaranty or any Loan Document or any other transaction contemplated by any Loan
Document to which the undersigned is a party. The undersigned hereby indemnifies
each Lender and Agent against any liability resulting from delay or omission to
pay such charges or taxes except to the extent the liability results from
failure by the relevant Lender or Agent to pay any such tax after having been
delivered funds to do so by the undersigned or to the extent such liability is
for fines and penalties resulting from such Lender's or Agent's failure to
provide reasonable notice to the undersigned as provided herein.
If the undersigned fails to pay any Taxes or Stamp Taxes when due to
the appropriate taxing authority or fails to remit to Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the undersigned shall indemnify Lenders for any Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure, subject to the provisions of Section 2.9.
The undersigned waives any statutory right to recover from any Agent or
any Lender any amount due to any such Agent or Lender and paid by the
undersigned under this Section.
SECTION 2.9. Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Section 2.8 and the
undersigned's obligations with respect thereto, shall be limited and qualified
by and subject to the following:
(a) the undersigned's obligation to pay, satisfy or recognize
such claim shall be limited to costs or losses incurred within one (1)
year immediately prior to any demand or request therefor upon the
undersigned;
(b) each Lender's demand for reimbursement, payment or
indemnity must be limited to that which is being generally applied at
the time by such Lender for comparable guarantors and guaranties
subject to similar provisions;
(c) each Lender which asserts its rights with respect thereto
or which is seeking or imposing such reimbursement, payment or
indemnity shall provide evidence regarding the basis of such claim and
the calculation and application thereof in reasonable detail and, in
determining such amount, each Lender may use reasonable methods of
attribution and averaging; and
(d) each Lender which is seeking payment, indemnity or
reimbursement pursuant to Section 2.8 shall, if so requested by the
undersigned use reasonable efforts (subject to the overall policy
considerations of such Lender) to designate a different lending office
hereunder if to do so will avoid the need for, or reduce the amount of,
any such payment, indemnity or reimbursement; provided that, Lender
would, in its sole but reasonable determination, suffer no material
economic, legal or regulatory disadvantage or burden.
Exhibit B-2 - 8
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1. Organization, Existence and Good Standing. Guarantor
is duly organized or incorporated, validly existing and in good standing under
the laws of its jurisdiction of organization or incorporation, having all
corporate or partnership powers required to enter into and carry out the
transactions contemplated hereby. Guarantor is duly qualified, in good standing,
and authorized to do business in all other jurisdictions within the United
States wherein the character of the properties owned or held by it or the nature
of the business transacted by it makes such qualification necessary, except for
any lack of qualification, good standing or authorization that is not reasonably
expected to result in a Material Adverse Effect. Guarantor has taken all actions
customarily taken in order to enter, for the purpose of conducting business or
owning property, each jurisdiction outside the United States wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such actions desirable, except any failure to take such
action that is not reasonably expected to result in a Material Adverse Effect.
SECTION 3.1.2. Authorization. Guarantor has duly taken all corporate,
partnership or shareholder action necessary to authorize the execution and
delivery by it of this Guaranty and to authorize the consummation of the
transactions contemplated hereby and the performance of its obligations
hereunder.
SECTION 3.1.3. No Conflicts or Consents. The execution and delivery
by Guarantor of this Guaranty, the performance by it of its obligations
hereunder, and the consummation of the transactions contemplated by the various
Loan Documents, do not and will not (i) conflict with any provision of the
articles or certificate of incorporation, bylaws, charter, or partnership
agreement or certificate of such Guarantor, or (ii) except as to matters that
could not reasonably be expected to result in a Material Adverse Effect, result
in the acceleration of any Debt owed by such Guarantor, or conflict with any
law, statute, rule, regulation, or agreement, judgment, license, order or permit
applicable to or binding upon such Guarantor, or require the consent, approval,
authorization or order of, or notice to or filing with, any court or
Governmental Authority or third party, or result in or require the creation of
any Lien upon any material assets or properties of such Guarantor, except as
permitted in the Loan Documents.
SECTION 3.1.4. Enforceable Obligations. This Guaranty is the legal,
valid and binding obligation of Guarantor, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors'
rights and by general principles of equity.
SECTION 3.1.5. Solvency. Guarantor is solvent and will continue to be
solvent after the making of this Guaranty.
Exhibit B-2 - 9
<PAGE>
ARTICLE IV
COVENANTS
SECTION 4.1. Affirmative Covenants. Guarantor covenants and agrees
that, so long as any portion of the Obligations shall remain unpaid or any
Lender Party shall have any outstanding Commitment, the Guarantor will, unless
the Required Lenders shall otherwise consent in writing, perform, comply with,
observe and fulfill, for the benefit of the Lender Parties, each of the
covenants, agreements and obligations pertaining or otherwise applicable to
Guarantor contained in Section 5.1 of the Credit Agreement, including, without
limitation, the delivery of financial reports and notices described in Section
5.1(b) of the Credit Agreement. Guarantor hereby irrevocably and unconditionally
agrees to be bound by, and not to breach or otherwise fail to comply with, any
of such covenants, agreements and obligations as if Guarantor were a party to
the Credit Agreement and such covenants, agreements and obligations are hereby
reaffirmed by the Guarantor and are, together with all related definitions and
ancillary provisions incorporated herein by reference hereby and made a part
hereof for all purposes as if set out in full herein.
SECTION 4.2. Financial Covenants. Guarantor covenants and agrees
that, so long as any portion of the Obligations shall remain unpaid or any
Lender Party shall have any outstanding Commitment, Guarantor will, unless the
Required Lenders shall otherwise consent in writing, perform, comply with,
observe and fulfill, for the benefit of the Lender Parties, each of the
covenants, agreements and obligations pertaining to or otherwise applicable to
Guarantor contained in Section 5.3 of the Credit Agreement. Guarantor hereby
irrevocably and unconditionally agrees to be bound by, and not to breach or
otherwise fail to comply with, any of the provisions in any of such covenants,
agreements and obligations as if Guarantor were a party to the Credit Agreement
and such covenants, agreements and obligations are hereby reaffirmed by
Guarantor and are, together with all related definitions and ancillary
provisions incorporated herein by reference hereby and made a part hereof for
all purposes as if set out in full herein.
SECTION 4.3. Negative Covenants. Guarantor covenants and agrees
that, so long as any portion of the Obligations shall remain unpaid or any
Lender Party shall have any outstanding Commitment, Guarantor will, unless the
Required Lenders shall otherwise consent in writing, perform, comply with,
observe and fulfill, for the benefit of the Lender Parties, each of the
covenants, agreements and obligations pertaining to or otherwise applicable to
Guarantor contained in Section 5.2 of the Credit Agreement. Guarantor hereby
unconditionally and irrevocably agrees to be bound by, and not to breach or
otherwise fail to comply with, any of such covenants, agreements and obligations
to the extent such provisions pertain to Guarantor and such covenants,
agreements and obligations are hereby reaffirmed by Guarantor and, together with
all related definitions and ancillary provisions are incorporated herein by
reference hereby made a part hereof for all purposes as if set out in full
herein.
Exhibit B-2 - 10
<PAGE>
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreements and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this Guaranty
shall be binding upon Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and each
holder of a Note, an LC Application, or an interest in an LC Obligation and
their respective successors, transferees and assigns (to the full extent
provided pursuant to Section 2.7); provided, however, that Guarantor may not
assign any of its obligations hereunder without the prior written consent of all
Lenders.
SECTION 5.3. Amendments. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by Guarantor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 5.4. Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Guarantor at the
address of Guarantor specified on the signature pages hereto and to each Agent
and each Lender at their addresses specified on the signature pages to the
Credit Agreements (unless changed by similar notice in writing given by the
particular Person whose address is to be changed). Any such notice or
communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as
of the date of first attempted delivery at the address provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail,
three days after deposit in the mail, postage prepaid.
SECTION 5.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Exhibit B-2 - 11
<PAGE>
SECTION 5.6. Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.7. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.8. Governing Law, Entire Agreement. THIS GUARANTY SHALL BE
DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 5.9. Waiver of Jury Trial. EACH OF GUARANTOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH, BEFORE
OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS GUARANTY, THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 5.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
Exhibit B-2 - 12
<PAGE>
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR
STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER
WITH OFFICES ON THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND,
TEXAS 79701 TO RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS
IN TEXAS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit B-2 - 13
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written but effective as of the Effective Date.
PIONEER NATURAL RESOURCES
COMPANY
By:
------------------------
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit B-2 - 14
<PAGE>
Exhibit C
Form of Request for Advance
,
------- -----
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Request for Advance - Primary Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Terms which are defined in the
Credit Agreement and which are used but not defined herein are used herein with
the meanings ascribed to them in the Credit Agreement. Pursuant to the terms of
the Credit Agreement, the undersigned Borrower hereby requests that Lenders make
Advances to the undersigned Borrower in the aggregate principal amount of
$ , specifies , , as the date the undersigned Borrower desires
for Lenders to make such Advances and requests that Administrative Agent deliver
to the undersigned Borrower the proceeds thereof on such date.
To induce Lenders to make such Advances, the undersigned Borrower
hereby represents, warrants, acknowledges, and agrees to and with each Agent and
each Lender that:
(a) The Designated Officer of Borrower signing this instrument is a
duly elected, qualified and acting officer of the undersigned Borrower, holding
the office indicated below such officer's signature hereto and having all
necessary authority to act for the undersigned Borrower in making and delivering
this Request for Advance.
(b) The representations and warranties of the undersigned Borrower and
each other Obligor set forth in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof, with the same
effect as though such representations and warranties had been made on and as of
the date hereof.
(c) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement; nor will any such Default exist Agreement;
Exhibit C - 1
<PAGE>
nor will any such Default exist upon the undersigned Borrower's receipt and
application of the Advances requested hereby. The undersigned Borrower will use
the Advances hereby requested in compliance with the Credit Agreement.
(d) Except to the extent waived in writing as provided in Section 6.1
of the Credit Agreement, the undersigned Borrower has performed and complied
with all agreements and conditions in the Credit Agreement required to be
performed or complied with by the undersigned Borrower on or prior to the date
hereof, and each of the conditions precedent to Advances contained in the Credit
Agreement remains satisfied.
(e) The aggregate unpaid principal balance of the Advances under the
Facility after the making of such Advance requested hereby, plus the aggregate
outstanding amount of LC Obligations and Swing Line Advances and Competitive Bid
Advances at the date hereof will not be in excess of the Facility Amount on the
date requested for the making of such Advances.
(g) The Loan Documents have not been modified, amended or supplemented
by any unwritten representations or promises, by any course of dealing, or by
any other means not provided for in Section 8.1 of the Credit Agreement. The
Credit Agreement and the other Loan Documents are hereby ratified, approved, and
confirmed in all respects.
The undersigned Borrower agrees that if, prior to the time of the
Advances requested hereby, any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify
Administrative Agent. Except to the extent, if any, that, prior to the time of
the Advances requested hereby, Administrative Agent shall have received written
notice from the undersigned Borrower to the contrary, each matter certified
herein shall be deemed once again to be certified as true and correct as of the
date of such Advances as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his knowledge, the above
representations, warranties, acknowledgments and agreements of the undersigned
Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Exhibit C - 2
<PAGE>
Exhibit D
Form of Rate Election
------- , -----
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Rate Election - Primary Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Terms which are defined in the
Credit Agreement and which are used but not defined herein are used herein with
the meanings ascribed to them in the Credit Agreement. Pursuant to the terms of
the Credit Agreement, the undersigned Borrower hereby elects a Tranche of
Eurodollar Portions in the aggregate amount of $ with an Interest Period
beginning on and continuing for a period of .
To satisfy the conditions set out in the Credit Agreement for the
making of such election, the undersigned Borrower hereby represents, warrants,
acknowledges and agrees that:
(a) The Designated Officer of the undersigned Borrower signing this
instrument is a duly elected, qualified and acting officer of such Borrower,
holding the office indicated below such officer's signature hereto and having
all necessary authority to act for such Borrower in making and delivering this
Rate Election.
(b) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement.
(c) The Loan Documents have not been modified, amended or supplemented
by any unwritten representations or promises, by any course of dealing, or by
any other means not provided for in Section 8.1 of the Credit Agreement. The
Exhibit D - 1
<PAGE>
Credit Agreement and the other Loan Documents are hereby ratified, approved, and
confirmed in all respects.
(d) The undersigned Borrower further agrees that if, on or prior to the
date of the commencement of the Interest Period designated herein, any matter
certified herein by it will not be true and correct at such time as if such
certification were then made, it will immediately so notify Administrative
Agent. Except to the extent, if any, that prior to the commencement of the
Interest Period designated herein Administrative Agent shall receive written
notice to the contrary from the undersigned Borrower, each matter certified
herein shall be deemed to be certified as of the date of the commencement of
such Interest Period as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his knowledge, the above
representations, warranties, acknowledgments and agreements of the undersigned
Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Exhibit D - 2
<PAGE>
Exhibit E
Form of Request for Swing Line Bid
VIA FACSIMILE #
[NAME AND ADDRESS OF LENDER]
Reference is made to the Primary Facility pursuant to that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"),. Capitalized
terms used herein and not otherwise defined herein shall have the meaning
assigned in the Credit Agreement. In accordance with Section 2.5, the
undersigned hereby requests a Swing Line Bid in an amount of not less than
$ to be advanced today, . We request this advance be for
a period of day(s), maturing on .
If you wish to submit a Swing Line Bid, please do so in accordance with Section
2.5 of the Credit Agreement.
If you have any questions regarding this request, please contact the undersigned
at (915) , or Frank K. Stowers at (915) 685-2179.
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Exhibit E - 1
<PAGE>
Exhibit F
Form of Swing Line Bid
,
--------- -----
VIA FAX (915)571-5696
Pioneer Natural Resources USA, Inc.
303 W. Wall, Suite 101
Midland, Texas 79701
Attn: Curt Kamradt
VIA FAX (214)508-2515
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Gentlemen:
Reference is made to the Primary Facility pursuant to that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned in the Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement, the undersigned
Lender offers to make a Swing Line Advance to today in the following
principal amount, bearing interest at the rate and maturing as stated:
Principal Amount $ Interest Rate Maturity
------------ ------------ -----------
[Name of Bank]
By:
Name:
Title:
Exhibit F - 1
<PAGE>
Exhibit G
Form of Acceptance Notice
, 19
---------- --
VIA FACSIMILE #214/508-2515
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Notice of Acceptance of Swing Line Bid(s) - Primary Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement and in response
to the Swing Line Bid(s) received today, the undersigned hereby accepts the
following bid(s). Swing Line Advance(s) must be funded and wired to
Administrative Agent by no later than 2:00 p.m.
(Dallas, Texas time) today.
Lender Principal Amount Interest Rate Maturity Date
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Exhibit G - 1
<PAGE>
Exhibit H
Form of Opinion of Borrower's and Restricted Subsidiaries' Counsel
Exhibit H has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Exhibit H - 1
<PAGE>
Exhibit I
Organization Chart of Parent, Borrower and Its Subsidiaries
Exhibit I has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Exhibit I - 1
<PAGE>
Exhibit J
Form of Designated Officer's Certificate
Reference is made to (i) the Primary Facility pursuant to that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Primary Credit Agreement") and
(ii) the 364 Day Facility pursuant to that certain Credit Facility Agreement
dated as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A.,
as Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty
Trust Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "364 Day Credit Agreement" and, together with the
Primary Facility, the "Credit Agreements") Terms which are defined in the Credit
Agreements and which are used but not defined herein are used herein with the
meanings given them in the Credit Agreements.
This Certificate is furnished pursuant to Section 5.1(b)(2) of the
Credit Agreements. Together herewith the Borrower is furnishing to Managing
Agents, the Co-Agents and each Lender the Parent's [Financial Statements] (the
"Financial Statements") as of (the "Reporting Date"). The Borrower
hereby represents, warrants, and acknowledges to Agents and each Lender that:
(a) the Designated Officer of the Borrower signing this instrument
is a duly elected, qualified and acting officer of the
Borrower;
(b) the Financial Statements are accurate and complete and satisfy
the requirements of the Credit Agreements;
(c) attached as Schedule I hereto is a schedule of calculations
showing compliance (or noncompliance, as the case may be) as
of the Reporting Date with the requirements of Section 5.3 of
the Credit Agreements; and
(d) on the Reporting Date, each Borrower was, and on the date
hereof the Borrower is, in full compliance with the disclosure
requirements of Section 5.1(d) of the Credit Agreements, and
no Default otherwise existed on the Reporting Date or
otherwise exists on the date of this Certificate [except for
Default(s) under Section(s) of the Credit Agreements,
which [is/are] more fully described on a schedule attached
hereto].
Exhibit J - 1
<PAGE>
The Designated Officer of the Borrower signing this instrument hereby
certifies that he has reviewed the Loan Documents and the Financial Statements
and has otherwise undertaken such inquiry as is in his opinion necessary to
enable him to express an informed opinion with respect to the above
representations, warranties and acknowledgments of the Borrower and, to the best
of his knowledge, such representations, warranties, and acknowledgments are
true, correct and complete.
PIONEER NATURAL RESOURCES USA,
INC.
By:
Name:
Title:
Date:
Exhibit J - 2
<PAGE>
Schedule I
================================================================================
COMPLIANCE WITH FINANCIAL COVENANTS AS OF . ($ in 000's)
-------------
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO
========
Minimum ratio allowed 3.75
========
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION ========
Maximum ratio allowed 60%
========
================================================================================
COMPUTATION OF FINANCIAL REQUIREMENTS AND RATIOS AS OF
--------
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO
(Section 5.3(a)) ($ in 000's)
(i) EBITDAX (as defined in Section 5.3(a))
For the period ended , the sum of the
amounts for such period of Consolidated net income,
Consolidated Interest Expense, depreciation
expense, depletion expense, amortization expense,
federal and state income taxes, exploration and
abandonment expense and other non-cash charges
and expenses, all as determined on a Consolidated
basis for Parent and its Consolidated Subsidiaries; $
----------
(ii) CONSOLIDATED INTEREST EXPENSE
(as defined in Section 5.3(a))
For the period ended , total interest
expense, whether paid or accrued, of Parent and its
Consolidated Subsidiaries on a Consolidated basis,
including, without limitation, all commissions,
discounts and other fees and charges owed with
respect to Letters of Credit. $
----------
CONSOLIDATED INTEREST EXPENSE $
==========
EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO ((i)(ii)) $
==========
Minimum ratio allowed 3.75:1
========
Exhibit J - 3
<PAGE>
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION (Section 5.3(b)) ($ in 000's)
(i) CONSOLIDATED TOTAL FUNDED DEBT
(as defined in Section 1.1)
(a) All indebtedness of Borrower and its
Consolidated Subsidiaries for borrowed
money $
----------
(b) Plus indebtedness of Parent and its
Consolidated Subsidiaries constituting
an obligation to pay the deferred
purchase price of property or services
(other than customary payment terms
taken in the ordinary course of the
business) $
----------
(c) Plus indebtedness of Parent and its
Consolidated Subsidiaries evidenced by
a bond, debenture, note or similar
instrument $
----------
(d) Plus principal obligations under leases
capitalized in accordance with GAAP
under which either Parent or any of its
Consolidated Subsidiaries is the lessee $
----------
(e) Plus indebtedness or obligations of the
type described in clauses (a), (b), (c)
or (d) of the definition of Debt, which
are secured by a Lien on any property
owned by Parent or any of its
Consolidated Subsidiaries, whether or
not such indebtedness or obligations
have been assumed by Parent or any of
its Consolidated Subsidiaries (limited
however to the lesser of (1) the amount
of its liability or (2) the value of
such property) (excluding Debt of the
type referred to in clause (e) of the
definition of "Debt) $
----------
(f) Plus the undischarged balance of any
production payment created by Parent or
any of its Consolidated Subsidiaries or
for the creation of which Parent or its
Consolidated Subsidiaries directly or
indirectly received payment. $
----------
CONSOLIDATED TOTAL FUNDED DEBT $
==========
Exhibit J - 4
<PAGE>
(ii) TOTAL CAPITALIZATION (as defined in Section 1.1)
(a) Consolidated Total Funded Debt of the
Parent and its Consolidated Subsidiaries
(See B(i) above) $
----------
(b) Plus Consolidated shareholders' equity
of the Parent and its Consolidated
Subsidiaries $
----------
TOTAL CAPITALIZATION $
==========
CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION((i)/(ii)) %
==========
Maximum ratio 60 %
==========
Exhibit J - 5
<PAGE>
Exhibit K-1
Form of Election to Convert
,
-------- -----
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Conversion of Restricted Subsidiary
Gentlemen:
Reference is made to (i) that certain Credit Facility Agreement dated
as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Primary Credit Agreement") and (ii) that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "364 Day Credit Agreement" and,
together with the Primary Credit Agreement, the "Credit Agreements"). Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meanings provided therein.
The Borrower hereby elects, pursuant and subject to Section 5.2(i) of
the Credit Agreements, to convert, effective as of , ,
[name of Restricted Subsidiary], a [jurisdiction] [corporation] [partnership],
("Subject Subsidiary"), from a Restricted Subsidiary to an Unrestricted
Subsidiary. The Borrower hereby certifies that all requirements for the
conversion of the Subject Subsidiary to an Unrestricted Subsidiary, as specified
in the Credit Agreements, have been and will be met, both as of the date hereof
and after giving effect to such conversion. After giving effect to such
conversion, no Default will exist. The Borrower hereby agrees that the election
to convert contained herein shall not be effective if the foregoing
certifications are not true and correct in all respects as of the date hereof or
are not true and correct in all respects as of the date of such conversion. This
election to convert shall not affect any obligation of the Borrower under the
Credit Agreements or under any Note under any Credit Agreement.
Exhibit K-1 - 1
<PAGE>
This instrument shall be construed in accordance with and governed by
the laws of the State of Texas.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Receipt of the above Election to Convert is hereby acknowledged on
, .
- --------------- --------
NATIONSBANK OF TEXAS, N.A., as
Administrative Agent
By:
Name:
Title:
Exhibit K-1 - 2
<PAGE>
Exhibit K-2
Form of Release
This Release is delivered to [name of subsidiary] in connection with
(i) the Primary Facility pursuant to Section 5.2(i) of that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Primary Credit Agreement"), and
(ii) the 364 Day Facility pursuant to Section 5.2(i) of that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "364 Day Credit Agreement" and,
together with the Primary Credit Agreement, the "Credit Agreements"). Defined
terms used in this Release shall be used with the same meanings set forth in the
Credit Agreements.
Pursuant to the election to convert in the form of Exhibit K-1 to the
Credit Agreements delivered to Administrative Agent on , 19 , the
Borrower has notified the Lenders that it has converted
[Name of Subsidiary] from a Restricted Subsidiary to an Unrestricted Subsidiary.
Subject to the accuracy of the information contained in such notice of
conversion, the undersigned Managing Agents and Lenders hereby release
[Name of former Restricted Subsidiary] from its obligations as
Guarantor under its Guaranty dated as of , 199 , as from time to time
amended, modified and supplemented, other than obligations if any, pursuant to
Section thereof.
This Release may be separately executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so
executed shall be deemed to constitute one and the same release.
[Add signature lines for Lenders and Managing Agents]
Agreed and Accepted
this day of , 199 :
----- ----------- ---
- -------------------------------
[Name of Restricted Subsidiary]
By:
Name:
Title:
Exhibit K-2 - 1
<PAGE>
Exhibit L
Form of Agreement to be Bound
, 199
------- --
PIONEER NATURAL RESOURCES USA, INC.
303 West Wall, Suite 101
Midland, Texas 79701
Attention: Curt F. Kamradt
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Ruth De la Garza
NationsBank of Texas, N.A.
303 West Wall Street
Midland, Texas 79701
Attn: Frank K. Stowers
CIBC Inc.
2 Houston Center
909 Fannin Street, Suite 1200
Houston, Texas 77010
Attention: Paul Jordan
Re: Assignment to of the Loans of
------------------ ----------------------
- Primary Facility
--------------
Gentlemen:
We refer to Section 8.8(a) of that certain Credit Facility Agreement
dated as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
This Credit Agreement to be Bound constitutes notice to each of you,
pursuant to Section 8.8(a) of the Credit Agreement, of the assignment to
("Assignee") of (i) an undivided (the "Designated
Percentage"), ($ ), of the Loans, LC Obligations and Commitments of
[NAME OF LENDER] ("Assignor") in effect on the date hereof.
Exhibit L - 1
<PAGE>
After giving effect to the foregoing assignment, the Loan Commitment
and Percentage Share of each of the Assignor and Assignee is as set forth
beneath the signatures of each such Person below.
Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with a copy
of all documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans and issuing Letters of Credit
thereunder. Assignee further confirms and agrees that in becoming a Lender and
in making its Loans and participating in Letters of Credit under the Credit
Agreement, such actions have and will be made without recourse to, or
representation or warranty by, Assignor, except as expressly set forth in the
Assignment and Assumption of even date herewith between Assignor and Assignee.
Assignor and Assignee hereby agree that [Assignor/Assignee] will pay
the processing fee referred to in Section 8.8(a) of the Credit Agreement to
Administrative Agent upon the delivery thereof. It is understood and agreed that
all fees accrued under the Credit Agreement to the date hereof are for
Assignor's account and those accruing from and after the date hereof are for
Assignee's account to the extent specified in the second paragraph hereof. Each
of Assignor and Assignee hereby agree that if it receives any amount under the
Credit Agreement which is for the account of the other, it shall receive and
hold the same for the account of the other and shall promptly pay the same to
the other.
The assignment shall become effective upon (i) the receipt by the
Borrower and Administrative Agent of this document, (ii) the receipt by
Administrative Agent of the processing fee referred to in the preceding
paragraph, and (iii) in accordance with Section 8.8(a) of the Credit Agreement,
the consent of the Borrower and Administrative Agent.
Upon the effective date of this Credit Agreement the Assignee:
(a) shall have all rights and benefits of a "Lender" under the Credit
Agreement as if it were an original signatory thereto to the extent specified in
the second paragraph hereof; and
(b) agrees to be bound by the terms and conditions of each of the
Credit Agreement, and be obligated thereunder, and hereby makes each of the
representations and warranties and acknowledgments contained in such documents
as if it were an original signatory thereto.
Upon the effective date of this Agreement, the Assignor shall be
released from its obligations under the Credit Agreement and the other Loan
Documents to the extent specified in the second paragraph.
Exhibit L - 2
<PAGE>
Assignee hereby advises each of you of the following matters with
respect to the assigned Loans:
(A) Addresses for Notice:
------------------
Telephone:
Telecopy:
Institution Name:
Attention:
(B) Payment Instructions:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
This Credit Agreement may be executed by Assignor and Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
The execution below by the Borrower and Administrative Agent shall
evidence their consent to this Agreement in accordance with Section 8.8(a) of
the Credit Agreement.
Exhibit L - 3
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed by its official, officer or agent thereunto duly authorized,
effective as of , .
- ------------------------ --------------------------
As Assignor As Assignee
By: By:
Name: Name:
Title: Title:
Percentage Share: % Percentage Share: %
Loan Commitment: Loan Commitment:
APPROVED:
PIONEER NATURAL RESOURCES USA, INC. NATIONSBANK OF TEXAS, N.A.
By: By:
Name: Name:
Title: Title:
Exhibit L - 4
<PAGE>
Exhibit M
[Form of]
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of ,
199 , made by , a corporation ("Pledgor"), in favor
of NATIONSBANK OF TEXAS, N.A., as collateral agent (together with any
successor(s) thereto in such capacity, the "Collateral Agent") for each of
Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as
of August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as
of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, pursuant to the Credit Agreements, Pledgor is required to
execute and deliver this Pledge Agreement; and
WHEREAS, Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of Pledgor to execute this
Pledge Agreement inasmuch as Pledgor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
Exhibit M - 1
<PAGE>
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Pledgor agrees, for the benefit of each Lender Party,
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Collateral Agent" is defined in the preamble.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock or security entitlements constituting Collateral, but shall not
include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made in the ordinary course of business and not a liquidating
dividend.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
Exhibit M - 2
<PAGE>
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"1994 Amendments" means the 1994 Amendments to Articles 8 and 9 of the
Uniform Commercial Code promulgated by the American Law Institute and the
National Conference of Commissions for Uniform State Laws.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Pledge Agreement" is defined in the preamble.
"Pledged Share Issuer" means each Person identified in Attachment 1
hereto as the issuer of the Pledged Shares identified opposite the name of such
Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by Pledgor to Collateral Agent hereunder and all
other pledged shares of capital stock from time to time hereafter delivered by
Pledgor to Collateral Agent for the purpose of pledge under this Pledge
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledgor" is defined in the preamble.
"Primary Credit Agreement" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"364 Day Credit Agreement" is defined in the second recital.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Pledge
Agreement, including its preamble and recitals, have the meanings provided in
the Primary Credit Agreement.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or
the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Pledge Agreement, including its preamble and recitals,
with such meanings.
Exhibit M - 3
<PAGE>
ARTICLE II
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to Collateral
Agent, for its benefit and the ratable benefit of each of Lender Parties, and
hereby grants to Collateral Agent, for its benefit and the ratable benefit of
Lender Parties, a continuing security interest in, all of the following property
(the "Collateral"):
(a) 65% of the issued and outstanding shares of capital stock of each
Pledged Share Issuer identified in Item B of Attachment 1 hereto;
(b) 65% of all other Pledged Shares issued from time to time;
(c) all Dividends, Distributions, interest, and other payments and rights
with respect to any Pledged Shares; and
(d) all proceeds of any of the foregoing.
SECTION 2.2 Security for Obligations. This Pledge Agreement secures:
(a) the payment in full of all Obligations of Borrower now or hereafter
existing under the Credit Agreements, the Notes, the LC Applications
and each other Loan Document to which Borrower is or may become a
party, whether for principal, interest, costs, fees, expenses, or
otherwise, and all obligations of Pledgor and each other Obligor now
or hereafter existing under this Pledge Agreement and each other Loan
Document to which it is or may become a party
(b) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future rate swap, rate cap, rate floor, rate collar, currency exchange
transaction, forward rate agreement, or other exchange or rate
protection agreements or any option with respect to any such
transaction now existing or hereafter entered into between Borrower or
any of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement";
(c) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future crude oil, natural gas or other hydrocarbons swap agreements,
crude oil, natural gas or other hydrocarbons cap, crude oil, natural
gas or other hydrocarbons floor, crude oil, natural gas or other
hydrocarbons collar, crude oil, natural gas or other hydrocarbons
exchange transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil, natural gas or
other hydrocarbons protection agreements or any option with respect to
any such transaction now existing or hereafter entered into between
Borrower or any of its Subsidiaries and one or more of the Lenders or
their Affiliates; and
Exhibit M - 4
<PAGE>
(d) all renewals, rearrangements, increases, extensions for any period,
substitutions, modification, amendments or supplements in whole or in
part of any of the above loan documents or obligations
(all such obligations of Borrower and Pledgor being the "Secured Obligations").
SECTION 2.3 Delivery of Pledged Shares. (a) All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares shall be delivered to and held by or on behalf of Collateral Agent
pursuant hereto, shall be in suitable form for transfer by delivery, and shall
be accompanied by all necessary indorsements or instruments of transfer or
assignment, duly executed in blank.
(b)
(i) To the extent any of the Collateral constitutes
"uncertificated securities" (as defined in Section 8-102(a)(18) of the
U.C.C. or Section 8-102 of the Uniform Commercial Code as in effect in
any jurisdiction that has not adopted the 1994 Amendments) and the
issuer of which is organized in a jurisdiction, or has selected a
jurisdiction (in circumstances permitted by Section 8-110(d) of the
U.C.C.), that has not enacted the 1994 Amendments, Pledgor shall cause
the issuer thereof to acknowledge to Collateral Agent the registration
on the books of such issuer of the pledge and security interest hereby
created in the manner required by Section 8-408(d) of the Uniform
Commercial Code of its jurisdiction of organization.
(ii) To the extent any of the Collateral constitutes
"uncertificated securities" (as defined in Section 8-102(a)(18) of the
U.C.C.) and the issuer of which is organized in a jurisdiction, or has
selected a jurisdiction (in circumstances permitted by Section 8-110(d)
of the U.C.C.), that has enacted the 1994 Amendments, Pledgor shall
cause the issuer thereof to acknowledge to Collateral Agent the
registration on the books of such issuer of the pledge and security
interest hereby created in the manner required by Section 8- 301(1)(b)
of the U.C.C.
(c)
(i) To the extent any of the Collateral constitutes a
"security entitlement" or a "securities account" (as such terms are
defined in Sections 8-102(a)(17) and 8-501, respectively, of the
U.C.C.) and the jurisdiction of the securities intermediary (as
described in Section 8-110(e) of the U.C.C.) against which such
securities entitlement is established or at which such securities
account is maintained is not a jurisdiction that has adopted the 1994
Amendments, Pledgor shall cause such Collateral to be transferred to
Collateral Agent pursuant to Section 8-313(1) of the Uniform Commercial
Code as in effect in such jurisdiction in a manner satisfactory to
Collateral Agent.
Exhibit M - 5
<PAGE>
(ii) To the extent any of the Collateral constitutes a
"security entitlement" or a "securities account" (as such terms are
defined in Sections 8-102(a)(17) and 8-501, respectively, of the
U.C.C.) and the jurisdiction of the securities intermediary (as
described in Section 8-110(e) of the U.C.C.) against which such
securities entitlement is established or at which such securities
account is maintained is a jurisdiction that has adopted the 1994
Amendments, Pledgor shall cause to be delivered to Collateral Agent an
agreement, in form and substance satisfactory to Collateral Agent,
executed by such securities intermediary whereby such securities
intermediary agrees (i) that it will comply with entitlement orders
originated by Collateral Agent without further consent by Pledgor with
respect to all such Collateral (it being understood that such agreement
may provide that at all times when such securities intermediary has not
been notified that a Default is in existence, the securities
intermediary may comply with entitlement orders of Pledgor), (ii) to
subordinate any security interest it may have in and to all such
Collateral to the security interest of Collateral Agent therein and
(iii) that it will not agree with any Person other than Collateral
Agent in any manner that would grant such Person "control" over any
such Collateral.
SECTION 2.4 Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share or securities entitlement at a time
when (x) no Default has occurred and is continuing, and no (y) Event of Default
has occurred and is continuing, such Dividend or payment may be paid directly to
Pledgor. If any such Default or Event of Default has occurred and is continuing,
then any such Dividend or payment shall be paid directly to Collateral Agent.
SECTION 2.5 Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full of
all Secured Obligations and the termination of all Commitments,
(b) be binding upon Pledgor and its successors, transferees
and assigns, and
(c) inure, together with the rights and remedies of Collateral
Agent hereunder, to the benefit of Collateral Agent and each other
Lender Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 8.8 of the Credit Agreements and Article VII of the Credit
Agreements. Upon the payment in full of all Secured Obligations and the
Exhibit M - 6
<PAGE>
termination of all Commitments, the security interest granted herein shall
terminate and all rights to the Collateral shall revert to Pledgor. Upon any
such termination, Collateral Agent will, at Pledgor's sole expense, deliver to
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares, together with all other Collateral held by Collateral Agent
hereunder, and execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence such termination.
SECTION 2.6 Security Interest Absolute. All rights of Collateral
Agent and the security interests granted to Collateral Agent hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional,
irrespective of (a) any lack of validity or enforceability of the Credit
Agreements, any Note or any other Loan Document, (b) the failure of any Lender
Party or any holder of any Note, (i) to assert any claim or demand or to enforce
any right or remedy against Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreements, any Note, any other Loan Document
or otherwise, or (ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of Borrower or any other
Obligor, (c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other extension, compromise
or renewal of any Obligation of Borrower or any other Obligor, (d) any
reduction, limitation, impairment or termination of any Obligations of Borrower
or any other Obligor for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and Pledgor
hereby waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations of Borrower, any other Obligor or
otherwise, (e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreements, any
Note or any other Loan Document, (f) any addition, exchange, release, surrender
or non-perfection of any collateral (including the Collateral), or any amendment
to or waiver or release of or addition to or consent to departure from any
guaranty, for any of the Obligations, or (g) any other circumstances which might
otherwise constitute a defense available to, or a legal or equitable discharge
of, Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.7 Waiver of Subrogation. Pledgor hereby irrevocably waives
any claim or other rights which it may now or hereafter acquire against Borrower
or any other Obligor that arise from the existence, payment, performance or
enforcement of Pledgor's obligations under this Pledge Agreement or any other
Loan Document, including any right of subrogation, reimbursement, exoneration,
or indemnification, any right to participate in any claim or remedy of Lender
Parties against Borrower or any other Obligor or any collateral which Collateral
Agent now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
Exhibit M - 7
<PAGE>
to take or receive from Borrower or any other Obligor, directly or indirectly,
in cash or other property or by set-off or in any manner, payment or security on
account of such claim or other rights. If any amount shall be paid to Pledgor in
violation of the preceding sentence and the Obligations shall not have been paid
in cash in full and the Commitments have not been terminated, such amount shall
be deemed to have been paid to Pledgor for the benefit of, and held in trust
for, Lender Parties, and shall forthwith be paid to Lender Parties to be
credited and applied upon the Obligations, whether matured or unmatured. Pledgor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreements and that the waiver
set forth in this Section is knowingly made in contemplation of such benefits.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto
each Lender Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of Pledged Shares) by Pledgor to Collateral
Agent of any Collateral, as set forth in this Article.
SECTION 3.1.1 Representations in Credit Agreement. Pledgor hereby
incorporates by reference, mutatis mutandi, each of the representations and
warranties made in Sections 4.1(a), (b), (c), (d) and (e) of the Credit
Agreement.
SECTION 3.1.2 Ownership, No Liens, etc. Pledgor is the legal and
beneficial owner of, and has good title to (and has full right and authority to
pledge and assign) such Collateral, free and clear of all liens, security
interests, options, or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of Collateral Agent.
SECTION 3.1.3 Valid Security Interest. The delivery of such
Collateral to Collateral Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Secured Obligations. No filing or other action will be necessary to perfect
or protect such security interest.
SECTION 3.1.4 As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute 65% of the issued
and outstanding shares of capital stock of each Pledged Share Issuer owned by
Pledgor set forth across from the name of such Pledged Share Issuer on
Attachment 1 hereto. Pledgor has no Restricted Subsidiary other than the Pledged
Share Issuers.
SECTION 3.1.5 Authorization, Approval, etc. Except as contemplated by
Section 2.3(b) and (c), no authorization, approval, or other action by, and no
notice to or filing with, any governmental authority, regulatory body or any
other Person is required either (a) for the pledge by Pledgor of any Collateral
Exhibit M - 8
<PAGE>
pursuant to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by Pledgor, or (b) for the exercise by
Collateral Agent of the rights provided for in this Pledge Agreement, or, except
with respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the Collateral pursuant to this
Pledge Agreement.
ARTICLE IV
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances, etc. Pledgor will
not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of Collateral Agent hereunder). Pledgor will warrant
and defend the right and title herein granted unto Collateral Agent in and to
the Collateral (and all right, title and interest represented by the Collateral)
against the claims and demands of all Persons whomsoever. Pledgor agrees that at
any time, and from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that Collateral Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Pledgor shall provide Collateral Agent with copies of all written
information received from any securities intermediary of Pledgor with respect to
any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Pledge Agreement will be accompanied by duly indorsed
undated blank stock powers, in substantially the form of Attachment 2 hereto, or
other equivalent instruments of transfer acceptable to Collateral Agent. Pledgor
will, from time to time upon the request of Collateral Agent, promptly deliver
to Collateral Agent such stock powers, in substantially the form of Attachment
2, instruments and similar documents, satisfactory in form and substance to
Collateral Agent, with respect to the Collateral as Collateral Agent may
reasonably request and will, from time to time upon the request of Collateral
Agent after the occurrence of any Event of Default, promptly transfer any
Pledged Shares or other shares of common stock constituting Collateral into the
name of any nominee designated by Collateral Agent.
SECTION 4.3 Continuous Pledge. Subject to Section 2.4, the Pledgor
will, at all times, keep pledged to Collateral Agent pursuant hereto all Pledged
Shares, all other shares of capital stock constituting Collateral, and all
securities, security entitlements and securities accounts constituting
Collateral and all other Collateral and other securities, instruments, security
entitlements, financial assets, investment property, proceeds, and rights from
time to time received by or distributable to Pledgor in respect of any
Collateral.
Exhibit M - 9
<PAGE>
SECTION 4.4 Dividends, etc. Pledgor agrees after any acceleration
under the Credit Agreements or Default occurring on the Maturity Date, promptly
upon receipt thereof by Pledgor and without any request therefor by Collateral
Agent, to deliver (properly endorsed where required hereby or requested by
Collateral Agent) to Collateral Agent all Dividends, Distributions, all
interest, all principal, all other cash payments, and all proceeds of the
Collateral, all of which shall be held by Collateral Agent as additional
Collateral for use in accordance with Section 6.3. All Dividends, Distributions,
interest, principal, cash payments, and proceeds which may at any time and from
time to time be held by Pledgor but which Pledgor is then obligated to deliver
to Collateral Agent, shall, until delivery to Collateral Agent, be held by
Pledgor separate and apart from its other property in trust for Collateral
Agent.
SECTION 4.5 Additional Undertakings. Pledgor will not, without the
prior written consent of Collateral Agent, take or omit to take any action the
taking or the omission of which would result in any impairment or alteration of
the security interest in the Pledged Shares.
ARTICLE V
COLLATERAL AGENT
SECTION 5.1 Agent Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Collateral Agent Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time in Collateral Agent's discretion, to take any
action and to execute any writing or paper which Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Pledge Agreement,
including without limitation: (a) after the occurrence and continuance of an
Event of Default, to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral; (b) to receive, endorse, and collect any
drafts or other instruments, documents and chattel paper, in connection with
clause (a) above; and (c) to file any claims or take any action or institute any
proceedings which Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Collateral Agent with respect to any of the Collateral. Pledgor hereby
acknowledges, consents and agrees that the power of attorney granted pursuant to
this Section is irrevocable and coupled with an interest.
SECTION 5.2 Agent May Perform. If Pledgor fails to perform any
agreement contained herein, Collateral Agent may itself perform, or cause
performance of, such agreement, and the expenses of Collateral Agent incurred in
connection therewith shall be payable by Pledgor pursuant to Section 6.4.
SECTION 5.3 Agent Has No Duty. The powers conferred on Collateral
Agent hereunder are solely to protect its interest (on behalf of Lender Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, Collateral Agent shall
Exhibit M - 10
<PAGE>
have no duty as to any Collateral or responsibility for (a) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities, tenders
or other matters relative to any Pledged Shares, whether or not Collateral Agent
has or is deemed to have knowledge of such matters or (b) taking any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral.
SECTION 5.4 Reasonable Care. Collateral Agent is required to exercise
reasonable care in the custody and preservation of any of the Collateral in its
possession; provided, however, Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any of the
Collateral, if it takes such action for that purpose as Pledgor reasonably
requests in writing at times other than upon the occurrence and during the
continuance of any Event of Default, but failure of Collateral Agent to comply
with any such request at any time shall not in itself be deemed a failure to
exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1 Certain Remedies. On or after any acceleration under the
Credit Agreements or Default occurring on the Maturity Date:
(a) Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice except
as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of Collateral Agent's
offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as Collateral Agent may deem commercially
reasonable. Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' prior notice to Pledgor of the time
and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. Collateral
Agent shall not be obligated to make any sale of Collateral regardless
of notice of sale having been given. Collateral Agent may adjourn any
public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) Collateral Agent may (i) transfer all or any part of the
Collateral into the name of Collateral Agent or its nominee, with or
without disclosing that such Collateral is subject to the lien and
security interest hereunder, (ii) notify the parties obligated on any
of the Collateral to make payment to Collateral Agent of any amount due
or to become due thereunder, (iii) enforce collection of any of the
Collateral by suit or otherwise, and surrender, release or exchange all
or any part thereof, or compromise or extend or renew for any period
Exhibit M - 11
<PAGE>
(whether or not longer than the original period) any obligations of any
nature of any party with respect thereto, (iv) endorse any checks,
drafts, or other writings in Pledgor's name to allow collection of the
Collateral, (v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or
transfer with respect to all or any of the Collateral.
SECTION 6.2 Compliance with Restrictions. Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, Collateral Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and Pledgor further agrees that such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor shall Collateral Agent be liable nor accountable to Pledgor for any
discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION 6.3 Application of Proceeds. All cash proceeds received by
Collateral Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
Collateral Agent, be held by Collateral Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to Collateral Agent pursuant to Sections 6.4 of the Credit Agreements)
in whole or in part by Collateral Agent against, all or any part of the Secured
Obligations in such order as Collateral Agent shall elect.
Any surplus of such cash or cash proceeds held by Collateral Agent and
remaining after payment in full of all the Secured Obligations, and the
termination of all Commitments, shall be paid over to Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.
SECTION 6.4 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless Collateral Agent in accordance with Sections 6.4 of the Credit
Agreements.
Exhibit M - 12
<PAGE>
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2 Amendments. No amendment to or waiver of any provision of
this Pledge Agreement, nor consent to any departure by Pledgor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7.3 Protection of Collateral. Collateral Agent may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
so to perform after the occurrence and continuance of an Event of Default and
Collateral Agent may from time to time take any other action which Collateral
Agent reasonably deems necessary for the maintenance, preservation or protection
of any of the Collateral or of its security interest therein.
SECTION 7.4 Obligations Not Affected. The obligations of Pledgor
under this Pledge Agreement shall remain in full force and effect without regard
to, and shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to
the Credit Agreements, any Note, any other Loan Documents, any
instrument delivered in connection therewith, or any assignment or
transfer thereof;
(b) any exercise, non-exercise, or waiver by Collateral Agent
or any Lender of any right, remedy, power, or privilege under or in
respect of, or any release of any guaranty or collateral provided
pursuant to, this Pledge Agreement, the Credit Agreements, Pledgor's
Guaranty or any other Loan Document;
(c) any waiver, consent, extension, indulgence, or other
action or inaction in respect of this Pledge Agreement, the Credit
Agreements, Pledgor's Guaranty or any other Loan Document or any
assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation, or the like, of Pledgor or any
other Person, whether or not Pledgor shall have notice or knowledge of
any of the foregoing.
Exhibit M - 13
<PAGE>
SECTION 7.5 Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Pledgor at the
address of Pledgor specified on the signature pages hereto and to each Agent and
each Lender at their addresses specified on the signature pages to the Credit
Agreements (unless changed by similar notice in writing given by the particular
Person whose address is to be changed). Any such notice or communication shall
be deemed to have been given: (a) in the case of personal delivery service, as
of the date of first attempted delivery at the address provided herein; (b) in
the case of telecopy, upon receipt; or (c) in the case of registered or
certified United States mail, three days after deposit in the mail, postage
prepaid.
SECTION 7.6 No Waiver; Remedies. No failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 7.7 Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.8 Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION 7.9 Governing Law, Entire Agreement. THIS PLEDGE AGREEMENT
SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF
TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THIS PLEDGE AGREEMENT AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 7.10 Waiver of Jury Trial. EACH OF PLEDGOR, AGENTS AND LENDERS
HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
Exhibit M - 14
<PAGE>
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH,
BEFORE OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS PLEDGE
AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION.
SECTION 7.11 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF LENDER PARTIES OR
PLEDGOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY
MAY BE BROUGHT, AT COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. FOR
PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR STATE COURTS
OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER WITH OFFICES ON
THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND, TEXAS 79701 TO
RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS IN TEXAS.
PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
Exhibit M - 15
<PAGE>
EXTENT THAT PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
THIS WRITTEN PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit M - 16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[Pledgor]
-----------------------------
By:
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit M - 17
<PAGE>
NATIONSBANK OF TEXAS, N.A.
By
-----------------------------
Name: Frank K. Stowers
Title: Vice President
Address: 303 W. Wall
P. O. Box 1599
Midland, Texas 79701
Attention: Frank K. Stowers
Exhibit M - 18
<PAGE>
ACKNOWLEDGMENT
The undersigned hereby agrees and consents to the terms and provisions
of the foregoing Pledge Agreement, including, without limitation, Section 2.3
and Article IV of the Pledge Agreement. The undersigned hereby acknowledges the
registration on its books of the pledge and security interest created by the
Pledge Agreement in the manner required by Section 8-301(1)(b) of the U.C.C. and
that undersigned will not permit any sale, transfer, pledge or other encumbrance
of the Pledged Interests without the prior written consent of the Agent.
------------------------------------
By:
Name:
Title:
Exhibit M - 19
<PAGE>
ATTACHMENT 1
to
Pledge Agreement
Pledged Shares
Pledged Share Issuer
Outstanding Shares
Shares Delivered
----------- ---------
- ---------------------------- ----------- ---------
Exhibit M - 20
<PAGE>
ATTACHMENT 2
to
Pledge Agreement
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ( )
----------------------------------------------------------- -------------
shares of common stock in , a
------------------------- -------------------------
corporation, represented by the attached Certificate No. herewith and do
-------
hereby irrecovably constitute and appoint
--------------------------------------
attorney to transfer the said stock on the books of with
-----------------------
full power of substitution in the premises.
DATED
----------------
[PLEDGOR]
------------------------
By:
Name:
Title:
IN PRESENCE OF
- ----------------------------
Exhibit M - 21
<PAGE>
Exhibit N
Request for Competitive Bid Offer
,
----------- -------
To: The Lenders party to the Credit Agreement, NationsBank of Texas,
N.A., as agent (the "Administrative Agent")
From: (the "Borrower")
--------------------------
Re: Primary Facility - Credit Facility Agreement dated as of August 7,
1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan
Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party
thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement")
Pursuant to Section 2.22 of the Credit Agreement, we hereby request
Competitive Bid Offers for the following proposed Competitive Bid Advance(s):
Borrowing Date: ,
----------------- ----
Principal Amount (1) Requested Maturity Date (2)
$
Upon acceptance by the undersigned of any or all of the Competitive Bid
Offers tendered by Lenders in response to this request, the undersigned shall be
deemed to affirm as of the borrowing date thereof the representations and
warranties made by the Obligors in the Credit Agreement and the other Loan
Documents to the extent specified in Section 3.2 thereof (except to the extent
such representations and warranties relate solely to an earlier date).
- --------
(1) Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
(2) At least 15 and up to 360 days.
Exhibit N - 1
<PAGE>
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
PIONEER NATURAL RESOURCES
USA, INC.
By:
Name:
Title:
Exhibit N - 2
<PAGE>
Exhibit O
Competitive Bid Offer
,
----------- -----
To:
-------------------------
Attn:
-------------------
Re: Primary Facility - Competitive Bid Offer to Pioneer Natural Resources
USA, Inc. (the "Borrower")
In response to the Borrower's Request for Competitive Bid Offer dated
, 199 , we hereby make the following Competitive Bid Offer pursuant
to Section 2.22 of the Credit Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:
2. Person to contact at Lender:
3. Borrowing Date: , (1)
------------ -----
4. We hereby offer to make Competitive Bid Advance(s) in the following
principal amounts, for the following periods and at the following
rates:
Principal Maturity Competitive
Amount (2) Date (3) Bid Rate (4)
- ---------- -------- ------------
$
- --------
1 As specified in the related Request for Competitive Bid Offer.
2 Principal amount bid for each maturity date may not exceed the principal
amount requested. Bids must be made for at least $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
3 At least 15 and up to 360 days, as specified in the related Request for
Competitive Bid Offer.
4 Specify rate of interest per annum (rounded to the nearest 1/10,000 of 1%).
Exhibit O - 1
<PAGE>
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), irrevocably
obligates us to make the Competitive Bid Advance(s) for which any offer(s) are
accepted, in whole or in part. Capitalized terms used herein and not otherwise
defined herein shall have their meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: ,
-------------- ------
By:
------------------------------
Authorized Officer
Exhibit O - 2
<PAGE>
Exhibit P
Bid Acceptance
,
--------- ----
To: [Name of Lender]
Re: Primary Facility - Request for Competitive Bid Offer from Pioneer Natural
Resources USA, Inc. (the "Borrower")
Pursuant to that certain Credit Facility Agreement dated as of August 7,
1997 by and among Borrower, NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), we accept your Competitive Bid Offer for the following
proposed Competitive Bid Advance(s) and reject any Competitive Bid Offer to the
Competitive Bid Borrower not described below:
Borrowing Date: ,
--------------- ------
Principal Amount Maturity Date Competitive Bid Rate
- ---------------- ------------- --------------------
$
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
PIONEER NATURAL RESOURCES
USA, INC.
By:
--------------------------
Authorized Officer
Exhibit P - 1
<PAGE>
Schedule 1
Schedule of Lenders' Commitments and Percentage Share
Schedule 1 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 1 - 1
<PAGE>
Schedule 2
Disclosure Schedule
Schedule 2 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 2 - 1
<PAGE>
Schedule 3
Schedule of Restricted Subsidiaries
Schedule 3 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 3 - 1
<PAGE>
Schedule 4
Schedule of Insurance
Schedule 4 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 4 - 1
<PAGE>
Schedule 5
Schedule of Security Instruments
Schedule 5 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 5 - 1
<PAGE>
Schedule 6
Continuing Letters of Credit
Schedule 6 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 6 - 1
<PAGE>
EXHIBIT 10.2
[364 DAY FACILITY]
CREDIT FACILITY AGREEMENT
PIONEER NATURAL RESOURCES USA, INC.,
as Borrower,
and
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent,
and
CIBC INC.,
as Documentation Agent,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Syndication Agent,
THE CO-AGENTS SIGNATORY HERETO,
and
THE OTHER LENDERS SIGNATORY HERETO
as of August 7, 1997 $300,000,000
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND REFERENCES........................... 1
Section 1.1 Defined Terms........................................ 1
Section 1.2 Exhibits and Schedules............................... 17
Section 1.3 Amendment of Defined Instruments..................... 17
Section 1.4 References and Titles................................ 18
Section 1.5 Calculations and Determinations...................... 18
ARTICLE 2 LOANS................................................ 18
Section 2.1 Making the Loans..................................... 18
Section 2.2 Requests for Revolving Loan Advances................. 19
Section 2.3 Rate Elections....................................... 20
Section 2.4 Swing Line Borrowings................................ 21
Section 2.5 Procedure for Swing Line Advances.................... 22
Section 2.6 Swing Line Advances.................................. 24
Section 2.7 Facility Fee......................................... 25
Section 2.8 Managing Agents' Fees................................ 25
Section 2.9 Termination and Reduction of Commitments............. 25
Section 2.10 Optional Prepayments................................. 26
Section 2.11 Payments to Lenders.................................. 26
Section 2.12 Extension of Maturity Date and of Commitments........ 27
Section 2.13 [Intentionally Omitted............................... 29
Section 2.14 [Intentionally Omitted............................... 29
Section 2.15 [Intentionally Omitted............................... 29
Section 2.16 Capital Reimbursement................................ 29
Section 2.17 Increased Cost of Eurodollar Portions................ 29
Section 2.18 Availability......................................... 30
Section 2.19 Funding Losses....................................... 30
Section 2.20 Taxes................................................ 32
Section 2.21 Make-Whole Qualifications............................ 34
Section 2.22 Competitive Bid Advances............................. 36
ARTICLE 3 CONDITIONS PRECEDENT TO LENDING...................... 40
Section 3.1 Initial Conditions Precedent......................... 40
Section 3.2 Additional Conditions Precedent...................... 41
ARTICLE 4 REPRESENTATIONS AND WARRANTIES....................... 43
Section 4.1 Borrower's Representations and Warranties............ 43
Section 4.2 Representation by Lenders............................ 47
i
<PAGE>
TABLE OF CONTENTS
(continued)
Page
ARTICLE 5 COVENANTS OF BORROWER................................ 47
Section 5.1 Affirmative Covenants................................ 47
Section 5.2 Negative Covenants................................... 51
Section 5.3 Financial Covenants.................................. 54
ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES....................... 55
Section 6.1 Events of Default.................................... 55
Section 6.2 Remedies............................................. 59
Section 6.3 Annulment of Acceleration............................ 60
Section 6.4 Indemnity............................................ 60
ARTICLE 7 AGENTS............................................... 62
Section 7.1 Appointment and Authority............................ 62
Section 7.2 Agent's Reliance..................................... 63
Section 7.3 Lenders' Credit Decisions............................ 64
Section 7.4 Indemnification...................................... 64
Section 7.5 Rights as Lender..................................... 64
Section 7.6 Sharing of Set-Offs and Other Payments............... 65
Section 7.7 Investments.......................................... 65
Section 7.8 Benefit of Article 7................................. 66
Section 7.9 Resignation and Removal.............................. 66
ARTICLE 8 MISCELLANEOUS........................................ 67
Section 8.1 Waivers and Amendments............................... 67
Section 8.2 Survival of Agreements; Cumulative Nature............ 68
Section 8.3 Notices.............................................. 68
Section 8.4 Parties in Interest.................................. 69
Section 8.5 Governing Law........................................ 69
Section 8.6 Limitation on Interest............................... 69
Section 8.7 Termination; Limited Survival........................ 71
Section 8.8 Assignments; Participations.......................... 71
Section 8.9 Confidentiality...................................... 73
Section 8.10 Severability......................................... 74
Section 8.11 Counterparts......................................... 74
Section 8.12 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES............... 74
Section 8.13 Several Obligations.................................. 74
Section 8.14 Nonliability of Lenders.............................. 75
Section 8.15 Setoff............................................... 75
Section 8.16 Release of Liens..................................... 75
Section 8.17 Forum Selection and Consent to Jurisdiction.......... 75
Section 8.18 Renewal, Extension or Rearrangement.................. 76
Section 8.19 Entire Agreement..................................... 76
ii
<PAGE>
EXHIBITS AND SCHEDULES
Exhibits:
Exhibit A-1 - Form of Loan Note
Exhibit A-2 - Form of Swing Line Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B-1 - Form of Guaranty
Exhibit B-2 - Form of Parent Guaranty
Exhibit C - Form of Request for Advance
Exhibit D - Form of Rate Election
Exhibit E - Form of Request for Swing Line Bid
Exhibit F - Form of Swing Line Bid
Exhibit G - Form of Acceptance Notice
Exhibit H - Form of Opinion of Parent's, Borrower's and Restricted
Subsidiaries' Counsel
Exhibit I - Organization Chart of Parent and its Subsidiaries
Exhibit J - Form of Designated Officer's Certificate
Exhibit K-1 - Form of Election to Convert
Exhibit K-2 - Form of Release
Exhibit L - Form of Agreement to be Bound
Exhibit M - Form of Pledge Agreement
Exhibit N - Form of Request for Competitive Bid Offer
Exhibit O - Form of Competitive Bid Offer
Exhibit P - Form of Bid Acceptance
Exhibit Q - Form of Certificate of Extension
Schedules:
Schedule 1 - Schedule of Lenders' Commitments and Percentage Share
Schedule 2 - Disclosure Schedule
Schedule 3 - Schedule of Restricted Subsidiaries
Schedule 4 - Schedule of Insurance
Schedule 5 - Schedule of Security Instruments
iii
<PAGE>
CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT is made as of August 7, 1997 (together
with all amendments, renewals, extensions and other modifications, if any, from
time to time hereafter made hereto, the "Agreement" or "Credit Facility
Agreement"), by and among PIONEER NATURAL RESOURCES USA, INC., a Delaware
corporation and wholly-owned subsidiary of the Parent (the "Borrower"), and
NATIONSBANK OF TEXAS, N.A., CIBC INC., MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, THE CHASE MANHATTAN BANK, in the capacities herein identified, the
Co-Agents party hereto, and the other Lenders from time to time parties hereto.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND REFERENCES
Section 1.1 Defined Terms. As used in this Agreement, each of the
following terms has the meaning given it in this Section or in the sections and
subsections referred to below:
"Acceptance Notice" has the meaning given it in Section 2.5(f).
"Accepting Lenders" is defined in Section 2.12(c).
"Adjusted Eurodollar Rate" means, with respect to each particular
Eurodollar Portion and the associated Eurodollar Rate and Reserve Percentage,
the rate per annum determined hereunder by Administrative Agent on a daily basis
pursuant to the following formula:
AER = ER + EM
---------
1.00 - RP
AER = Adjusted Eurodollar Rate
ER = Eurodollar Rate
RP = Reserve Percentage
EM = Eurodollar Margin
The Adjusted Eurodollar Rate shall change as and when the associated Reserve
Percentage and Eurodollar Margin change.
"Administrative Agent" means NationsBank of Texas, N.A., as
Administrative Agent hereunder and its successors and assigns in such capacity.
1
<PAGE>
"Advance" means any Revolving Loan Advance, Competitive Bid Advance or
Swing Line Advance.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person.
"Agent" means any of the Managing Agents or the Collateral Agent
hereunder, solely in such capacities and not in their respective capacities as
Lenders.
"Agreement" means this Credit Facility Agreement, as this Credit
Facility Agreement may be amended, modified or restated from time to time
hereafter.
"Agreement to be Bound" means an agreement to be bound entered into by
a Lender and an assignee (with the consent of any party whose consent is
required by Section 8.8), and accepted by the Administrative Agent, in
substantially the form of Exhibit L or any other form approved by the
Administrative Agent.
"Applicable Rating Level" means the level set forth below that
corresponds to the highest of ratings issued from time to time by Moody's and
S&P, as applicable to Borrower's senior unsecured long-term debt:
Moody's S&P
------------------- -------------------
Level I greater than Baa1 greater than BBB+
Level II Baa1 BBB+
Level III Baa2 BBB
Level IV Baa3 BBB-
Level V less than Baa3 less than BBB-
For example, if the Moody's rating is Baa1 and the S&P rating is BBB, Level II
shall apply.
For purposes of the foregoing, (i) "greater than" means a rating more
favorable than; "less than" means a rating less favorable than; (ii) if ratings
for the Company's senior unsecured long-term debt shall not be available from
S&P or Moody's, Level V shall be deemed applicable; (iii) if any of the Rating
Agencies shall change its ratings nomenclature prior to the date all Obligations
have been paid and the Commitments canceled, Borrower and the Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such change, and pending such amendment, if an appropriate
Applicable Rating Level is otherwise not determinable based upon the foregoing
grid, the last Applicable Rating Level in effect at the time of such change
shall continue to apply.
2
<PAGE>
"Base Rate" means the fluctuating per annum rate of interest from time
to time in effect equal to the higher of (a) the rate of interest as publicly
announced by Administrative Agent as its "Prime Rate" or (b) the Federal Funds
Rate plus one-half of one percent (1/2 of 1%), whether or not Borrower has
notice thereof. Such rate is set by Administrative Agent as a general rate of
interest, taking into account such factors as Administrative Agent may deem
appropriate, it being understood that many of Administrative Agent's commercial
or other loans are priced in relation to such rate, that it is not necessarily
the lowest or best rate actually charged to any customer and that Administrative
Agent may make various commercial or other loans at rates of interest having no
relationship to such rate. If Administrative Agent's Prime Rate or the Federal
Funds Rate changes after the date hereof, the Base Rate shall be automatically
increased or decreased, as the case may be, without prior notice to Borrower
from time to time as of the effective time of each change in Administrative
Agent's Prime Rate or the Federal Funds Rate. The Administrative Agent shall
promptly thereafter notify Borrower of such change in the Base Rate.
"Base Rate Portion" means that portion of the unpaid principal balance
of a Loan which is not made up of Eurodollar Portions, Swing Line Advances or
Competitive Bid Advances.
"Bid Acceptance" means a Bid Acceptance substantially in the form of
Exhibit P hereto with appropriate insertions.
"Borrower" is defined in the Preamble hereto.
"Business Day" means a day on which commercial banks are open for
business with the public in the State of Texas. Any Business Day in any way
relating to Eurodollar Portions (such as the day on which a Eurodollar Interest
Period begins or ends) must also be a day on which, in the reasonable, good
faith judgment of Administrative Agent, significant transactions in dollars are
carried out in the interbank eurocurrency market.
"Certificate of Extension" means a certificate of Borrower, executed by
a Designated Officer and delivered to the Administrative Agent, in substantially
the form of Exhibit Q, which requests an extension of the then scheduled
Maturity Date pursuant to Section 2.12.
"Co-Agent" means each of Bank of America National Trust and Savings
Association, The Bank of New York, The Bank of Nova Scotia, Royal Bank of
Canada, Union Bank of California, N.A., The Fuji Bank Limited - Houston Agency,
and Wells Fargo Bank. N.A., as Co-Agents, and their respective successors and
assigns in such capacity.
"Collateral Agent" means NationsBank of Texas, N.A., as collateral
agent under the Security Instruments and its successors and assigns in such
capacity.
3
<PAGE>
"Commitment" means, with respect to each Lender, such Lender's Loan
Commitment.
"Competitive Bid Advances" has the meaning given it in Section 2.22.
"Competitive Bid Note" has the meaning given it in Section 2.22.
"Competitive Bid Obligations" means, at the particular time in
question, the sum of all outstanding Competitive Bid Advances.
"Competitive Bid Offer" has the meaning given it in Section 2.22.
"Competitive Bid Rate" has the meaning given it in Section 2.22.
"Consolidated" refers to the consolidation of any Person, in accordance
with GAAP, with its properly consolidated Subsidiaries. References herein to a
Person's Consolidated financial statements, financial position, financial
condition, or liabilities refer to the consolidated financial statements,
financial position, financial condition or liabilities, as the case may be, of
such Person and its properly consolidated Subsidiaries.
"Consolidated Interest Expense" is defined in Section 5.3(a).
"Credit Facility Agreement" means this Credit Facility Agreement, as
this Credit Facility Agreement may be amended, modified or restated from time to
time hereafter.
"Debt" of any Person means, without duplication:
(a) indebtedness of such Person for borrowed money;
(b) indebtedness of such Person constituting an obligation to pay the deferred
purchase price of property or services (other than customary payment terms
taken in the ordinary course of such Person's business);
(c) indebtedness of such Person evidenced by a bond, debenture, note or similar
instrument;
(d) principal obligations under leases capitalized in accordance with GAAP
under which such Person is the lessee;
(e) indebtedness, contingent or otherwise, of such Person with respect to
bankers' acceptances or the face amount of letters of credit or
applications or reimbursement agreements therefor;
4
<PAGE>
(f) guaranties of such Person of indebtedness or obligations of the type
described in clauses (a), (b), (c), (d) or (e) above of any other Person or
obligations to purchase or acquire or to otherwise protect or insure a
creditor against loss in respect of indebtedness or obligations of the type
described in clauses (a), (b), (c), (d) or (e) above of any other Person,
but excluding endorsements in the ordinary course of business of negotiable
instruments in the course of collection;
(g) indebtedness or obligations of the type described in clauses (a), (b), (c),
(d) or (e) above, which are secured by a Lien on any property owned by such
Person, whether or not such indebtedness or obligations have been assumed
by such Person (limited however to the lesser of (1) the amount of its
liability or (2) the value of such property); and
(h) the undischarged balance of any production payment created by such Person
or for the creation of which such Person directly or indirectly received
payment;
provided, however, Debt shall not include (1) accounts payable incurred in the
ordinary course of such Person's business, or (2) any obligations in respect of
(i) exchange, forward, future, swap, hedging or similar agreements and (ii)
prepayments for gas or oil production or gas or oil imbalances.
"Declining Lenders" is defined in Section 2.12(c).
"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the passage
of any requisite periods of time, constitute an Event of Default.
"Default Rate" means, at the particular time in question, two percent
(2%) per annum plus the Base Rate then in effect; provided, that, with respect
to any Eurodollar Portion with an Eurodollar Interest Period extending beyond
the date such Eurodollar Portion becomes due and payable, "Default Rate" shall
mean, during such Eurodollar Interest Period, two percent (2%) per annum plus
the related Eurodollar Rate and plus the applicable Eurodollar Margin.
"Designated Officer" means any Executive Officer or any other
individual duly elected to and holding one or more of the offices of vice
president, managing director, executive director, secretary or assistant
secretary of an Obligor, or any other Person authorized in writing by any
Obligor to execute any Loan Document, in each case designated by an Obligor and
acceptable to Required Lenders.
"Disclosure Schedule" means (a) Schedule 2 hereto and (b) any documents
listed on such schedule and expressly incorporated therein by reference, true
and correct copies of which shall have been delivered to Managing Agents and
each other Lender prior to the date hereof. Insofar as any representations and
warranties made herein are incorporated by reference or otherwise remade in Loan
5
<PAGE>
Documents delivered as of a date after the date hereof, the term "Disclosure
Schedule" shall in such representations and warranties be deemed to refer as
well to all other documents indicated by Borrower to be part of the Disclosure
Schedule and which Borrower has at the particular time in question delivered to
the Managing Agents, the Co-Agents and each other Lender and which have not been
promptly objected to in writing by or on behalf of the Required Lenders.
"Documentation Agent" means each of CIBC Inc. and Morgan Guaranty Trust
Company of New York, as Documentation Agents, and their respective successors
and assigns in such capacity.
"EBITDAX" is defined in Section 5.3(a).
"Effective Date" means the date the parties hereto shall have executed
and delivered counterparts hereof to Administrative Agent and Administrative
Agent shall have notified the parties hereto that the Effective Date shall have
occurred.
"Environmental Law" means any federal, state, or local statute, or rule
or regulation promulgated thereunder, any judicial or administrative order or
judgment to which Borrower, or any of its Subsidiaries is a party or which are
applicable to Borrower or any of its Subsidiaries or its or their respective
properties (whether or not by consent), and any provision or condition of any
permit, license or other governmental operating authorization, relating to
protection of the environment, persons or the public welfare from actual or
potential exposure or the effects of exposure to any actual or potential
release, discharge, spill or emission (whether past or present) of, or regarding
the manufacture, processing, production, gathering, transportation, importation,
use, treatment, storage or disposal of, any chemical, raw material, pollutant,
contaminant or toxic or hazardous substance or waste.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
with respect thereto.
"ERISA Plan" means any pension benefit plan subject to Title IV of
ERISA maintained by any Obligor or any Affiliate thereof with respect to which
any Obligor has a fixed or contingent liability.
"Eurodollar Interest Period" means, with respect to each particular
Eurodollar Portion, a period of one (1), two (2), three (3) or six (6) months,
or, subject to Section 2.3, a period of nine (9) or twelve (12) months, as
specified in the Rate Election applicable thereto, beginning on and including
the date specified in such Rate Election (which must be a Business Day), and
ending on but not including the same day of the relevant month as the day on
which it began (e.g., a period beginning on the third day of one month shall end
on but not include the third day of another month), or if such month has no
numerically corresponding day, on the last Business Day of such month, and
provided that each Eurodollar Interest Period which would otherwise end on a day
6
<PAGE>
which is not a Business Day shall end on the next succeeding Business Day
(unless such next succeeding Business Day is the first Business Day of a
calendar month, in which case such Eurodollar Interest Period shall end on the
immediately preceding Business Day). No Eurodollar Interest Period may be
elected for any Eurodollar Portion which would extend past the Maturity Date of
the Loan of which the Eurodollar Portion is a part.
"Eurodollar Margin" means, on any date, with respect to each Eurodollar
Portion of a Revolving Loan, the number of basis points per annum set forth
below based on the Applicable Rating Level on such date:
Applicable Eurodollar
Rating Level Margin
------------ ----------
Level I 20.0 b.p.
Level II 22.0 b.p.
Level III 25.0 b.p.
Level IV 30.0 b.p.
Level V 47.0 b.p.
Changes in the Eurodollar Margin will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Eurodollar Margin.
"Eurodollar Portion" means the unpaid principal balance of a Loan which
Borrower designates as such in a Rate Election.
"Eurodollar Rate" means, with respect to each particular Eurodollar
Portion within a Tranche and with respect to the related Eurodollar Interest
Period, the rate of interest per annum (stated to the nearest 10,000ths of 1%)
determined by Administrative Agent in accordance with its customary general
practices to be representative of the rates (stated to the nearest 10,000ths of
1%) at which deposits of dollars are offered to Administrative Agent at
approximately 10:00 a.m., Dallas, Texas time, two Business Days prior to the
first day of such Eurodollar Interest Period by prime banks in the interbank
eurocurrency market which have been selected by Administrative Agent in
accordance with its customary general practices for delivery on the first day of
such Eurodollar Interest Period in an amount equal or comparable to the amount
of Administrative Agent's Eurodollar Portion within such Tranche and for a
period of time equal or comparable to the length of such Eurodollar Interest
Period. The Eurodollar Rate determined by Administrative Agent with respect to a
particular Eurodollar Portion shall be fixed at such rate for the duration of
the associated Eurodollar Interest Period. If Administrative Agent is unable
7
<PAGE>
so to determine the Eurodollar Rate for any Eurodollar Portion, Borrower shall
be deemed not to have elected such Eurodollar Portion.
"Eurodollars" is defined in Section 2.18.
"Event of Default" has the meaning given it in Section 6.1.
"Executive Officer" means any individual duly elected to and holding
one or more of the following offices of Borrower: President, Chief Executive
Officer, Chief Financial Officer, Executive Vice President or Senior Vice
President.
"Existing Mesa Credit Facility" means that certain Credit Agreement,
dated July 2, 1996, as amended and restated through April 15, 1997, among Mesa
Operating, the Lenders therein named, Bankers Trust Company, as Syndication
Agent, Societe Generale, Southwest Agency, as Documentation Agent, and The Chase
Manhattan Bank, as Administrative Agent for the Lenders, as may be amended,
restated or modified from time to time.
"Existing Petroleum Credit Facility" means that certain Amended and
Restated Credit Facility Agreement, dated as of July 31, 1996, among Petroleum,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Bank of America National Trust and Savings Association, The Chase
Manhattan Bank, First Union National Bank of North Carolina, Morgan Guaranty
Trust Company of New York and Wells Fargo Bank, N.A., each as Co-Agent, and the
Lenders signatory thereto, as amended by that certain First Amendment to Amended
and Restated Credit Facility Agreement, dated as of May 15, 1997.
"Facility Amount" means the aggregate amount of the Commitments (which
amount shall initially be $300,000,000), as such amount may be reduced from time
to time pursuant to the terms of this Agreement.
"Facility Fee Rate" means, on any date that a facility fee is due
pursuant to Section 2.7, the number of basis points per annum set forth below
based on the Applicable Rating Level on such date:
Applicable Facility Fee Rate
Rating Level Margin
------------ -----------------
Level I 7.0 b.p.
Level II 8.0 b.p.
Level III 10.0 b.p.
Level IV 12.0 b.p.
Level V 18.0 b.p.
8
<PAGE>
Changes in the Facility Fee Rate will occur automatically without prior notice.
Administrative Agent will give notice promptly to Borrower and the Lenders of
changes in the Facility Fee Rate.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to Administrative Agent
on such day on such transactions as determined by Administrative Agent.
"Fiscal Quarter" means a three-month period ending on March 31, June
30, September 30 or December 31 of each year.
"Fiscal Year" means a twelve-month period ending on December 31 of each
year.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of the
Borrower organized under the laws of any jurisdiction other than the United
States or any state thereof.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Financial Accounting Standards
Board (or any generally recognized successor) and which, in the case of Parent,
Borrower and their Consolidated Subsidiaries, are applied for all periods after
the date hereof in a manner consistent with the manner in which such principles
and practices were applied to the Updated Financial Statements (except for
changes concurred with by Parent's or Borrower's independent public
accountants). If any change in any accounting principle or practice is required
by the Financial Accounting Standards Board (or any such successor) in order for
such principle or practice to continue as a generally accepted accounting
principle or practice, all reports and financial statements required hereunder
with respect to Parent or Borrower or with respect to Parent, Borrower and their
Consolidated Subsidiaries must be prepared in accordance with such change. In
the event any changes in GAAP materially affect the calculation of Parent's
EBITDAX to Consolidated Interest Expense Ratio or Consolidated Total Funded Debt
to Total Capitalization as defined and described in Sections 5.3 (a) and (b),
respectively, Parent, Borrower and Lenders agree to enter into good faith
negotiations for an agreement to revise such tests to take into account such
9
<PAGE>
changes in GAAP; until Parent, Borrower and Majority Lenders have entered into
such an agreement, such financial calculation shall continue to be made in
accordance with GAAP as in effect immediately preceding the date of such change.
"Governmental Authority" means any national, state, county or municipal
government, domestic or foreign, any agency, board, bureau, commission, court,
department or other instrumentality of any such government, or any arbitrator in
any case which has jurisdiction over any of the Lenders, Borrower, its
Subsidiaries or any properties of Borrower or its Subsidiaries.
"Guaranty" means (i) any guaranty substantially in the form of Exhibit
B-1, with appropriate insertions and deletions, executed or to be executed by
any Restricted Subsidiary, as from time to time amended, modified, or
supplemented, (ii) the Parent Guaranty, or (iii) any Guaranty delivered pursuant
to Section 3.1(a)(1) of the Agreement as from time to time amended, modified, or
supplemented, as the case may be.
"Incumbent Directors" has the meaning given in Section 6.1(i).
"Lenders" means each party hereto (other than Borrower), including,
without limitation, NationsBank of Texas, N.A. in its capacity as a Lender
hereunder rather than as Administrative Agent or Collateral Agent, CIBC Inc. in
its capacity as a Lender hereunder rather than as Documentation Agent, Morgan
Guaranty Trust Company of New York in its capacity as a Lender hereunder rather
than as Documentation Agent, The Chase Manhattan Bank in its capacity as a
Lender hereunder rather than as Syndication Agent, the Co-Agents in their
capacity as Lenders hereunder rather than as Co-Agents, and the successors and
assigns of each as holder of a Note.
"Lien" means, any lien, mortgage, security interest, pledge, deposit,
production payment, encumbrance, rights of a vendor under any title retention or
conditional sale agreement or lease or other arrangement substantially
equivalent thereto.
"Loan" means any of a Revolving Loan, Competitive Bid Advance or Swing
Line Advance, as the context requires.
"Loan Commitment" means, with respect to each Lender, the amount set
forth as such Lender's Loan Commitment opposite the name of such Lender in the
column headed "New Commitment" or otherwise indicated on Schedule 1 attached
hereto (or, if such Lender is an assignee, the amount of its Loan Commitment set
forth in the assignment pursuant to which it became a Lender) as such amount may
be reduced or increased from time to time pursuant to any assignment to which it
is a party or otherwise pursuant to the terms of this Agreement.
"Loan Commitment Period" means the period from and including the date
hereof until and including the Maturity Date (or, if earlier, the day on which
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the Loan Notes first become due and payable in full or the Loan Commitments are
terminated upon notice by Administrative Agent to Borrower pursuant to Section
6.1).
"Loan Documents" means this Credit Facility Agreement, as the same may
have been or may be amended from time to time hereafter, the Notes, the Swing
Line Bids accepted by Borrower, the Bid Acceptances, the Acceptance Notices, the
Guaranties, the Disclosure Schedule, the Security Instruments, the agreements
with the Managing Agents referred to in Section 2.8, any amendments to any of
the foregoing, and all other agreements, certificates, notices and disclosures
at any time executed or certified by a Designated Officer of and on behalf of an
Obligor and delivered by such Obligor or such Designated Officer in connection
herewith or therewith (exclusive of term sheets, commitment letters,
correspondence and similar documents used in the negotiation hereof or thereof).
"Loan Note" has the meaning given it in Section 2.1(c).
"Majority Lenders" means Lenders whose aggregate Percentage Shares
exceed 50%.
"Managing Agents" means Administrative Agent, each Documentation Agent
and the Syndication Agent hereunder and their successors and assigns in such
capacities.
"Margin Regulations" means, as applicable, Regulations G, U and X of
the Board of Governors of the Federal Reserve System, as from time to time in
effect.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the financial condition of Parent, Borrower and its Subsidiaries taken as a
whole, or, prior to the Effective Date of this Agreement, Mesa or Petroleum, (b)
the ability of Parent, Borrower and its Subsidiaries taken as a whole to operate
their respective businesses, (c) the ability of Borrower to meet its obligations
under the Loan Documents on a timely basis or (d) the ability of Obligors taken
as a whole to meet their obligations under the Loan Documents on a timely basis;
provided, however, that a material adverse effect that is limited to an
Unrestricted Subsidiary shall not (i) be a Material Adverse Effect or (ii) be
included in the determination of whether a Material Adverse Effect shall have
occurred or shall be expected to occur.
"Maturity Date" means the Original Maturity Date, or such other later
date as may result from any extension requested by Borrower and consented to by
the Lenders pursuant to Section 2.12.
"Maximum Lawful Rate" has the meaning given it in Section 8.6.
"Merger Agreement" has the meaning given it in Section 3.1(e).
"Mergers" has the meaning given it in Section 3.1(e).
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"Mesa" means Mesa, Inc., a Delaware corporation.
"Mesa Operating" means Mesa Operating Co., a Delaware corporation.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto that is a nationally-recognized rating agency.
"Note" means any Loan Note, Swing Line Note or Competitive Bid Note.
"Notice Period" has the meaning given it in Section 6.4.
"Obligations" means all Debt from time to time owing by any of Obligors
to any Agent or any Lender under or pursuant to any of the Loan Documents,
including, without limitation, all Swing Line Obligations and Competitive Bid
Obligations. "Obligation" means any part of the Obligations.
"Obligor" means Parent, Borrower and each of the Restricted
Subsidiaries.
"Original Maturity Date" means the earlier of (a) August 5, 1998 and
(b) the date on which the Loan Commitment of each Lender is reduced to zero or
terminated.
"Parent" means Pioneer Natural Resources Company, a Delaware
corporation.
"Parent Guaranty" means a guaranty substantially in the form of Exhibit
B-2, with appropriate insertions and deletions, executed or to be executed by
the Parent, as from time to time amended, modified, or supplemented, as the case
may be.
"Percentage Share" means, with respect to any Lender (a) when used in
Section 2.1 or 2.3, in any Request for Advance or when no Loans (other than
Swing Line Advances or Competitive Bid Advances, if applicable) are outstanding
hereunder, the percentage set forth opposite such Lender's name on Schedule 1 to
this Agreement, or in documents of assignment delivered pursuant to Section 8.8,
as such percentage may be adjusted from time to time by such assignment
documents and (b) when used otherwise, the percentage equal to the unpaid
principal balance of such Lender's Loans, other than Swing Line Advances and
Competitive Bid Advances, at the particular time in question divided by the
aggregate unpaid principal balance of all Loans of all Lenders, other than Swing
Line Advances and Competitive Bid Advances, at such time.
"Permitted Liens" means (a) Liens for taxes, assessments or other
governmental charges or levies if the same shall not at the particular time in
question be due and delinquent or (if foreclosure, distraint, sale or other
similar proceedings shall not have been commenced or, if commenced, shall have
been stayed) are being contested in good faith and by appropriate proceedings,
and if the subject Borrower or Parent shall have set aside on its books such
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reserves (segregated to the extent required by sound accounting practices) as
may be required by GAAP or otherwise determined by the Board of Directors of
Borrower or Parent to be adequate with respect thereto; (b) Liens of carriers,
warehousemen, mechanics, laborers, materialmen, landlords, vendors, workmen, and
operators arising in the ordinary course of business or incident to the
exploration, development, operations and maintenance of oil, gas and other
hydrocarbon properties and related facilities and assets, for sums not yet due
or being contested in good faith and by appropriate proceedings, if Borrower or
Parent shall have set aside on its books such reserves (segregated to the extent
required by sound accounting practices) as may be required by GAAP or otherwise
determined by the Board of Directors of Borrower or Parent to be adequate with
respect thereto; (c) Liens incurred in the ordinary course of Obligors'
respective businesses in connection with worker's compensation, unemployment
insurance and other social security legislation (other than ERISA); (d) Liens
incurred in the ordinary course of Obligors' businesses to secure the
performance of bids, tenders, trade contracts, leases (statutory only),
statutory obligations, surety and appeal bonds, performance and return-of-money
bonds and other obligations of a like nature; (e) Liens, easements,
rights-of-way restrictions, servitudes, permits, conditions, covenants,
exceptions, reservations and other similar encumbrances incurred in the ordinary
course of Obligors' businesses or existing on property and not in the aggregate
materially interfering with the ordinary conduct of Obligors' businesses; (f)
legal or equitable encumbrances deemed to exist by reason of negative pledges
such as in Section 5.2 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); (g) rights of a common owner of any interest in
property held by any Obligor as such common owner; (h) farmout, carried working
interest, joint operating, unitization, royalty, overriding royalty, sales and
similar agreements relating to the exploration or development of, or production
from, oil and gas properties incurred in the ordinary course of business, (i)
Liens arising pursuant to Section 9.319 of the Texas Uniform Commercial Code or
other similar statutory provisions of other states with respect to production
purchased from others; (j) Liens represented by capital leases permitted under
this Agreement; (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 existing pursuant to the Security
Instruments; (m) Liens existing in favor of Agents and Lenders under the Loan
Documents; (n) Liens on assets of a Subsidiary of Parent or Borrower in favor of
Parent, Borrower or another Restricted Subsidiary; (o) Liens on any property or
assets owned or leased by Parent, Borrower or any Subsidiary existing at the
time such property or asset was acquired (or at the time such Person became a
Subsidiary); provided that (1) in the case of the acquisition of a Subsidiary,
such lien only encumbers property or assets of such Subsidiary immediately prior
to or at the time of acquisition by Borrower of such Subsidiary and (2) Borrower
and Parent will use their best efforts to eliminate such Liens in a timely
manner; (p) purchase money Liens, so long as such Liens only encumber property
or assets (including any improvements thereon, accessions thereto or proceeds
thereof) acquired with the proceeds of purchase money indebtedness incurred in
connection with such Lien; (q) Liens on the stock or other ownership interest of
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or in any Unrestricted Subsidiary; (r) Liens in renewal or extension of any of
the foregoing permitted Liens, so long as limited to the property or assets
encumbered and the amount of indebtedness secured immediately prior to such
renewal or extension; and (s) Liens approved in writing by or on behalf of the
Required Lenders.
"Person" means an individual, corporation, company, partnership,
association, joint stock company, trust or trustee thereof, estate or executor
thereof, unincorporated organization or joint venture, court or governmental
unit or any agency or subdivision thereof, or any other legally recognizable
entity.
"Petroleum" means Parker & Parsley Petroleum Company, a Delaware
corporation.
"Pledge Agreement" means a Pledge Agreement substantially in the form
of Exhibit M hereto, or other form of pledge agreement or deed of mortgage, in
form and substance satisfactory to the Managing Agents and the subject Obligor,
pledging an interest in the capital shares or stock of, partnership interests
in, or other ownership interest in, a Restricted Subsidiary as from time to time
amended, modified and supplemented.
"Primary Facility" means that certain Credit Facility Agreement, dated
as of August 7, 1997, among Pioneer Natural Resources USA, Inc., as Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders party thereto, as such agreement may be amended, modified or restated
from time to time.
"Rate Election" has the meaning given it in Section 2.3.
"Rating Agencies" means any or all of S&P or Moody's.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as from time to time in effect.
"Replacement Lenders" is defined in Section 2.12(c)(ii).
"Request for Advance" means a written or telephonic request, or a
written confirmation, made by a Borrower which meets the requirements of Section
2.2.
"Request for Competitive Bid Offer" has the meaning given it in Section
2.22.
"Request for Swing Line Bid" has the meaning given it in Section
2.5(a).
"Required Lenders" means Lenders whose aggregate Percentage Shares
exceed 66 2/3%.
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"Reserve Percentage" means, on any day with respect to each particular
Eurodollar Portion in a Tranche, the maximum reserve requirement, as determined
by Administrative Agent (including without limitation any basic, supplemental,
marginal, emergency or similar reserves), expressed as a percentage and rounded
to the nearest 1/100th of 1%, which would then apply to Administrative Agent
under Regulation D or successor regulations issued from time to time by the
Board of Governors of the Federal Reserve System with respect to "Eurocurrency
liabilities" (as such term is defined in Regulation D) equal in amount to
Administrative Agent's Eurodollar Portion in such Tranche, were Administrative
Agent to have any such Eurocurrency liabilities. If such reserve requirement
shall change after the date hereof, the Reserve Percentage shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each such change in such reserve requirement.
"Restricted Payment" means any investment, contribution, distribution,
loan or advance of cash to a Person other than a Restricted Subsidiary, other
than:
(a) prudent short-term investments;
(b) investments, contributions, distributions, loans or advances disclosed in
the Updated Financial Statements or in the Disclosure Schedule or in
disclosures made subsequent to the date hereof and consented to in writing
by or on behalf of the Majority Lenders or otherwise made to effect the
Mergers and the subsequent restructuring of certain of the Restricted
Subsidiaries, as described in the Merger Agreement;
(c) investments, contributions, loans or advances made by any Obligor in the
ordinary course of its business; or
(d) contributions made by Borrower to any of its Subsidiaries arising out of or
in respect of Letters of Credit (as defined in the Primary Facility) issued
under the Primary Facility and used for the general corporate purposes of
such Subsidiary (i) so long as no amounts have been drawn under any such
Letter of Credit or (ii) to the extent that Borrower has been reimbursed by
such Subsidiary for amounts drawn under any such Letter of Credit.
provided, however, that any loan, advance, contribution or investment by
Borrower or any Restricted Subsidiary to any Restricted Subsidiary which is not
a guarantor of Borrower's obligations shall be a Restricted Payment.
"Restricted Subsidiary" means each Subsidiary of Borrower or Parent
that, at the particular time in question, owns directly or indirectly any
material assets or any interest in any other Restricted Subsidiary or has not
been designated as an Unrestricted Subsidiary. The Restricted Subsidiaries on
the Effective Date are listed on Schedule 3 attached hereto and each other
Subsidiary of Borrower as of the Effective Date shall be an Unrestricted
Subsidiary. A Restricted Subsidiary shall remain such (even if it no longer owns
directly or indirectly any interest in any of the material assets) until
designated as an Unrestricted Subsidiary pursuant to Section 5.2(i).
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"Revolving Loan" has the meaning given it in Section 2.1(c).
"Revolving Loan Advance" has the meaning given it in Section 2.1(a).
"ss.956" has the meaning given it in Section 6.1(k).
"S&P" means Standard & Poor's Ratings Group and any successor thereto
that is a nationally-recognized rating agency.
"Security Instruments" shall mean the agreements or instruments
described or referred to in Schedule 5, the Guaranties, the Pledge Agreement,
and any and all other agreements or instruments now or hereafter executed and
delivered by any Obligor or any other Person in connection with, or as security
for the payment or performance of, the Notes, this Agreement or the Guaranties,
as any such instrument or agreement may be supplemented, amended, renewed,
extended or restated from time to time.
"Stock Pledge Release Date" has the meaning given to it in Section
8.16.
"Subsidiary" means, with respect to any Person, any corporation, which
is directly or indirectly (through one or more intermediaries) controlled by or
with respect to which fifty percent (50%) or more of the stock having ordinary
voting power to elect the board of directors is owned by such Person, or any
association, partnership, joint venture, or other non-corporate business entity,
enterprise or organization which is directly or indirectly (through one or more
intermediaries) controlled by, or owned one hundred percent (100%) by, such
Person, provided that associations, joint ventures or other relationships (a)
which are established pursuant to an operating agreement or similar agreement or
which are partnerships for purposes of federal income taxation only, (b) which
are not partnerships (or subject to the Uniform Partnership Act) under
applicable state law, and (c) whose businesses are limited to the exploration,
development and operation of oil, gas or mineral properties and interests owned
directly by the parties in such associations, joint ventures or relationships,
shall not be deemed to be "Subsidiaries" of such Person.
"Swing Line Advances" has the meaning given it in Section 2.4.
"Swing Line Bid" has the meaning given it in Section 2.5(a).
"Swing Line Note" has the meaning given it in Section 2.6(d).
"Swing Line Obligations" means, at the particular time in question, the
sum of all outstanding Swing Line Advances.
"Swing Line Rate" has the meaning given it in Section 2.5(b).
"Syndication Agent" means The Chase Manhattan Bank, as Syndication
Agent hereunder and its successors and assigns in such capacity.
"Taxes" has the meaning given it in Section 2.20.
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"Termination Event" means (a) the occurrence with respect to any ERISA
Plan of (1) a reportable event described in Sections 4043(b)(5) or (6) of ERISA
or (2) any other reportable event described in Section 4043(b) of ERISA other
than a reportable event not subject to the provision for 30-day notice to the
Pension Benefit Guaranty Corporation pursuant to a waiver by such corporation
under Section 4043(a) of ERISA, or (b) the withdrawal of any Obligor or of any
Affiliate of any Obligor from an ERISA Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c) the
filing of a notice of intent to terminate any ERISA Plan or the treatment of any
ERISA Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any ERISA Plan by the Pension Benefit
Guaranty Corporation under Section 4042 of ERISA, or (e) any other event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any ERISA Plan.
"364 Day Facility" means the facility for loans established pursuant to
this Agreement.
"Total Capitalization" means the sum (without duplication) of (i)
Consolidated Total Funded Debt of the Parent and its Subsidiaries, plus (ii)
Consolidated shareholder's equity of the Parent and its Subsidiaries.
"Total Funded Debt" means all Debt of the type referred to in clauses
(a), (b), (c), (d), (g) (excluding Debt of the type referred to in clause (e) of
the definition of "Debt") and (h) of the definition of "Debt".
"Tranche" has the meaning given it in Section 2.3.
"Unrestricted Subsidiary" means each Subsidiary of Borrower which is
not designated as a Restricted Subsidiary on Schedule 3 attached hereto or is
designated by Borrower as an Unrestricted Subsidiary pursuant to Section 5.2(i).
"Updated Financial Statements" means (a) the audited annual
Consolidated financial statements of Petroleum and Mesa and their respective
Consolidated Subsidiaries dated as of December 31, 1996, and (b) the unaudited
Consolidated financial statements and unaudited consolidating balance sheets and
statements of operations of Petroleum and Mesa and their respective Consolidated
Subsidiaries prepared in reasonable detail in accordance with GAAP and dated as
of March 31, 1997.
Section 1.2 Exhibits and Schedules. All Exhibits and Schedules
attached to this Agreement are a part hereof for all purposes.
Section 1.3 Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein, the terms defined in
this Agreement which refer to a particular agreement, instrument or document
also refer to and include all renewals, extensions, modifications, amendments
and restatements of such agreement, instrument or document, provided that
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nothing contained in this Section shall be construed to authorize or require any
such renewal, extension, modification, amendment or restatement.
Section 1.4 References and Titles. All references in this Agreement to
Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this 364 Day Facility", "364 Day Facility", "this instrument",
"herein", "hereof", "hereby", "hereunder" and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly
so limited. The phrases "this section" and "this subsection" and similar phrases
refer only to the sections or subsections hereof in which such phrases occur.
The word "or" is not exclusive, and the word "including" (in its various forms)
means "including without limitation". Pronouns in masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
Section 1.5 Calculations and Determinations. All calculations under
the Loan Documents of interest chargeable with respect to Eurodollar Portions
and Competitive Bid Advances shall be made on the basis of actual days elapsed
(including the first day but excluding the last) and a year of 360 days,
subject, however, to the limitations set forth in Section 8.6 hereof. All other
calculations of interest and fees made under the Loan Documents shall be made on
the basis of actual days elapsed (including the first day but excluding the
last) and a year of 365 or 366 days, as appropriate. Unless otherwise expressly
provided herein or unless Required Lenders otherwise consent, all financial
statements and reports furnished to Administrative Agent or any other Lender
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with GAAP.
ARTICLE 2
LOANS
Section 2.1 Making the Loans.
(a) Subject to the terms and conditions hereof, each Lender agrees to make
advances on a revolving basis (herein a "Revolving Loan Advance") to
Borrower from time to time on any Business Day during the Loan Commitment
Period, equal to such Lender's Percentage Share of the aggregate amount of
Revolving Loan Advances requested by Borrower to be made on such day, so
long as the aggregate amount of (i) all Lenders' Revolving Loan Advances
(including any Revolving Loan Advances to be made but not yet made pursuant
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to a Request for Advance) outstanding at any time plus (ii) all Lenders'
Swing Line Advances to Borrower plus (iii) all Lenders' Competitive Bid
Advances outstanding at such time, does not exceed the Facility Amount.
Subject to the terms and conditions hereof, Borrower may borrow, repay and
reborrow Revolving Loan Advances.
(b) No Lender shall be permitted or required to make any Revolving Loan Advance
under this Agreement unless the aggregate of such Lender's Revolving Loan
Advances under this Agreement (including any Revolving Loan Advances to be
made but not yet made pursuant to a Request for Advance) outstanding at any
time is less than or equal to the least of (i) such Lender's Loan
Commitment or (ii) such Lender's Percentage Share of the Facility Amount.
(c) The aggregate amount of all Revolving Loan Advances requested of all
Lenders in any Request for Advance must be an integral multiple of
$1,000,000 which equals or exceeds $10,000,000 or must equal the least of
the unadvanced portion of the aggregate Loan Commitments of all Lenders or
the unadvanced portion of the Facility Amount. The obligation of Borrower
to repay to each Lender the aggregate amount of all Revolving Loan Advances
made by such Lender to Borrower (herein called such Lender's "Revolving
Loan"), together with interest accruing in connection therewith, shall be
evidenced by a single promissory note (herein called such Lender's "Loan
Note") made by Borrower payable to the order of such Lender in the form of
Exhibit A-1 with appropriate insertions. The amount of principal owing on
any Lender's Loan Note at any given time shall be the aggregate amount of
all Revolving Loan Advances theretofore made by such Lender minus all
payments of principal theretofore received by such Lender on such Loan
Note. Interest on each Loan Note shall accrue and be due and payable as
provided herein and therein.
Section 2.2 Requests for Revolving Loan Advances. Borrower must give
to Administrative Agent not later than 11:00 a.m., Dallas, Texas time, for same
day funding, and not later than 1:00 p.m., Dallas, Texas time, for next Business
Day funding, written notice, or telephonic notice promptly confirmed in writing,
of any requested Revolving Loan Advances, after which Administrative Agent shall
give each other Lender prompt notice thereof. Each such written request or
confirmation must be made in the form and substance of Exhibit C attached
hereto, duly completed (herein called a "Request for Advance"). Each such
telephonic request shall be deemed a representation, warranty, acknowledgment
and agreement by Borrower as to the matters which are required to be set out in
such written confirmation. If all conditions precedent to a Revolving Loan
Advance have been met, each Lender will on the date requested remit, not later
than 1:00 p.m., Dallas, Texas time, for same day funding, and not later than
11:00 a.m., Dallas, Texas time, the following Business Day for next Business Day
funding, to Administrative Agent at Administrative Agent's office in Dallas,
Texas, or to such other office as Administrative Agent may specify from time to
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time by notice to Lenders, the amount of such Lender's Revolving Loan Advance in
immediately available funds, and upon receipt of such funds, unless to its
actual knowledge any conditions precedent to such Revolving Loan Advances have
been neither met nor waived as provided herein, Administrative Agent shall
promptly make the Revolving Loan Advances available to Borrower. Each Request
for Advance shall be irrevocable and binding on Borrower. Unless Administrative
Agent shall have received prompt notice from a Lender that such Lender will not
make available to Administrative Agent such Lender's Revolving Loan Advance,
Administrative Agent may in its discretion assume that such Lender has made such
Revolving Loan Advance available to Administrative Agent in accordance with this
Section and Administrative Agent may if it chooses, in reliance upon such
assumption, make such Revolving Loan Advance available to Borrower. If and to
the extent such Lender shall not so make its Revolving Loan Advance available to
Administrative Agent, such Lender and Borrower severally agree to pay or repay
to Administrative Agent on demand the amount of such Revolving Loan Advance
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is paid or repaid to
Administrative Agent, (i) if paid or repaid by Borrower at the interest rate
applicable at the time to the other Revolving Loan Advances made on such date of
such Revolving Loan Advance and (ii) if paid or repaid by such Lender, at the
Federal Funds Rate. The failure of any Lender to make any Revolving Loan Advance
to be made by it hereunder shall not relieve any other Lender of its obligation
hereunder, if any, to make its Revolving Loan Advance, but no Lender shall be
responsible for the failure of any other Lender to make any Revolving Loan
Advance to be made by such other Lender.
Section 2.3 Rate Elections. Borrower may from time to time designate
all or any portions of the Loans (including any yet to be made Revolving Loan
Advances which are to be made prior to or at the beginning of the designated
Eurodollar Interest Period but excluding any portions of the Loans which are
required to be repaid prior to the end of the designated Eurodollar Interest
Period and excluding any Competitive Bid Advance and any Swing Line Advance) as
a "Tranche", which term refers to a set of Eurodollar Portions of the same type
with identical Eurodollar Interest Periods and with each Lender participating in
such Tranche in accordance with its Percentage Share. Without the consent of
Required Lenders, Borrower may not make such election, and Administrative Agent
and Lenders shall not be required to give effect to such election, during the
continuance of a Default and Borrower may make such an election with respect to
already existing Eurodollar Portions only if such election will take effect at
or after the termination of the Eurodollar Interest Period applicable thereto.
Each election by Borrower of a Tranche shall:
(a) Be made in writing in the form and substance of Exhibit D attached hereto,
duly completed, herein called a "Rate Election";
(b) Specify the aggregate amount of the Loans which Borrower desires to
designate as such Tranche, the first day of the Eurodollar Interest Period
which is to apply thereto, and the length of such Eurodollar Interest
Period; and
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(c) Be received by Administrative Agent not later than 10:00 a.m., Dallas,
Texas time, on the third Business Day preceding the first day of the
specified Eurodollar Interest Period.
Promptly after receiving any such Rate Election which meets the
requirements of this Section, Administrative Agent shall notify each Lender
thereof. Each Rate Election shall be irrevocable. Borrower may not make any Rate
Election which does not specify an Eurodollar Interest Period complying with the
definition of "Eurodollar Interest Period" in Section 1.1, and the aggregate
amount of the Tranche elected in any Rate Election must be $10,000,000 or a
higher integral multiple of $1,000,000. Upon the termination of each Eurodollar
Interest Period the portion of each Loan within the related Tranche shall,
unless the subject of a new Rate Election then taking effect, automatically
become a part of the Base Rate Portion of such Loan and become subject to all
provisions of the Loan Documents governing such Base Rate Portion. Borrower
shall have no more than fifteen (15) Tranches in effect at any time.
If requested to do so by Borrower through Administrative Agent at least
two (2) Business Days before the delivery date of any proposed Rate Election,
each Lender will advise Administrative Agent before 10:00 a.m., Dallas, Texas
time, on the Business Day following receipt of such request as to whether, if
Borrower selects a specified duration of nine (9) or twelve (12) months for the
Eurodollar Interest Period applicable to such proposed Rate Election, such
Lender expects that deposits in dollars with a corresponding term will be
available to it in the relevant market on the first day of such Eurodollar
Interest Period in the amount required to fund the Eurodollar Portion of its
Loan to which such Eurodollar Interest Period would apply. Unless a Lender
responds by such time to the effect that it expects such deposits will be
available to it, Borrower shall not be entitled to select such proposed duration
for such Eurodollar Interest Period.
Each Lender may, if it so elects, fulfill its obligation to fund any
Eurodollar Portion by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Lender) to fund or continue such
Eurodollar Portion; provided, however, that such Eurodollar Portion shall be
deemed to have been made and held by such Lender, and the obligations of the
subject Borrower to repay such Eurodollar Portion shall nevertheless be to such
Lender for the account of such branch, or Affiliate (or international banking
facility). In addition, Borrower hereby consents and agrees that, for purposes
of any determination to be made for purposes of Sections 2.17, 2.18, 2.19 and
2.20, it shall be conclusively assumed that such Lender elected to fund all
Eurodollar Portions by purchasing Dollar deposits in the interbank eurodollar
market of its designated office.
Section 2.4 Swing Line Borrowings. In addition to borrowings pursuant
to Section 2.1(a) or Section 2.22, Borrower may request each Lender severally to
submit offers to make advances to Borrower on any Business Day (unless Borrower
and Administrative Agent agree otherwise and notify Lenders) during the Loan
Commitment Period as provided in Sections 2.5 and 2.6 (herein called "Swing Line
Advances"); provided, however, that (a) each Lender may, but shall have no
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obligation to, submit such offers and Borrower may, but shall have no obligation
to, accept any such offers, (b) at no time shall the outstanding aggregate
principal amount of all Swing Line Advances made by all Lenders under this
Agreement plus all "Swing Line Advances" (as defined in the Primary Facility),
if any, outstanding under the Primary Facility exceed $50,000,000, and (c) at no
time shall the sum of (1) the outstanding aggregate principal amount of all
Swing Line Advances made by all Lenders to Borrower, (2) the outstanding
aggregate principal amount of the Revolving Loans, and (3) the outstanding
aggregate principal amount of all Competitive Bid Advances, exceed the Facility
Amount.
Section 2.5 Procedure for Swing Line Advances.
(a) No later than 11:00 a.m., Dallas, Texas time, on each Business Day that
Borrower desires the submission of an offer to make a Swing Line Advance,
Borrower shall transmit to each Lender (which has indicated to Borrower its
interest in making a Swing Line Advance) and to Administrative Agent by
telecopy a notice in substantially the form of Exhibit E attached hereto
(herein called a "Request for Swing Line Bid"), requesting each Lender in
its sole discretion to submit an offer to make a Swing Line Advance by
transmitting to Borrower and Administrative Agent by telecopy a notice in
substantially the same form as Exhibit F attached hereto (herein called a
"Swing Line Bid"). Each Swing Line Bid must comply with the requirements of
this Section and must be received by Administrative Agent and Borrower by
telecopy at their respective offices by no later than 12:00 noon, Dallas,
Texas time, on the date of the Request for Swing Line Bid.
(b) Each Swing Line Bid must specify the Lender and the amount of the Swing
Line Advance that such Lender is committed, subject to acceptance of such
Swing Line Bid by Borrower pursuant to Section 2.5(f) and the provisions of
Sections 2.5(c) and (d), to lend to Borrower on such date. Each Swing Line
Bid must specify the rate of interest per annum which will be the fixed
rate of interest to be charged for such Swing Line Advance until maturity
(herein called the "Swing Line Rate"). Unless Borrower notifies the Lenders
otherwise in its Request for Swing Line Bid and Administrative Agent does
not promptly oppose such notice, each Swing Line Advance shall mature on
the next Business Day and each Swing Line Bid shall specify such maturity
date; provided that no Swing Line Advance may have a term of more than
fourteen (14) Business Days, and no Swing Line Advance shall mature after
the Maturity Date.
(c) Any Swing Line Bid shall be disregarded, and may not be accepted, by
Borrower if such Swing Line Bid:
(1) is not substantially in conformity with Exhibit F or does not specify
all of the information required by Section 2.5(b);
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(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set forth in
Section 2.5(b); or
(4) is received by Borrower after the time set forth in Section 2.5(a).
(d) Borrower may accept any Swing Line Bid(s) in whole or in part; provided
that:
(1) the aggregate principal amount of all Swing Line Advances to Borrower
under this Agreement plus all "Swing Line Advances" (as defined in
the Primary Facility), if any, outstanding under the Primary Facility
may not exceed $50,000,000;
(2) the sum of (i) the aggregate principal amount of the Revolving Loans
outstanding at such time, (ii) the aggregate principal amount of
Swing Line Advances outstanding at such time, and (iii) the aggregate
principal amount of Competitive Bid Advances outstanding at such
time, does not exceed the Facility Amount;
(3) the principal amount of each Swing Line Advance must be in a minimum
of $1,000,000 and multiples of $100,000 in excess thereof; and
(4) Borrower may not accept any Swing Line Bid that is described in
Section 2.5(c) or that otherwise fails to comply with the
requirements of this Agreement.
(e) Borrower shall not be required to accept Swing Line Bids on the basis of
the lowest Swing Line Rate offered, but may in its sole discretion accept
any of the Swing Line Bids regardless of the Swing Line Rate offered.
Notwithstanding the procedure set forth in this Section, Borrower may
request and accept Swing Line Advances from any Lender with terms greater
than one (1) Business Day, (but not greater than fourteen (14) Business
Days, and maturing on or before the Maturity Date), and Borrower is not
required to make such requests to all of the Lenders, provided that such
procedure is otherwise in compliance with Sections 2.4, 2.6 and 2.5(f); and
(f) Borrower shall confirm its acceptance or rejection of the Swing Line
Advances offered to it by telecopying to Administrative Agent a notice in
substantially the form of Exhibit G attached hereto (herein called an
"Acceptance Notice") which shall set forth the Lenders and the amount of
each Lender's Swing Line Advances accepted by Borrower and the Swing Line
Rate. Such Acceptance Notice must be received by Administrative Agent by no
later than 12:15 p.m., Dallas, Texas time, on the date of request for Swing
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Line Bid. Administrative Agent shall notify the Lenders that submitted a
Swing Line Bid for such Business Day of Borrower's decision by telecopying
to each such Lender a copy of the Acceptance Notice by no later than 12:30
p.m., Dallas, Texas time, on the date of request for Swing Line Bid, unless
a later time is agreed to by a Lender in respect of the Acceptance Notice
to be received by such Lender.
Section 2.6 Swing Line Advances.
(a) Each Lender whose Swing Line Bid is accepted by Borrower on a timely basis
pursuant to the Acceptance Notice shall wire the amount of its Swing Line
Advance in immediately available funds by no later than 1:00 p.m., Dallas,
Texas time on the date of request for Swing Line Bid, on such day to
Administrative Agent, which shall deposit such funds to an account
designated by Borrower by no later than 1:15 p.m. on the same day.
(b) Borrower shall repay each such Swing Line Advance on or before 1:00 p.m.,
Dallas, Texas time, on the following Business Day or at such other maturity
(such date of maturity being no more than fourteen (14) Business Days after
the date of the Swing Line Advance and no later than the Maturity Date) as
is agreed to by Borrower, Administrative Agent and the funding Lenders. The
repayment plus accrued interest shall be paid by Borrower (which payment
may be in the form of a Swing Line Advance advanced to Borrower on that
day) to Administrative Agent in immediately available funds with
instructions by telecopy to Administrative Agent specifying the amounts and
the Lenders receiving application of such proceeds. If any Lender makes a
Swing Line Advance on a day on which Borrower is to repay all or any part
of an outstanding Swing Line Advance from such Lender, if requested by
Borrower, such Lender shall apply the proceeds of its new Swing Line
Advance to make such repayment and, in such instance, only an amount equal
to the difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Lender to Administrative Agent
as provided in Section 2.6(a), or remitted by Borrower to Administrative
Agent as provided in this Section, as the case may be.
(c) Interest on the Swing Line Advances shall be computed on the basis of a
year of 365 or 366 days and actual days elapsed (including the first day,
but excluding the last day) occurring in the period for which payable and
shall not exceed Maximum Lawful Rate. Past due principal and interest (to
the extent allowed by law) shall bear interest at the lesser of the Default
Rate or the Maximum Lawful Rate and shall be payable on demand.
(d) The Swing Line Advances made by each Lender shall be evidenced by a single
promissory note of Borrower payable to the order of such Lender in the
amount of $50,000,000 and in substantially the form of Exhibit A-2 attached
hereto, with appropriate insertions (herein called a "Swing Line Note").
The date, amount, Swing Line Rate and maturity of each Swing Line Advance
made by a Lender to Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books.
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(e) The Swing Line Advances will be used by Borrower to provide working capital
for the operations of Borrower and its Subsidiaries and for general
business purposes. No Swing Line Advances shall be used for the purpose of
purchasing or carrying any Margin Stock in violation of the Margin
Regulations.
(f) The obligation of Lenders to make each Swing Line Advance after timely
acceptance by Borrower is further subject to the conditions contained in
Article 3.
Section 2.7 Facility Fee. In consideration of each Lender's
commitment to make Revolving Loan Advances, Swing Line Advances and Competitive
Bid Advances, Borrower will pay, or cause the payment, to Administrative Agent
for the account of each Lender an annual facility fee payable to each Lender
determined by applying the Facility Fee Rate to such Lender's Percentage Share
of the Facility Amount as of the date of such payment, payable in arrears
quarterly until the Maturity Date, with the first payment thereof to be
September 30, 1997 and subsequent payments on the last day of each successive
calendar quarter ending on each September, December, March and June, and the
final payment thereof on the Maturity Date.
Section 2.8 Managing Agents' Fees. In addition to all other amounts
due to the Managing Agents under the Loan Documents, Borrower will pay the
non-refundable annual fees set forth in those certain Fee Letters dated June 25,
1997.
Section 2.9 Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) 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) Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of (i) all Lenders' Revolving Loan
Advances (including any Revolving Loan Advances to be made but not yet made
pursuant to a Request for Advance) outstanding at any time plus (ii) all
Lenders' Swing Line Advances to Borrower plus (iii) all Lenders'
Competitive Bid Advances outstanding at such time, would exceed the total
Commitments.
(c) Borrower shall notify the Administrative Agent of any election to terminate
or reduce the Commitments under paragraph (b) of this Section at least two
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 Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by Borrower may state that such notice is conditioned
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upon the effectiveness of other credit facilities, in which case such
notice may be revoked by 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 Commitments.
Section 2.10 Optional Prepayments. Borrower may, upon notice to each
Lender identical to that required for related borrowings under this Agreement,
from time to time and without premium or penalty, prepay its Notes, in whole or
in part, so long as the aggregate amounts of all partial prepayments of
principal concurrently paid on such Notes equals $5,000,000 or any higher
integral multiple of $1,000,000 or the aggregate outstanding balance of the
Loans, and so long as Borrower does not prepay any Revolving Loan Advance,
Competitive Bid Advance or Swing Line Advance except in accordance herewith. Any
amounts prepaid pursuant to this Section shall be in addition to, and not in
lieu of, all payments otherwise required to be paid under the Loan Documents at
the time of such prepayment.
Section 2.11 Payments to Lenders. Except as expressly set forth in
Section 2.6(b) with respect to repayment of Swing Line Advances and Section
2.22(b) with respect to repayment of Competitive Bid Advances, Borrower will
make each payment which it owes under the Loan Documents to Administrative Agent
at its principal banking office in Dallas, Texas, or to such other office as
Administrative Agent may specify from time to time by notice to Borrower for the
account of each Lender to whom such payment is owed, without the application of
any setoff, deduction or counterclaim. Each such payment must be received by
Administrative Agent not later than 1:00 p.m., Dallas, Texas time, on the date
such payment becomes due and payable, in lawful money of the United States of
America and in immediately available funds. Any payment received by
Administrative Agent after such time will be deemed to have been made on the
next Business Day. Should any such payment become due and payable on a day other
than a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (except, with respect to any Eurodollar Portion, as may
be otherwise required by the definition of Eurodollar Interest Period), and, in
the case of a payment of principal or past due interest, interest shall accrue
and be payable thereon for the period of such extension as provided in the Loan
Document under which such payment is due.
All payments applied to principal or interest on any Note shall be
applied first to any interest then due and payable, then to principal then due
and payable, and last to any prepayment of principal and interest in compliance
with Section 2.10. Unless otherwise expressly provided, all payments by any
Obligor pursuant to this Agreement or any other Loan Document shall be made by
such Obligor to Administrative Agent for account of Agents and Lenders pro rata
among Obligations of the same type and, if applicable, having the same
Eurodollar Interest Period or, in the case of Swing Line Advances or Competitive
Bid Advances, the same maturity date.
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Section 2.12 Extension of Maturity Date and of Commitments.
(a) Subject to the other provisions of this Agreement and provided that no
Event of Default has occurred and is continuing, the total Commitments
shall be effective for an initial period from the Effective Date to the
Original Maturity Date; provided that the Maturity Date, and concomitantly
the total Commitments, may be extended for successive 364 day periods
expiring on the date which is 364 days from the then scheduled Maturity
Date. If Borrower shall request in a Certificate of Extension delivered to
the Administrative Agent not more than 60 days and not less than 45 days
prior to the Maturity Date that the Maturity Date be extended for 364 days
from the then scheduled Maturity Date, then the Administrative Agent shall
promptly notify each Lender of such request and each Lender shall notify
the Administrative Agent, no later than 30 days prior to the Maturity Date,
whether such Lender, in the exercise of its sole discretion, will extend
the Maturity Date for such 364 day period. Any Lender which shall not
timely notify the Administrative Agent whether it will extend the Maturity
Date shall be deemed to not have agreed to extend the Maturity Date. No
Lender shall have any obligation whatsoever to agree to extend the Maturity
Date. Any agreement to extend the Maturity Date by any Lender shall be
irrevocable, except as provided in clause (c) of this Section.
(b) If all Lenders notify the Administrative Agent pursuant to clause (a) of
this Section of their agreement to extend the Maturity Date, then the
Administrative Agent shall so notify each Lender and Borrower, and such
extension shall be effective without other or further action by any party
hereto for such additional 364 day period.
(c) If Lenders constituting at least the Majority Lenders approve the extension
of the then scheduled Maturity Date (such Lenders agreeing to extend the
Maturity Date herein called the "Accepting Lenders") and if one or more
Lenders shall notify, or be deemed to notify, the Administrative Agent
pursuant to clause (a) of this Section that they will not extend the then
scheduled Maturity Date (such Lenders herein called the "Declining
Lenders"), then (A) the Administrative Agent shall promptly so notify
Borrower and the Accepting Lenders, (B) the Accepting Lenders shall, upon
Borrower's election to extend the then scheduled Maturity Date in
accordance with clause (i) or (ii) below, extend the then scheduled
Maturity Date and (C) Borrower shall, pursuant to a notice delivered to the
Administrative Agent, the Accepting Lenders and the Declining Lenders, no
later than the tenth (10th) day following the date by which each Lender is
required, pursuant to clause (a) of this Section, to approve or disapprove
the requested extension of the total Commitments, either:
(i) elect to extend the Maturity Date with respect to the Accepting
Lenders and direct the Declining Lenders to terminate their
Commitments, which termination shall become effective on the date
which would have been the Maturity Date except for the operation of
this Section. On such date, (x) Borrower shall deliver a notice of the
effectiveness of such termination to the Declining Lenders with a copy
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to the Administrative Agent and (y) Borrower shall pay in full in
immediately available funds all Obligations of Borrower owing to the
Declining Lenders, including any amounts required pursuant to Section
2.19, and (z) upon the occurrence of the events set forth in clauses
(x) and (y), the Declining Lenders shall each cease to be a Lender
hereunder for all purposes, other than for purposes of Sections 2.16
through 2.20 and Section 6.4, and shall cease to have any obligations
or any Commitment hereunder, other than to the Agents pursuant to
Article 7, and the Administrative Agent shall promptly notify the
Accepting Lenders and Borrower of the new Commitments; or
(ii) elect to extend the Maturity Date with respect to the Accepting
Lenders and, prior to or no later than the then scheduled Maturity
Date, (A) to replace one or more of the Declining Lender or Declining
Lenders with another lender or lenders reasonably acceptable to the
Administrative Agent or any Accepting Lender (such lenders herein
called the "Replacement Lenders") and (B) Borrower shall pay in full
in immediately available funds all Obligations of Borrower owing to
any Declining Lenders which are not being replaced, as provided in
clause (i) above; provided that (x) the Replacement Lender or
Replacement Lenders shall purchase, and the Declining Lender or
Declining Lenders shall sell, the Declining Lender's or Declining
Lenders' rights and obligations hereunder without recourse or expense
to, or warranty by, such Declining Lender or Declining Lenders being
replaced for a purchase price equal to the aggregate outstanding
principal amount of the Obligations payable to such Declining Lender
or Declining Lenders plus any accrued but unpaid interest on such
Obligations and accrued but unpaid fees or other amounts owing in
respect of such Declining Lender's or Declining Lenders' Loans and
Commitments hereunder, and (y) upon the payment of such amounts
referred to in clause (x) and the execution of an Agreement to be
Bound by the Replacement Lender or Replacement Lenders and the
Declining Lender or Declining Lenders (which each such Declining
Lender agrees to execute promptly), the Replacement Lender or
Replacement Lenders shall each constitute a Lender hereunder and the
Declining Lender or Declining Lenders being so replaced shall no
longer constitute a Lender (other than for purposes of Sections 2.16
through 2.20 and Section 6.4), and shall no longer have any
obligations hereunder, other than to the Agents pursuant to Article 7;
or
(iii) elect to revoke and cancel the extension request in such Certificate
of Extension by giving notice of such revocation and cancellation to
the Administrative Agent (which shall promptly notify the Lenders
thereof) no later than the tenth (10th) day following the date by
which each Lender is required, pursuant to clause (a) of this Section,
to approve or disapprove the requested extension of the Maturity Date,
and concomitantly the total Commitments.
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If Borrower fails to timely provide the election notice referred to in
this clause (c), Borrower shall be deemed to have revoked and canceled the
extension request in the Certificate of Extension and to have elected not to
extend the Maturity Date, and, on the then scheduled Maturity Date, Borrower
shall repay in full all Obligations under the Loan Documents.
Section 2.13 [Intentionally Omitted].
Section 2.14 [Intentionally Omitted].
Section 2.15 [Intentionally Omitted].
Section 2.16 Capital Reimbursement. If either (a) the introduction or
implementation of, or the compliance with, or any change in, or in the
interpretation of, any law, rule or regulation, or (b) the introduction or
implementation of or the compliance with any request, directive or guideline
from any central bank or Governmental Authority (whether or not having the force
of law) affects or would affect the amount of capital required to be maintained
by any Lender or any corporation controlling any Lender, then, upon demand by
such Lender, Borrower will immediately pay to Administrative Agent for the
benefit of such Lender, from time to time as specified by such Lender, such
additional amount which such Lender shall determine to be appropriate to
compensate such Lender or any corporation controlling such Lender in light of
such circumstances, to the extent that such Lender reasonably determines that,
because of the existence of such circumstances, the amount of any such capital
would be increased or the rate of return on any such capital would be reduced,
in whole or in part, by or as a consequence of the existence of such Lender's
Commitments, its Loans, and its other commitments under this Agreement to
Borrower, subject to the provisions of Section 2.21.
Section 2.17 Increased Cost of Eurodollar Portions. If any applicable
domestic or foreign law, treaty, rule, directive or regulation (whether now in
effect or hereinafter enacted or promulgated, including Regulation D) or any
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law):
(a) shall change the basis of taxation of payments to any Lender of any
principal, interest, or other amounts attributable to any Eurodollar
Portion of its Loans or its Swing Line Advances or Competitive Bid Advances
or otherwise due under this Agreement in respect of any Eurodollar Portion
of its Loans or its Swing Line Advances or Competitive Bid Advances (other
than taxes imposed on the overall net income of such Lender or any lending
office of such Lender by any jurisdiction in which such Lender or any such
lending office is located);
(b) shall change, impose, modify, apply or deem applicable any reserve, special
deposit or similar requirements in respect of any Eurodollar Portion of any
Lender (excluding those for which such Lender is fully compensated pursuant
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to adjustments made in the definition of Adjusted Eurodollar Rate) or
against assets of, deposits with or for the account of, or credit extended
by, such Lender; or
(c) shall impose on any Lender, the certificate of deposit market or the
interbank eurocurrency deposit market any other condition affecting any
Eurodollar Portion;
and the result of any of the foregoing (a) through (c) is to (1) increase the
cost to any Lender of funding or maintaining any Eurodollar Portion, Swing Line
Advance or Competitive Bid Advance, as the case may be, or (2) to reduce the
amount of any sum receivable by any Lender in respect of any Eurodollar Portion,
Swing Line Advance or Competitive Bid Advance, as the case may be, by an amount
reasonably deemed by such Lender to be material; then (i) such Lender shall
promptly notify Administrative Agent and Borrower in writing of the happening of
such event, (ii) Borrower shall thereafter upon demand pay to Administrative
Agent for the account of such Lender such additional amount or amounts as will
compensate such Lender for such additional cost or reduction, subject to the
provisions of Sections 2.21 and 2.19, and (iii) Borrower may elect, by giving to
Administrative Agent and Lender not less than three (3) Business Days' notice,
to convert all (but not less than all) of any such Eurodollar Portion into a
part of the Base Rate Portion.
Section 2.18 Availability. If (a) any change in applicable laws,
treaties, rules or regulations or in the interpretation or administration
thereof in any jurisdiction whatsoever, domestic or foreign, shall make it
unlawful or impracticable for any Lender to fund or maintain Eurodollar
Portions, or shall materially restrict the authority of any Lender to purchase
or take offshore deposits of dollars ("Eurodollars"), or (b) any Lender
determines that matching deposits appropriate to fund or maintain any Eurodollar
Portion are not available to it, or (c) any Lender determines that the formula
for calculating the Adjusted Eurodollar Rate does not fairly reflect the cost to
such Lender of making or maintaining loans based on such rates, then, upon
notice by such Lender to Administrative Agent and to Borrower, Borrower's right
to elect Eurodollar Portions shall be suspended to the extent and for the
duration of such illegality, impracticability, restriction or condition, and all
Eurodollar Portions (or portions thereof) which are then outstanding or are then
the subject of any Rate Election and which cannot lawfully or practicably be
maintained or funded shall immediately become or remain part of the Base Rate
Portions of such Lender's Loan, subject to the provisions of Sections 2.21 and
2.19. Borrower agrees to indemnify Administrative Agent and each Lender and hold
Administrative Agent and each Lender harmless against all costs, expenses,
claims, penalties, liabilities and damages which may result from any such change
in law, treaty, rule, regulation, interpretation or administration, subject to
the provisions of Section 2.21.
Section 2.19 Funding Losses. In addition to its other obligations
hereunder, subject to the provisions of Section 2.21, Borrower shall indemnify
each Lender against, and reimburse each Lender on demand for, any loss or
expense incurred or sustained by such Lender, determined as provided in this
Section, as a result of (a) any payment or prepayment (whether authorized or
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required hereunder or otherwise) of all or a portion of a Eurodollar Portion of
Borrower on a day other than the day on which the applicable Eurodollar Interest
Period ends, (b) any payment or prepayment, whether required hereunder or
otherwise, of a Loan of Borrower made after the delivery, but before the
effective date, of a Rate Election, if such payment or prepayment prevents such
Rate Election from becoming fully effective, (c) the failure of any Revolving
Loan Advance or Swing Line Advance or Competitive Bid Advance to be made to
Borrower or of any Rate Election of Borrower to become effective due to any
condition precedent to a Revolving Loan Advance or Swing Line Advance or
Competitive Bid Advance not being satisfied, due to the inability of
Administrative Agent (acting reasonably and in accordance with Section 2.18) to
determine a Eurodollar Rate for a Eurodollar Portion of Borrower or due to any
other action or inaction of any Obligor, (d) any conversion (whether authorized
or required hereunder or otherwise) of all or any portion of any Eurodollar
Portion of Borrower into a Base Rate Portion or into a different Eurodollar
Portion on a day other than the day on which the applicable Eurodollar Interest
Period ends, (e) any payment or prepayment of all or a portion of a Swing Line
Advance to Borrower on a day other than the maturity date for such Swing Line
Advance or (f) any payment or prepayment of all or a portion of a Competitive
Bid Advance on a day other than the maturity date for such Competitive Bid
Advance.
Upon the occurrence of an event as described in subsections (a) through
(f) of this Section, the method to be used by each Lender to calculate the loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Lender to fund or maintain Eurodollar Portions of
Revolving Loan Advances, Swing Line Advances or Competitive Bid Advances, as the
case may be, is as follows:
Funding Loss = P x (F-R) x D/360
P = principal amount of payment, prepayment, conversion,
non-borrowing or non-effective Rate Election
F = Eurodollar Rate or Swing Line Rate or Competitive
Bid Rate, as the case may be (adjusted for Reserve
Percentage), utilized in the calculations of the
Eurodollar Rate or Swing Line Rate or Competitive
Bid Rate, as the case may be, on the Eurodollar
Portion or Swing Line Advance or Competitive Bid
Advance which is being paid, prepaid, converted, not
borrowed or not subject to effective Rate Election
R = reinvestment rate (as hereinafter defined)
D = number of days from the date of the payment,
prepayment, conversion, non-borrowing or
non-effectiveness until the day on which the
Eurodollar Interest Period of the Eurodollar Portion
ends or the Swing Line Advance or Competitive Bid
Advance matures
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Reinvestment rate as it is used herein will be equal to the Eurodollar Rate,
adjusted for the Reserve Percentage quoted to such Lender, or the Swing Line
Rate or Competitive Bid Rate that would be quoted by such Lender, as the case
may be, effective for the date on which the payment, prepayment, conversion,
non-borrowing or non-effectiveness occurs. For purposes of determining the
reinvestment rate for purposes of this Section, the Eurodollar Rate will be the
quote for either one (1) month, two (2) months, three (3) months, six (6)
months, nine (9) months or twelve (12) months, the Competitive Bid Rate will be
the quote for a number of days between seven (7) and 360, and the Swing Line
Rate will be the quote for a number of days between one (1) and fourteen (14),
whichever most closely approximates (but which may contain more or fewer days
than) the number of days from the date of the payment, prepayment, conversion,
non-borrowing or non-effectiveness until the last day of the relevant Eurodollar
Interest Period or the scheduled maturity, as the case may be, of the Eurodollar
Portion, Competitive Bid Advance or Swing Line Advance, as the case may be, in
respect of which the payment, prepayment, conversion, non-borrowing or
non-effectiveness occurs; provided that if such number of days in respect of a
Eurodollar Rate is the midpoint between two such periods, such rate will be the
lower of the two rates for such periods.
Section 2.20 Taxes. All payments by Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp, or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made by Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then, subject to the provisions of Section 2.21, Borrower
will:
(a) pay directly to the relevant authority the full amount required to be so
withheld or deducted;
(b) promptly forward to Administrative Agent an official receipt or other
documentation satisfactory to Administrative Agent evidencing such payment
to such authority; and
(c) pay to Administrative Agent for the account of the applicable Lender(s)
such additional amount(s) as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender
would have received had no such withholding or deduction been required and
Borrower hereby acknowledges that it is not entitled to and will not seek
recovery or restitution of any amount due to any of the Lenders or Agents
and paid by Borrower pursuant to this clause (c) or pursuant to the next
sentence.
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If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, Borrower will
promptly pay such additional amounts to Administrative Agent for the account of
such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.21.
Borrower shall pay all stamp, transaction, registration and similar
taxes (including financial institutions' duties, debit taxes or other taxes
payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if Borrower fails to pay
any such charges or taxes after reasonable notice from any such Lender or Agent,
fines and penalties) which may be payable or determined to be payable in
relation to the execution, delivery, performance or enforcement of this
Agreement or any Loan Document or any other transaction contemplated by any Loan
Document to which Borrower is a party. Borrower hereby indemnifies each Lender
and Agent against any liability resulting from delay or omission to pay such
charges or taxes except to the extent the liability results from failure by the
relevant Lender or Agent to pay any such tax after having been delivered funds
to do so by Borrower or to the extent such liability is for fines and penalties
resulting from such Lender's or Agent's failure to provide reasonable notice to
Borrower as provided herein.
If Borrower fails to pay any Taxes or Stamp Taxes when due to the
appropriate taxing authority or fails to remit to Administrative Agent, for the
account of the respective Lenders, the required receipts or other required
documentary evidence, Borrower shall indemnify Lenders for any Taxes, interest
or penalties that may become payable by any Lender as a result of any such
failure, subject to the provisions of Section 2.21. For purposes of this
Section, a distribution hereunder by Administrative Agent or any Lender to or
for the account of any Lender or Agent shall be deemed a payment by the subject
Borrower.
Borrower waives any statutory right to recover from any Agent or any
Lender any amount due to any such Agent or Lender and paid by Borrower under
this Section.
On or prior to the first date on which interest or fees are payable
hereunder for the account of any Lender, each Lender that is organized under the
laws of a jurisdiction other than the United States shall execute and deliver to
Administrative Agent, three (3) or more (as Administrative Agent may reasonably
request) United States Internal Revenue Service Forms 1001 or 4224 or such other
forms or documents (or successor forms or documents), appropriately completed,
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as may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver to Administrative
Agent three (3) additional copies of such form (or a successor form) on or
before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by Administrative Agent, in each case certifying that such
Lender is entitled to receive payments from Borrower under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms of the type previously
delivered inapplicable or which would prevent such Lender from duly completing
and delivering such form with respect to it and such Lender advises
Administrative Agent that it is not capable of receiving such payments on the
basis reflected in such previously delivered form without any deduction or
withholding of United States federal income tax. Administrative Agent shall
provide one (1) copy of each of such forms or documents so provided to Borrower
and Documentation Agent.
Section 2.21 Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Sections 2.16, 2.17,
2.18, 2.19 and 2.20 and Borrower's obligation with respect thereto, shall be
limited and qualified by and subject to the following:
(a) Borrower's obligation to pay, satisfy or recognize such claim shall be
limited to costs or losses incurred within one (1) year immediately prior
to any demand or request therefor upon Borrower;
(b) each Lender's demand for reimbursement, payment or indemnity from Borrower
must be limited to that which is being generally applied at the time by
such Lender for comparable borrowers and credits subject to credit
agreements similar to this Agreement, but without regard to provisions
similar to this Section;
(c) each Lender which asserts its rights with respect thereto or which is
seeking or imposing such reimbursement, payment or indemnity shall provide
evidence regarding the basis of such claim and the calculation and
application thereof in reasonable detail and, in determining such amount,
each Lender may use reasonable methods of attribution and averaging;
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(d) each Lender which is seeking payment or reimbursement pursuant to Section
2.20 shall, if so requested by Borrower, use reasonable efforts (subject to
the overall policy considerations of such Lender) to designate a different
lending office hereunder if to do so will avoid the need for, or reduce the
amount of, any such payment or reimbursement; provided that, Lender would,
in its sole but reasonable determination, suffer no material economic,
legal or regulatory disadvantage or burden;
(e) Borrower may, in its sole discretion, elect, unless and until the
applicable Lender notifies Borrower that the circumstances giving rise
thereto no longer apply to such Lender, that, to the extent that a Lender's
claims for such reimbursements, payments or indemnities would be reduced
thereby, that subject to Section 2.19, (1) all Loans to Borrower which
would otherwise be made by such Lender as Eurodollar Portions shall be made
instead as Base Rate Portions (all of which interest and principal shall be
payable as provided herein with respect to the related Eurodollar Portions
of the Lenders), and (2) after each Eurodollar Portion has been repaid, all
payments of principal which would otherwise would be applied to repay such
Eurodollar Portion shall be applied to repay Base Rate Portions instead;
and
(f) Borrower may designate a replacement Lender (which may be one (1) or more
of the then existing Lenders hereunder and which shall be reasonably
satisfactory to Administrative Agent) to purchase the Notes, in each case
without recourse, and assume the Commitments and all other obligations
hereunder of any Lender that has suspended the availability of Eurodollar
Portions pursuant to Section 2.18 or that has demanded reimbursement,
payment or indemnity under Sections 2.16, 2.17, 2.18, 2.19 or 2.20, and
such Lender shall be obligated to sell, transfer and deliver all of its
Notes to such replacement Lender for the outstanding principal amount of
such Notes, plus in each case, accrued interest thereon and such Lender's
portion of accrued but unpaid fees through the date of such purchase, and
permit such replacement lender to assume its Commitments. Borrower shall be
obligated to pay all additional amounts due to the Lender being replaced
pursuant to Sections 2.16, 2.17, 2.18, 2.19 and 2.20 through the date of
such purchase and assumption; provided, that if the replacement Lender
fails to purchase all such rights and interests and assume all such
Commitments on the specified date in accordance herewith, Borrower shall
continue to be obligated to pay such amounts to such Lender which was to
have been replaced and provided further that Borrower shall pay any Taxes
or Stamp Taxes, if any, as a result of such transfer.
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Section 2.22 Competitive Bid Advances.
(a) In addition to borrowings pursuant to Section 2.1(a) or Section
2.4, Borrower may request each Lender severally to submit offers (herein called
a "Competitive Bid Offer") to make advances to Borrower on any Business Day
during the Loan Commitment Period as provided in this Section (herein called
"Competitive Bid Advances"); provided, however, that each Lender may in its sole
discretion, but shall have no obligation whatsoever to submit such offers, and
Borrower may, but shall have no obligation to, accept any such offers.
(b) Procedure for Competitive Bid Advances.
(i) Borrower may request Competitive Bid Advances by delivering a request
for a Competitive Bid Advance to each Lender (which has indicated to
Borrower its interest in making a Competitive Bid Advance) and
Administrative Agent not later than 9:00 a.m., Dallas, Texas time, one
(1) Business Day prior to the proposed borrowing date. Each request
for a Competitive Bid Advance shall be in substantially the form of
Exhibit N hereto (herein called a "Request for Competitive Bid Offer")
and may solicit bids for Competitive Bid Advances having not more than
three (3) alternative maturity dates and for Competitive Bid Advances
in any respective principal amount equal to $10,000,000 or an integral
multiple of $1,000,000 in excess thereof for each maturity date
requested. The maturity date for each Competitive Bid Advance shall be
not less than fifteen (15) days nor more than 360 days after the
borrowing date therefor (and in any event not after the Maturity
Date).
(ii) Upon receipt of a Request for Competitive Bid Offer, any Lender that
elects, in its sole discretion, to do so, shall irrevocably offer to
make one (1) or more Competitive Bid Advances at a fixed rate of
interest determined by such Lender in its sole discretion for each
such Competitive Bid Advance. Any such irrevocable offer shall be made
by delivering a Competitive Bid Offer to Administrative Agent and to
Borrower, before 9:00 a.m., Dallas, Texas time (or, in the case of a
Competitive Bid Offer by Administrative Agent, before 8:45 a.m.,
Dallas, Texas time), on the proposed borrowing date, setting forth the
maximum amount of Competitive Bid Advances for each maturity date, and
the aggregate maximum amount for all maturity dates, which such Lender
would be willing to make (which amounts may exceed such Lender's
Percentage Share of the Commitments) and the fixed rate of interest at
which such Lender is willing to make each such Competitive Bid
Advance, which fixed rate of interest may or may not be, in such
Lender's discretion, different for each Competitive Bid Advance
(respectively herein a "Competitive Bid Rate"). Borrower shall pay to
Administrative Agent a fee of $500 on each day that Borrower accepts a
Competitive Bid Offer.
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(iii) The Competitive Bid Offer delivered by each Lender in response to a
Request for Competitive Bid Offer shall set forth an amount proposed
to be loaned by such Lender for each maturity date requested by
Borrower that is equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof. Any Competitive Bid Offer by any Lender
that: (A) does not substantially conform to the form of Exhibit O
hereto, (B) contains qualifying, conditional or similar language, (C)
proposes terms other than or in addition to those set forth in the
applicable Request for Competitive Bid Offer or (D) is received by
Borrower after the applicable time specified in this subsection, shall
be rejected by Borrower and Administrative Agent (and Administrative
Agent shall notify the relevant Lender of such rejection for one or
more of the matters described in the foregoing (A) through (D) by
telephone and telecopy as soon as practicable thereafter).
(iv) Borrower shall before 10:00 a.m., Dallas, Texas time, on the proposed
borrowing date either, in its absolute discretion:
(A) withdraw such Request for Competitive Bid Offer by giving
telephonic notice to that effect;
(B) accept one (1) or more of the Competitive Bid Offers by giving
telephonic notice to Administrative Agent (immediately confirmed
by delivery to Administrative Agent by facsimile transmission of
a Bid Acceptance) of the amount of Competitive Bid Advance(s) for
each relevant maturity date to be made by the relevant Lender(s)
(which amount for each such maturity date shall be equal to or
less than the maximum amount for such maturity date specified in
the Competitive Bid Offer of such Lender(s), and for all maturity
dates included in such Competitive Bid Offer shall be equal to or
less than the aggregate maximum amount specified in such Request
for Competitive Bid Offer for all such maturity dates) and reject
any Competitive Bid Offers not accepted by Borrower by giving
telephonic notice to Administrative Agent of such rejection;
provided, however, that (1) Borrower may not accept Competitive
Bid Offers for any maturity date in an aggregate principal amount
in excess of the maximum principal amount requested in the
related Request for Competitive Bid Offer (and Competitive Bid
Advances allocated to a Lender on a borrowing date for each
relevant maturity date shall be in a principal amount equal to
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof); and (2) Administrative Agent shall notify the Lender
that submitted a Competitive Bid Offer for such Business Day of
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Borrower's decision by telecopying to each such Lender a copy of
the Bid Acceptance by no later than 12:00 noon, Dallas, Texas
time, on the borrowing date specified in the Request for
Competitive Bid Offer; or
(C) Borrower may accept or reject any Competitive Bid Offer(s) in
whole or in part; provided that after giving effect to any such
accepted Competitive Bid Offer(s), the sum of (i) the aggregate
principal amount of the Revolving Loans and Swing Line Advances
outstanding at such time, and (ii) the aggregate principal amount
of Competitive Bid Advances outstanding at such time, does not
exceed the Facility Amount.
(v) If Borrower notifies Administrative Agent that a Request for
Competitive Bid Offer is withdrawn pursuant to clause (iv) above, the
Competitive Bid Advance requested thereby shall not be made.
(vi) Each Lender which is to make a Competitive Bid Advance shall, before
1:00 p.m., Dallas, Texas time, on the borrowing date specified in the
Request for Competitive Bid Offer applicable thereto, make available
to Administrative Agent in immediately available funds the amount of
each Competitive Bid Advance to be made by such Lender. Administrative
Agent shall deposit such funds to an account designated by Borrower by
no later than 1:15 p.m., Dallas, Texas time, on such date.
(vii) Borrower shall repay to Administrative Agent, for the account of each
Lender which has made a Competitive Bid Advance, on the maturity date
of each Competitive Bid Advance (such maturity date being that
specified by Borrower for repayment of such Competitive Bid Advance in
the related Request for Competitive Bid Offer) the then unpaid
principal amount of such Competitive Bid Advance. Borrower shall not
have the right to prepay any principal amount of any Competitive Bid
Advance. If any Lender makes a Competitive Bid Advance on a day on
which Borrower is to repay all or any part of an outstanding
Competitive Bid Advance from such Lender, if requested by Borrower,
such Lender shall apply the proceeds of its new Competitive Bid
Advance to make such repayment and, in such instance, only an amount
equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Lender to
Administrative Agent as provided in Section 2.22(b)(vi), or remitted
by Borrower to Administrative Agent as provided in this Section
2.22(b)(vii), as the case may be.
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(viii) Borrower shall pay interest on the unpaid principal amount of each
Competitive Bid Advance from the borrowing date to the stated maturity
date thereof, at the rate of interest determined pursuant to clause
(b) (ii) above (calculated on the basis of a 360 day year for actual
days elapsed including the first but excluding the last), but not in
excess of the Maximum Lawful Rate, payable on the maturity date with
respect to such Competitive Bid Advance and, if such maturity date is
more than 90 days after the date of making such Competitive Bid
Advance, on such ninetieth day and each ninetieth day occurring after
such ninetieth day until the maturity date. If all or a portion of the
principal of or interest on any Competitive Bid Advance shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), without limiting any rights of any Lender under this
Agreement, (i) such overdue principal amount shall bear interest from
the date on which such payment was due (other than on the scheduled
maturity date with respect thereto) at the Default Rate, but not in
excess of the Maximum Lawful Rate, until paid in full (as well as
after as before judgment) and (ii) such overdue interest shall bear
interest from the date on which payment was due at the Default Rate,
but not in excess of the Maximum Lawful Rate, until paid in full (as
well as after as before judgment).
(c) The Competitive Bid Advances made by each Lender shall be
evidenced by a single promissory note of Borrower payable to
the order of such Lender substantially in the form of Exhibit
A-3 attached hereto, with appropriate insertions (herein
called a "Competitive Bid Note"). The date, amount,
Competitive Bid Rate and maturity date of each Competitive Bid
Advance made by a Lender to Borrower, and each payment made on
account of the principal thereof, shall be recorded by such
Lender on its books.
(d) The Competitive Bid Advances will be used by Borrower to
provide working capital and for the general business purposes
of Borrower and its Subsidiaries. No Competitive Bid Advances
shall be used for the purpose of purchasing or carrying any
Margin Stock in violation of the Margin Regulations.
(e) The obligation of Lenders to make each Competitive Bid Advance
after timely acceptance by Borrower is further subject to the
conditions contained in Article 3.
(f) Borrower shall not be required to accept Competitive Bid
Offers on the basis of the lowest Competitive Bid Rate
offered, but may in its sole discretion accept any Competitive
Bid Offer regardless of the Competitive Bid Rate(s) offered.
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ARTICLE 3
CONDITIONS PRECEDENT TO LENDING
Section 3.1 Initial Conditions Precedent. No Lender has any
obligation to make its first Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance unless:
(a) Administrative Agent shall have received all of the following with copies
for each Lender, at Administrative Agent's office in Midland, Texas:
(1) This Agreement, the Notes, those Security Instruments and Guaranties
listed on Schedule 5 hereto, any other documents required in
connection herewith, each duly executed and delivered and in form,
substance and date satisfactory to Managing Agents.
(2) The following certificates:
(i) an "Omnibus Certificate" of the Secretary or an Assistant
Secretary and of a Designated Officer, which shall contain the
names and signatures of the officers of Borrower authorized to
execute Loan Documents and which shall certify to the truth,
correctness and completeness of the following exhibits attached
thereto: (A) a copy of resolutions duly adopted by the Board of
Directors of Borrower and in full force and effect at the time
this Agreement is entered into, authorizing the execution of this
Agreement and the other Loan Documents delivered or to be
delivered in connection herewith and the consummation of the
transactions contemplated herein and therein, (B) a copy of the
charter documents of Borrower and all amendments thereto,
certified by the appropriate official of Borrower's jurisdiction
of organization, and (C) a copy of the bylaws or similar
governing documents of Borrower (provided that, to the extent
Borrower has previously provided Administrative Agent certified
copies of the documents described in (B) and (C) above, such
Omnibus Certificate may omit such documents, but shall include a
statement that such documents have not been modified in any
respect since the date last so provided to Administrative Agent,
except as may be specifically noted in such Omnibus Certificate
with appropriate attachments); and
(ii) a "Compliance Certificate" of a Designated Officer of Borrower,
of even date with such Revolving Loan Advance, Swing Line Advance
or Competitive Bid Advance, in which such officer certifies to
the satisfaction of the conditions set out in Section 3.2(a) and
(b) and that all conditions hereunder have been satisfied.
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(3) A certificate (or certificates) of the due formation, valid existence
and good standing of Borrower in its jurisdiction of organization,
issued by the appropriate authorities of such jurisdiction.
(4) The favorable opinion of counsel for Borrower, Parent and the
Restricted Subsidiaries, given upon their express instructions
substantially in the form set forth as Exhibit H attached hereto.
(5) Documents similar to those specified in Section 3.1(a)(2)(i) and
3.1(a)(3) with respect to (i) Parent and (ii) each Restricted
Subsidiary which is or will be party to a Security Instrument or
Guaranty on the date hereof.
(6) A certificate of a Designated Officer of Borrower as to insurance
concerning the material assets of Obligors. Lenders agree that
Obligors' insurance coverage disclosed on Schedule 4 is acceptable at
the date hereof.
(b) Except as disclosed to the Lenders in the Disclosure Schedule or otherwise
in writing prior to the execution hereof and not objected to by Required
Lenders, there shall be no pending or threatened litigation, action or
proceeding against Borrower, Parent, Petroleum or Mesa or any of their
respective Subsidiaries which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(c) No event or condition shall have occurred since December 31, 1996, which is
reasonably expected to result in a Material Adverse Effect.
(d) After giving effect to such Revolving Loan Advances, Competitive Bid
Advances and Swing Line Advances, Borrower and Lenders shall be in
compliance with the Margin Regulations.
(e) The mergers among Petroleum, Mesa, Mesa Operating and Parent (the
"Mergers") shall have been consummated as contemplated by and pursuant to
that certain Amended and Restated Agreement and Plan of Merger dated April
6, 1997 (the "Merger Agreement"), among such parties, and Administrative
Agent shall have received (i) satisfactory evidence of the consummation of
such Mergers and (ii) a certificate from a Designated Officer of Borrower
certifying that the Mergers have been consummated.
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(f) A certificate of a Designated Officer of Borrower certifying that (i) all
representations and warranties made by any Obligor in this Agreement or any
other Loan Document are true and correct as of the Effective Date and (ii)
that all conditions precedent to the initial Advance contained in this
Agreement or any other Loan Document have been satisfied as of the
Effective Date.
(g) All requisite Governmental Authorities and third parties shall have
approved or consented to the Mergers and all related transactions,
including, without limitation, the issuance, closing and funding of this
Agreement and the facilities thereunder, to the extent required. All
applicable appeal periods shall have expired and there shall be, in the
judgment of the Managing Agents, in their sole discretion, no governmental
or judicial action, actual or threatened, restraining, preventing or
imposing burdensome conditions on the Mergers and all related transactions,
including, without limitation, the issuance, closing and funding of this
Agreement and the facilities thereunder.
(h) Administrative Agent shall have received documentation of the release of
all Liens associated with the Existing Mesa Facility and the Existing
Petroleum Facility, in form and substance acceptable to the Administrative
Agent, in its sole discretion.
(i) Managing Agents shall have received copies of all financial statements,
reports, notices and proxy statements sent by Parent to its stockholders
and all SEC filings concerning the Mergers.
(j) No litigation or administrative proceeding or other legal or regulatory
developments prohibiting or enjoining the consummation of the Mergers shall
exist.
(k) Exclusive of the Mergers, no "Event of Default" (as defined in the Existing
Petroleum Credit Facility) for Petroleum or "Event of Default" (as defined
in the Existing Mesa Credit Facility) for Mesa shall have occurred and be
continuing.
Section 3.2 Additional Conditions Precedent. No Lender has any
obligation to make any Revolving Loan Advance, Competitive Bid Advance or Swing
Line Advance (including its initial Advance) unless the following conditions
precedent have been satisfied:
(a) All representations and warranties made by any Obligor in any Loan Document
shall be true on and as of the date of such Revolving Loan Advance, Swing
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Line Advance or Competitive Bid Advance as if such representations and
warranties had been made as of the date of such Revolving Loan Advance,
Swing Line Advance or Competitive Bid Advance (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date).
(b) In the case of the first Revolving Loan Advance, Swing Line Advance or
Competitive Bid Advance, no Event of Default, and in the case of any other
Revolving Loan Advance, Swing Line Advance or Competitive Bid Advance, no
Default shall exist at the date of such Revolving Loan Advance, Swing Line
Advance or Competitive Bid Advance or will occur as a result of the making
of the requested Revolving Loan Advance, Swing Line Advance or Competitive
Bid Advance.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Borrower's Representations and Warranties. To confirm
each Lender's understanding concerning Borrower and its businesses, properties
and obligations, and to induce Managing Agents, Co-Agents and each Lender to
enter into this Agreement and to make the Loans to Borrower, except as to
matters disclosed herein or in the Disclosure Schedule, Borrower represents and
warrants to Managing Agents, Co-Agents and each Lender that:
(a) No Default. No Obligor is in default in the performance of any of the
covenants and agreements contained herein or under any other Loan Document.
No event or circumstance has occurred and is continuing which constitutes a
Default.
(b) Organization, Existence and Good Standing. Each Obligor is duly organized
or incorporated, validly existing and in good standing under the laws of
its jurisdiction of organization or incorporation, having all corporate or
partnership powers required to enter into and carry out the transactions
contemplated hereby. Each Obligor is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United
States of America and the Commonwealth of Australia wherein the character
of the properties owned or held by it or the nature of the business
transacted by it makes such qualification necessary, except for any lack of
qualification, good standing or authorization that could not reasonably be
expected to have a Material Adverse Effect. Each Obligor has taken all
actions customarily taken in order to enter, for the purpose of conducting
business or owning property, each jurisdiction outside the United States
wherein the character of the properties owned or held by it or the nature
of the business transacted by it makes such actions desirable, except for
any failure or other matter that could not reasonably be expected to have a
Material Adverse Effect.
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(c) Authorization. Each Obligor has duly taken all corporate or partnership
action necessary to authorize the execution and delivery by it of the Loan
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Borrower is duly authorized to borrow funds hereunder.
(d) No Conflicts or Consents. The execution and delivery by each Obligor of the
Loan Documents to which it is a party, the performance by each Obligor of
its obligations under such Loan Documents, and the consummation of the
transactions contemplated by the various Loan Documents, including, without
limitation, the consummation of the Mergers, do not and will not (1)
conflict with any provision of the articles or certificate of
incorporation, bylaws, charter, partnership agreement or certificate or
other governing document of such Obligor, or (2) except as to matters that
could not reasonably be expected to have a Material Adverse Effect, result
in the acceleration of any Debt owed by such Obligor, or conflict with any
law, statute, rule, regulation, or material agreement, judgment, license,
order or permit applicable to or binding upon such Obligor, or require the
consent, approval, authorization or order of, or notice to or filing with,
any Governmental Authority or third party, or result in or require the
creation of any Lien upon any material assets or properties of such
Obligor, except (i) as permitted in the Loan Documents and (ii) for filings
and recordings of the Security Instruments.
(e) Enforceable Obligations. This Agreement is, and the other Loan Documents
when duly executed and delivered will be, legal, valid and binding
obligations of each Obligor which is a party hereto or thereto, enforceable
in accordance with their terms except as such enforcement may be limited by
bankruptcy, insolvency or similar laws of general application relating to
the enforcement of creditors' rights generally and by general principles of
equity.
(f) Financial Statements.
(i) The Updated Financial Statements fairly present Mesa's and Petroleum's
financial position at the respective dates thereof and the results of
Mesa's and Petroleum's operations and cash flows for the respective
periods thereof. From the date of the audited Updated Financial
Statements to the Effective Date no change has occurred in Mesa's and
Petroleum's Consolidated financial condition which could reasonably be
expected to result in a Material Adverse Effect, except as reflected
in the Disclosure Schedule. All Updated Financial Statements were
prepared in accordance with GAAP as in effect on the date thereof.
(ii) The Unaudited Pro Forma Financial Statements of Parent for the periods
ending December 31, 1996 and March 31, 1997 contained in the Proxy
Statement, dated June 27, 1997, fairly present Parent's pro forma
financial position at the respective dates thereof and the results of
Parent's pro forma operations and cash flows for the respective
periods thereof. From the date of such financial statements to the
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Effective Date no change has occurred in Mesa's or Petroleum's
Consolidated financial condition which could reasonably be expected to
result in a Material Adverse Effect on Parent's Pro Forma Consolidated
Financial Condition, except as reflected in the Disclosure Schedule.
All such financial statements were prepared in accordance with GAAP as
in effect on the date thereof.
(g) Other Obligations. As of the Effective Date, neither Borrower nor any of
its Consolidated Subsidiaries has any outstanding Debt which is, in the
aggregate, material to either Petroleum or Mesa and their respective
Consolidated Subsidiaries and not shown in the Updated Financial
Statements.
(h) Full Disclosure. No certificate, statement or other information delivered
herewith or heretofore by any Designated Officer of any Obligor to either
of Managing Agents, Co-Agents or any Lender in connection with the
negotiation of this Agreement or in connection with any transaction
contemplated hereby contains any untrue statement of a fact or omits to
state any fact known to Petroleum, Mesa, or any Obligor (other than
industry-wide risks normally associated with the types of businesses
conducted by Petroleum, Mesa or Obligors) necessary to make the statements
contained herein or therein not misleading as of the date made or deemed
made, except to the extent that any untrue statement or omission could not
reasonably be expected to have a Material Adverse Effect.
(i) Litigation. Except as disclosed in the Updated Financial Statements or in
the Disclosure Schedule: (1) there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or, to the
knowledge of Borrower, threatened, against any Obligor before any
Governmental Authority that could reasonably be expected to have a Material
Adverse Effect, and (2) there are no outstanding judgments, injunctions,
writs, rulings or orders by any such Governmental Authority against
Borrower, Petroleum or Mesa or any of their respective Consolidated
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
(j) Environmental Matters. The liabilities and costs of Borrower and its
Consolidated Subsidiaries related to compliance with applicable
Environmental Laws (as in effect on the date on which this representation
is made or deemed made) could not reasonably be expected to have a Material
Adverse Effect.
(k) Title to Properties. Each Obligor has good and defensible title to all of
its material properties and assets, except any failure, defect or other
matter that could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(l) Investment Company Act. Neither Parent or Borrower nor any of their
respective Subsidiaries is an "investment company" or a "company
controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
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(m) Public Utility Holding Company Act. Neither Parent or Borrower nor any of
their respective Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(n) Principal Business Offices. As of the Effective Date, each Obligor's
principal place of business and chief executive office is located at the
place described in the Disclosure Schedule.
(o) Solvency. Each Obligor is solvent and will continue to be solvent after the
making and guarantying of the Loans.
(p) Organization. As of the Effective Date, the organization chart of Parent,
Borrower and their respective Subsidiaries set forth on Exhibit I is true
and correct in all material respects. As of the Effective Date, Borrower or
a Restricted Subsidiary owns all of the issued and outstanding capital
stock of each Restricted Subsidiary. As of the Effective Date, no
Restricted Subsidiary has issued any securities convertible into shares of
its stock or any options (except as set forth in the Disclosure Schedule),
warrants or other rights to acquire such shares or securities convertible
into such shares and the outstanding capital stock and securities of each
Restricted Subsidiary is owned by Borrower or another Restricted Subsidiary
free and clear of all Liens, warrants, options or rights of others of any
kind whatsoever, except for Permitted Liens.
(q) Use of Proceeds; Margin Stock. Borrower and its Subsidiaries shall use (i)
the initial Revolving Loan Advance (1) to discharge all outstanding
obligations under the Existing Petroleum Credit Facility and (2) to
discharge all outstanding obligations under the Existing Mesa Credit
Facility, and (ii) all Revolving Loan Advances, Competitive Bid Advances
and Swing Line Advances for its and their respective general corporate
purposes. In no event shall the funds from any Revolving Loan Advance,
Swing Line Advance or Competitive Bid Advance be used directly or
indirectly by any Persons for personal, family, household or agricultural
purposes or for the purpose, whether immediate, incidental or ultimate, of
purchasing, acquiring or carrying any "margin stock" or any "margin
securities" (as such terms are defined in the Margin Regulations) in
violation of the Margin Regulations, or for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or
carry "margin stock" or "margin securities" in violation of the Margin
Regulations, or to extend credit to others directly or indirectly for the
purpose of purchasing or carrying any such margin stock or margin
securities in violation of the Margin Regulations. Borrower is not engaged
principally, or as one of Borrower's important activities, in the business
of extending credit to others for the purpose of purchasing or carrying
such margin stock or margin securities. Neither any Obligor nor any Person
acting on behalf of any Obligor has taken or will take any action which
might cause this Agreement, the Notes, or any Guaranty, any Loan Document
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or any Loan to violate the Margin Regulations or to violate Section 7 of
the Securities Exchange Act of 1934, or any rule or regulation thereunder,
in each case as now or hereafter in effect.
(r) Liens Under the Security Instruments. Upon the execution and delivery of
the Security Instruments in accordance herewith, and where appropriate
the filing and recordation thereof with the appropriate filing or recording
officers in each of the necessary jurisdictions, the Liens granted and to
be granted by any Obligor to Lenders or the Trustee (as defined in any of
the Security Instruments) on behalf of Lenders in such Obligor's assets
pursuant to the Security Instruments will be validly created, perfected and
first priority Liens, subject only to Permitted Liens.
Section 4.2 Representation by Lenders. Each Lender hereby represents
that it will acquire its Notes for its own account in the ordinary course of its
commercial lending business; however, such Lender may sell or otherwise transfer
its Notes, any participation interest or other interest in its Notes, or any of
its other rights and obligations under the Loan Documents as permitted by
Section 8.8.
ARTICLE 5
COVENANTS OF BORROWER
Section 5.1 Affirmative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents, Co-Agents and each Lender to enter into
this Agreement and make the Loans to Borrower, unless Required Lenders shall
have previously agreed otherwise in writing, Borrower and, as applicable,
Parent, severally for itself and their respective Subsidiaries covenants and
agrees that:
(a) Payment and Performance. Borrower will pay all amounts due from it under
the Loan Documents in accordance with the terms thereof and will observe,
perform and comply with every covenant, term and condition expressed in the
Loan Documents, and will cause each Obligor which is a Subsidiary of
Borrower to perform and comply with every covenant, term and condition
expressed in the Loan Documents and applicable to such Obligor.
(b) Books, Financial Statements and Reports. Parent and Borrower will at all
times maintain full and materially accurate books of account and records.
Parent and Borrower will maintain and will cause their respective
Subsidiaries to maintain a standard system of accounting and will cause the
following statements and reports to be delivered to Managing Agents and
each Lender at Borrower's expense:
(1) As soon as available, and in any event within 120 days after the end
of each Fiscal Year, complete audited Consolidated financial
statements of Parent and its Subsidiaries and unaudited consolidating
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balance sheets and statements of operations of Parent and its
Subsidiaries, prepared in reasonable detail in accordance with GAAP;
such audited statements to be accompanied by an opinion, by KPMG Peat
Marwick, or such other independent certified public accountants of
nationally recognized standing selected by Parent, stating that such
Consolidated financial statements have been so prepared. Parent will,
together with each set of such financial statements delivered pursuant
to this Section, furnish a certificate in the form of Exhibit J signed
by a Designated Officer of Borrower stating that, to the best of his
knowledge, (i) such financial statements are accurate and complete,
and (ii) no Default or Event of Default exists at the end of such
Fiscal Quarter or at the time of such certificate or specifying the
nature and period of existence of any such Default or Event of
Default. Such certificate shall contain calculations showing
compliance (or noncompliance) at the end of such Fiscal Quarter with
the requirements of Sections 5.3(a) and (b).
(2) As soon as available, and in any event within 60 days after the end of
the first three Fiscal Quarters in each Fiscal Year, unaudited
Consolidated financial statements of Parent and its Subsidiaries and
unaudited consolidating balance sheet and statements of operations of
Parent and its Subsidiaries as of the end of such Fiscal Quarter, all
in reasonable detail and prepared in accordance with GAAP, subject to
changes resulting from year-end adjustments. Parent will, together
with each set of such financial statements delivered pursuant to this
Section, furnish a certificate in the form of Exhibit J signed by a
Designated Officer of Borrower stating that, to the best of his
knowledge, (i) such financial statements are accurate and complete,
and (ii) no Default or Event of Default exists at the end of such
Fiscal Quarter or at the time of such certificate or specifying the
nature and period of existence of any such Default or Event of
Default. Such certificate shall contain calculations showing
compliance (or noncompliance) at the end of such Fiscal Quarter with
the requirements of Sections 5.3(a) and (b).
(3) Promptly after transmittal or filing, copies of all financial
statements, reports, notices and proxy statements sent by Parent to
its stockholders and all registration statements, periodic reports and
other statements and schedules filed by Parent or any of its
Subsidiaries with any securities exchange, the Securities and Exchange
Commission or any similar Governmental Authority.
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(c) Other Information and Inspections. Parent and Borrower will furnish to
Managing Agents and each Lender any information which Administrative Agent,
on behalf of any Lender, may from time to time reasonably request in
writing concerning any covenant, provision or condition of the Loan
Documents or any matter in connection with Parent's, Borrower's and its
Subsidiaries' businesses and operations. Parent and Borrower will permit
and will cause each of their respective Subsidiaries to permit
representatives of Agents and Lenders (including independent accountants,
agents and attorneys), at the expense and risk of the applicable Lender, to
visit and inspect, during normal business hours and upon reasonable notice
any of Parent's or Borrower's or such Subsidiaries' property, including its
books of account, other books and records, and any facilities or other
business assets, and to make extra copies therefrom and photocopies and
photographs thereof, and to write down and record any information such
representatives obtain, and Parent and Borrower shall permit and will cause
each of their respective Subsidiaries to permit Agents and the Lenders or
their representatives, to investigate and verify the accuracy of the
information furnished to Administrative Agent or any Lender in connection
with the Loan Documents and to discuss all such matters with its officers,
employees and representatives; provided, however, that any such visit,
inspection, investigation or verification or discussion with respect to
Parent or Borrower taking place at a time when Borrower has been notified
in writing by Administrative Agent of the existence of a Default or an
Event of Default applicable to Borrower which has occurred and is
continuing shall be at the cost and expense of Borrower, and that neither
Managing Agents, Co-Agents nor Lenders shall have any obligation to pay any
costs or expenses of Parent or Borrower or any other Obligor or any of
their officers, employees or representatives in respect thereof
irrespective of the existence of any Default or Event of Default.
(d) Notice of Material Events. Borrower will promptly upon its awareness
thereof notify Administrative Agent and each Lender (1) of the occurrence
of any Default or any other event, which has or may reasonably be expected
to have, a Material Adverse Effect, (2) of the acceleration of the maturity
of any Debt owed by any Obligor or any default by any Obligor under any
instrument evidencing or governing Debt, if such acceleration or default
has a Material Adverse Effect, (3) of the occurrence of any Termination
Event which may reasonably be expected to have a Material Adverse Effect,
and (4) of the filing of any litigation or proceeding in which any Obligor
is a party or of any material developments in existing litigation in which
any Obligor is a party in which an adverse decision may reasonably be
expected to have a Material Adverse Effect.
(e) Maintenance of Existence and Qualifications. Parent and Borrower will, and
will cause each Restricted Subsidiary to, maintain and preserve its
existence as a corporation or partnership, as the case may be. Parent and
Borrower will, and will cause each Restricted Subsidiary to, maintain and
preserve its good standing and its rights and franchises in full force and
effect and qualify to do business as a foreign corporation in all states or
jurisdictions where required by applicable law, except for any failure to
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maintain, preserve and qualify that could not reasonably be expected to
have a Material Adverse Effect. Nothing in this Section shall prohibit (i)
a merger or consolidation permitted by Section 5.2(c) or (ii) a termination
of such existence, good standing, rights or franchises of any Restricted
Subsidiary if Parent or Borrower determines in good faith that such
termination is in the best interest of the Parent and Borrower and could
not reasonably be expected to have a Material Adverse Effect.
(f) Payment of Taxes and Trade Debt. Borrower will, and will cause each of its
Subsidiaries to, except for any failure or other matter that could not
reasonably be expected to have a Material Adverse Effect, (1) timely file
all required tax returns, (2) timely pay all taxes, assessments, and other
governmental charges or levies imposed upon it or upon its income, profits
or property, and (3) timely pay all trade debt. Borrower and its respective
Subsidiaries may, however, delay paying or discharging any such taxes,
assessments, charges, debts or levies so long as the validity thereof is
contested in good faith by appropriate proceedings and adequate reserves
therefor in accordance with GAAP have been set aside and reflected among
the books and records of Borrower and its Subsidiaries.
(g) Insurance. Borrower will, and will cause each of its Subsidiaries to, at
all times maintain insurance in such amounts and covering such risks as are
in accordance with normal industry practice for companies engaged in
similar businesses and owning similar properties in the same general area
in which Borrower and its Subsidiaries conduct business, which insurance
(other than prudent self-insurance programs) shall be by financially sound
and reputable insurers.
(h) Payment of Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, Borrower will promptly pay all reasonable costs
and expenses (including reasonable attorneys' fees) incurred by or on
behalf of (1) the Documentation Agents in connection with the negotiation,
preparation, execution and delivery of the Loan Documents and any
amendment, modification or restatement thereof, and any and all consents,
waivers or other documents or instruments, including commitment letters,
term sheets and any memorandum relating thereto (provided that Borrower
shall be obligated to pay only the attorneys' fees of a common counsel for
the Documentation Agents, Mayer, Brown & Platt), (2) Agents in connection
with due diligence, syndication, travel and advertising related to this
Agreement and the transactions contemplated thereby, and (3) Administrative
Agent or any Lender in connection with enforcement of the Loan Documents or
the defense of Administrative Agent's or any Lender's exercise of its
rights thereunder. The selection of Managing Agents' counsel and
consultants in connection with the matters described in the preceding
sentence shall be subject to the approval of Borrower, which approval shall
not be unreasonably withheld. Attorneys' fees reimbursed by Borrower for
any amendment, modification or restatement of any Loan Document shall be
estimated and approved by Borrower prior to incurrence, such approval not
to be unreasonably withheld. Attorneys' fees reimbursed by Borrower in
connection with the enforcement of the Loan Documents or the defense of
Administrative Agent's or any Lenders' exercise of its rights hereunder
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shall be for a single law firm per country (unless conflicts (including
conflicts between Managing Agents and the other Lenders as determined in
the reasonable discretion of the Required Lenders) otherwise prohibit the
engagement of a single law firm).
(i) Compliance with Agreements and Law. Borrower and Parent will, and will
cause each of their respective Subsidiaries to (1) perform all material
obligations it is required to perform under the terms of each material
agreement, contract or other instrument or obligation to which it is a
party or by which it or any of its material properties is bound, except for
any non-performance that will not have or reasonably be expected to have a
Material Adverse Effect; and (2) conduct its business and affairs in
material compliance with all laws, regulations, and orders applicable
thereto (including without limitation Environmental Laws) except for any
non-compliance that could not reasonably be expected to have a Material
Adverse Effect.
(j) Maintenance of Business. 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.
(k) Operations. Borrower will, and will cause each Restricted Subsidiary to,
cause all material properties to be regularly operated, maintained and
developed in a good and workmanlike manner, as would a prudent operator and
in accordance with all applicable federal, state and local laws, rules and
regulations, except for any failure to so operate, maintain and develop
that could not reasonably be expected to have a Material Adverse Effect.
Section 5.2 Negative Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower, unless Required Lenders shall have
previously agreed otherwise in writing, Borrower and, as applicable, Parent,
severally for itself and their respective Subsidiaries covenants and agrees
that:
(a) Limitation on Debt. Parent and Borrower will not, and will not permit any
Restricted Subsidiary to, in any manner owe or be liable for Debt except:
(1) the Obligations;
(2) Debt pursuant to the Primary Facility;
(3) unsecured Debt among Obligors;
(4) Debt arising under capital leases which does not in the aggregate for
Parent, Borrower and all Restricted Subsidiaries exceed $20,000,000 at
any one time outstanding;
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(5) Debt, other than Debt otherwise permitted by another subparagraph of
this Section 5.2(a), which, at the time incurred, is at prevailing
market rates of interest and contains convenants and conditions and
rates of interest and contains covenants and conditions and events of
default no more onerous to Obligors than the terms of this Agreement;
provided, that no Default or Event of Default will result from the
incurrence of such Debt and be continuing;
(6) guaranties of Debt which is the primary obligation of an Obligor and
permitted under this Section 5.2(a);
(7) Debt arising (whether by contract or as a result of statutory
liability of a general partner) by virtue of any Obligor being a
general partner of a general or limited partnership pursuant to
agreements in effect on the Effective Date not in excess of the
aggregate amounts permitted to be incurred pursuant to such agreements
on the Effective Date for all such Debt and other such Debt otherwise
permitted pursuant to the other subparagraphs of this Section 5.2(a);
and
(8) Debt existing on the Effective Date which is disclosed (i) in the
Updated Financial Statements or (ii) in the Disclosure Schedule and
any extensions, renewals or replacements thereof upon terms no more
onerous to Borrower than the terms of this Agreement or the terms of
the instruments evidencing such Debt as of the date of this Agreement.
(b) Negative Pledge. Borrower and Parent will not, and will not permit any of
their respective Restricted Subsidiaries to, create, assume or permit to
exist any Lien upon any of their respective material property, except
Permitted Liens.
(c) Limitation on Mergers. Except as expressly provided Borrower and Parent
will not, and will not permit any of their Restricted Subsidiaries to,
merge or consolidate with or into any other business entity, except (1)
Parent or Borrower may be party to a merger or consolidation so long as the
surviving entity is Parent or Borrower and no Default will exist and the
Obligations do not exceed the Facility Amount after giving effect thereto
and (2) any Restricted Subsidiary may be a party to any merger or
consolidation so long as the surviving entity is a Restricted Subsidiary
and any Guaranty of, or Pledge Agreement by, such Restricted Subsidiary
continues as to such surviving entity, no Default will exist, and the
Obligations do not exceed the Facility Amount after giving effect thereto.
(d) Limitation on Disposition of Capital Stock of Restricted Subsidiaries.
Borrower will not, and will not permit any Restricted Subsidiary to, sell,
transfer or otherwise dispose of capital stock of any Restricted
Subsidiary, except that Borrower and any Restricted Subsidiary may sell,
issue, transfer or otherwise dispose of the capital stock of any Restricted
Subsidiary to Parent, Borrower or to another Restricted Subsidiary.
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(e) Limitation on Restricted Payments. Parent and Borrower will not, and will
not permit any Restricted Subsidiary to, make Restricted Payments in excess
of $50,000,000 in the aggregate for the duration of this Agreement for all
such Restricted Payments; provided, however, that in the event that any
Unrestricted Subsidiary of Borrower is determined to be a Restricted
Subsidiary of Borrower for purposes of this Agreement, then for purposes of
determining compliance with this Section, all Restricted Payments made to
such Unrestricted Subsidiary shall be deducted from the aggregate total of
all Restricted Payments made for the duration of this Agreement. No
Restricted Payment may be made (1) if the Obligations shall exceed the
Facility Amount or (2), if any Default or Event of Default shall have
occurred and be continuing, or (3) if as a result thereof, any Default or
Event of Default shall have occurred and be continuing.
(f) Transactions with Affiliates. Parent and Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any material
transaction with any of Borrower's Affiliates on terms which are less
favorable than those which would have been obtainable at the time in
arm's-length dealing with Persons other than such Affiliates, provided,
however that such restriction shall not apply to transactions among
Borrower and its Restricted Subsidiaries, (ii) among Restricted
Subsidiaries.
(g) Limitations on Restricted Subsidiaries. Parent and Borrower will not permit
any Restricted Subsidiary to become subject to covenants which:
(1) restrict dividends or dividend capacity;
(2) restrict loans and advances to Borrower;
(3) restrict the ability to make tax payments or management payments to
Borrower; or
(4) restrict the capitalization structure of any Restricted Subsidiary.
(h) Limitation on Sale/Leasebacks. Obligors will not enter into any
arrangement, directly or indirectly, with any Person whereby any Obligor
shall sell or transfer any material asset, and whereby any Obligor shall
then or immediately thereafter rent or lease as lessee such asset or any
part thereof.
(i) Conversion of Restricted Subsidiary to Unrestricted Subsidiary. Parent and
Borrower may convert any Restricted Subsidiary to an Unrestricted
Subsidiary by giving Administrative Agent at least five (5) Business Days'
notice of such conversion in the form of Exhibit K-1 attached hereto;
provided that (1) no Restricted Subsidiary shall be so converted so long as
it owns or will thereafter own, directly or indirectly, any interest in any
material asset or in another Restricted Subsidiary unless the value of such
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material assets, together with the aggregate of all Restricted Payments
made and the value of any other material assets determined as aforesaid of
any Restricted Subsidiaries converted to Unrestricted Subsidiaries do not
exceed in the aggregate the limitation on Restricted Payments contained in
Section 5.2(e) hereof, and (2) no such conversion shall be made if after
giving effect to such conversion, any Default would exist. Upon any such
conversion of a Restricted Subsidiary to an Unrestricted Subsidiary, such
Subsidiary shall be released from its obligations under its Guaranty, and
Managing Agents and Lenders shall execute and deliver a release
substantially in the form of Exhibit K-2 hereto.
(j) Margin Securities. Proceeds of the Loans will not be used to purchase or
carry Margin Stock except in compliance with the Margin Regulations.
Section 5.3 Financial Covenants. To conform with the terms and
conditions under which each Lender is willing to have credit outstanding to
Borrower, and to induce Managing Agents and each Lender to enter into this
Agreement and make the Loans to Borrower, unless Required Lenders shall have
previously agreed otherwise in writing, Borrower and, as applicable, Parent,
severally for itself and their respective Subsidiaries covenants and agrees
that:
(a) EBITDAX to Consolidated Interest Expense Ratio. The ratio of Parent's
"EBITDAX" to "Consolidated Interest Expense" for the last four rolling
Fiscal Quarters will not be less than 3.75 to 1.0; provided, however, that
the EBITDAX to Consolidated Interest Expense Ratio shall first be
calculated on December 31, 1997; provided further that for the periods for
calculation ending on or before September 30, 1998, each reference to "for
the last four rolling Fiscal Quarters" shall be deemed to be a reference to
the period from October 1, 1997 through the date of such calculation. As
used in this paragraph, the term "Consolidated Interest Expense" means for
any period, total interest expense, whether paid or accrued, of Parent,
Borrower and their respective Subsidiaries on a Consolidated basis,
including, without limitation, all commissions, discounts and other fees
and charges owed with respect to Letters of Credit (as defined in the
Primary Facility). As used in this paragraph, the term "EBITDAX" means for
any period the sum of the amounts for such period of Consolidated net
income, Consolidated Interest Expense, depreciation expense, depletion
expense, amortization expense, federal and state income taxes, exploration
and abandonment expense and other non-cash charges and expenses, all as
determined on a Consolidated basis for Parent, Borrower and their
respective Subsidiaries.
(b) Consolidated Total Funded Debt to Total Capitalization. Parent's
Consolidated Total Funded Debt to Total Capitalization will not, as of the
last day of any Fiscal Quarter, be greater than 60%.
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ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default. Each of the following events
constitutes an "Event of Default" under this Agreement:
(a) Borrower shall default on the payment when due of any principal on any of
its Loans or any of its Notes;
(b) Borrower fails to pay any of its Obligations (other than principal) when
due and payable, whether interest in respect of any Loan or any fee or any
other amounts payable under any of the Loan Documents and such failure
shall continue unremedied for a period of five (5) Business Days; provided,
however, that any such Default shall not constitute an Event of Default if
subsequently available information indicates that a payment made when due
was insufficient because of a good faith error in calculation so long as
Borrower shall cure such deficiency within five (5) Business Days after
Borrower becomes aware of such deficiency;
(c) any Obligor fails to duly observe, perform or comply with any covenant,
agreement, condition or provision set forth in Section 5.1(d) or 5.2 of
this Agreement;
(d) any Obligor fails (other than as referred to in subsections (a), (b) and
(c) above) to duly observe, perform or comply with any covenant, agreement,
condition or provision of any Loan Document applicable to it (even if all
or part of such agreement or covenant is void or unenforceable), and such
failure is not remedied within thirty (30) Business Days after written
notice thereof shall have been sent to Borrower by Administrative Agent or
any Lender;
(e) any representation or warranty previously, presently or hereafter made in
writing or deemed made by or on behalf of any Obligor in connection with
any Loan Document shall have been false or incorrect in any material
respect on any date on or as of which 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;
(f) any Obligor (1) fails to pay when due Debt in excess of $20,000,000 or (2)
breaches or defaults in the performance of any agreement or instrument by
which any such Debt in excess of $20,000,000 is issued, evidenced,
governed, or secured, and any such failure, breach or default continues
beyond any applicable period of grace provided therefor;
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(g) either (1) any "accumulated funding deficiency" (as defined in Section
412(a) of the Internal Revenue Code of 1986, as amended) in excess of
$10,000,000 exists with respect to any ERISA Plan, whether or not waived by
the Secretary of the Treasury or his delegate, or (2) any Termination Event
which has a Material Adverse Effect occurs with respect to any ERISA Plan
and the then current value of such ERISA Plan's benefit liabilities exceeds
the then current value of such ERISA Plan's assets available for the
payment of such benefit liabilities by more than $10,000,000 (or in the
case of a Termination Event involving the withdrawal of a substantial
employer, the withdrawing employer's proportionate share of such excess
exceeds such amount);
(h) any Obligor:
(1) suffers the commencement of any involuntary bankruptcy,
reorganization, debt arrangement, winding up, dissolution, official
management or administration, or other case or proceeding under any
bankruptcy or insolvency law or the entry against it of a judgment,
decree or order for relief by a court of competent jurisdiction in
such a case or proceeding, which in either case remains undismissed
for a period of sixty (60) days; provided that each Obligor hereby
expressly authorizes each Agent and each Lender to appear in any court
proceeding during such sixty (60) day period to preserve, protect and
defend their rights under the Loan Documents;
(2) commences a voluntary case under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect, including, without
limitation, the United States Bankruptcy Code or the Corporations Law
of Australia, as from time to time amended; or applies for or consents
or acquiesces to the entry of an order for relief in an involuntary
case under any such law, or becomes insolvent or makes a general
assignment for the benefit of creditors, or fails generally to pay (or
admits in writing its inability to pay) its debts as such debts become
due, or takes corporate or other action to authorize any of the
foregoing;
(3) suffers the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator, administrator
or similar official of all or a substantial part of its assets in a
proceeding brought against or initiated by it, and such appointment is
neither made ineffective nor discharged within sixty (60) days after
such event or such appointment or taking possession is at any time
consented to, requested by, or acquiesced to by such Obligor;
(4) suffers the entry against it of a final judgment for the payment of
money in excess of $20,000,000 (not covered by insurance satisfactory
to Administrative Agent in its discretion), unless the same is
discharged within thirty (30) days after the date of entry thereof or
an appeal or appropriate proceeding for review thereof is taken within
such period and a stay of execution pending such appeal is obtained
and continues; or
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(5) suffers a writ or warrant of attachment or any similar process to be
issued by any court against all or any substantial part of its
property, and such writ or warrant of attachment or any similar
process is not stayed or released within thirty (30) days after the
entry or levy thereof or after any stay is vacated or set aside;
(i) (a) any person (other than Parent, Borrower, a Restricted Subsidiary of
Borrower or any employee benefit plan of Borrower or any of its
Subsidiaries) or group (as such term is used in Section 13(d) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended) shall acquire, directly
or indirectly, beneficial ownership of an aggregate of 35% or more of the
issued and outstanding voting stock of Parent or (b) during any period of
two consecutive years ending on or after the Effective Date, as determined
as of the last day of each calendar quarter after the Effective Date, the
individuals (the "Incumbent Directors") who at the beginning of such period
constituted the Board of Directors of Parent (other than additions thereto
or removals therefrom from time to time thereafter approved by a vote of at
least two-thirds of such Incumbent Directors) shall cease for any reason to
constitute 50% or more of the Board of Directors of Parent; provided,
however, that for each determination period ending on or before September
30, 1999, each determination period shall be deemed to be a period from the
Effective Date through the date of such calculation;
(j) any of the Loan Documents are determined to be invalid or unenforceable in
any material respect;
(k) (1) any Restricted Subsidiary other than any Foreign Restricted
Subsidiary, and any of their respective Restricted Subsidiaries fails
to execute and deliver to Collateral Agent a Guaranty of the type
referred to in clause (i) of the definition of "Guaranty", within 30
days of becoming a Restricted Subsidiary;
(2) unless and to the extent that any Foreign Restricted Subsidiary or any
other Restricted Subsidiary is prohibited from, or subject to adverse
tax consequences as a result of, guaranteeing the Obligations under
this Agreement (a) under Section 956 of the Internal Revenue Code of
1986, as amended, reformed or otherwise modified from time to time
("ss.956") (b) pursuant to contractual restrictions in existence prior
to the Effective Date or (c) as a matter of corporate law, any Foreign
Restricted Subsidiary or any other Restricted Subsidiary fails to
execute and deliver to Collateral Agent, a Guaranty of the type
referred to in clause (i) of the definition of "Guaranty" together
with in the case of any Foreign Restricted Subsidiary, a notice in
relation to such Guaranty or, in the case of any Restricted Subsidiary
subject to the Corporation Laws of Australia, a certificate under
Section 206(6) of the Corporations Laws of Australia in relation to
such Guaranty, in each case (1) as soon as practicable following the
termination or inapplicability of the contractual restrictions,
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corporate law prohibitions and adverse tax consequences referred to in
this paragraph or (2) if no such contractual restrictions, corporate
law prohibitions and adverse tax consequences apply, as soon as
practicable following a determination that such contractual
restrictions, corporate law prohibitions and adverse tax consequences
do not apply;
(l) unless and to the extent that (a) any such pledge or mortgage would result
in (i) substantial stamp or similar taxes or (ii) adverse tax consequences
pursuant to ss.956, (b) any such pledge or mortgage is prohibited either
(i) pursuant to contractual restrictions in existence prior to the
Effective Date or (ii) as a matter of corporate law, or (c) a Guaranty of
the type referred to in clause (i) of the definition of "Guaranty" has been
executed and delivered by the Restricted Subsidiary the capital stock or
shares of which would otherwise be subject to pledge or mortgage under this
paragraph, Borrower, or any Subsidiary of Borrower, owning capital stock or
shares of any Restricted Subsidiary of any Foreign Restricted Subsidiary,
fails (x) to execute and deliver to Collateral Agent the Pledge Agreements,
together with all issued and outstanding stock or shares of such Restricted
Subsidiary of such Foreign Restricted Subsidiary and stock powers or share
transfers executed in blank, together with a either a certificate under
Section 206 (6) of the Corporations Law of Australia or a notice of the
type described in Section 6.1(k)(2) hereof, in each case in relation to
to such Pledge Agreement, as the case may be and if applicable, as soon as
practicable after the termination or inapplicability of such contractual
restrictions and corporate law prohibitions and adverse tax consequences
referred to in this paragraph and (y) to repay all Obligations and other
amounts as soon as practical after the termination or inapplicability of
such contractual restrictions and corporate law prohibitions and adverse
tax consequences referred to in this paragraph; or
(m) any Obligor, to the extent applicable, fails, (x) promptly upon the
reasonable request of the Managing Agents at any time or from time to time
prior to the applicable Stock Pledge Release Date, as the case may be, (1)
to execute, acknowledge or deliver, or to cause to be executed,
acknowledged or delivered, or to register, record or file, or to cause to
be registered, recorded or filed, any document or instrument necessary or
advisable or as Required Lenders may from time to time reasonably deem to
be necessary or advisable in connection with the grant, creation,
preservation, perfection or maintenance, as first, prior and perfected
Liens, the Liens created, or intended to be created, by the applicable
Security Instruments, subject only to Permitted Liens or (2) to perform or
to continue to perform at all times and from time to time all actions
necessary or advisable or reasonably deemed to be necessary or advisable by
the Required Lenders in connection with such creation, preservation,
perfection and maintenance; and (y) to repay all Obligations and other
amounts as soon as practical after receipt of the reasonable request of
Managing Agents pursuant to the foregoing clause (x);
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provided, however, that the foregoing events which affect only Restricted
Subsidiaries that (a) are not guarantors of the Obligations, and (b) are
immaterial (as determined by the Managing Agents), shall not constitute "Events
of Default" under this Agreement. It is agreed by the parties hereto that so
long as Borrower or any Restricted Subsidiary has made reasonable efforts under
the circumstances to obtain the approvals required by Section 205(10) of the
Corporations Law of Australia (if applicable), the foregoing paragraphs (k)(2),
(l) and (m) shall not require any Restricted Subsidiaries to provide any pledge
or guaranty prohibited by corporate law unless the requirements of such Section
205(10) of the Corporations Law of Australia, to the extent applicable, have
been satisfied.
Upon the occurrence of an Event of Default described in Section 6.1(h)(1), (2)
or (3) with respect to Borrower, the Commitments shall automatically terminate
and all of the Obligations shall thereupon be immediately due and payable,
without demand, presentment, notice of demand or of dishonor and nonpayment,
protest, notice of protest, notice of intention to accelerate, declaration or
notice of acceleration, or any other notice or declaration of any kind, all of
which are hereby expressly waived by Borrower and each Obligor who at any time
ratifies or approves this Agreement. During the continuance of any other Event
of Default, Administrative Agent at any time and from time to time upon written
instructions from Required Lenders (which, for purposes of this sentence only,
shall be determined giving effect to each Lender's outstanding Swing Line
Advances and Competitive Bid Advances) shall, by notice to Borrower (but
otherwise without notice to any other Obligor), declare the Commitments to be
terminated, and/or declare any or all of the Obligations immediately due and
payable, and all such Obligations shall thereupon be immediately due and
payable, without demand, presentment, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intention to accelerate,
declaration or notice of acceleration, or any other notice or declaration of any
kind, all of which are hereby expressly waived by Borrower and each Obligor who
at any time ratifies, approves or guaranties this Agreement.
Section 6.2 Remedies. If any Default shall occur and be continuing,
each Lender or Administrative Agent on behalf of Lenders may protect and enforce
its rights under the Loan Documents by any appropriate proceedings, including,
without limitation, proceedings for specific performance of any covenant or
agreement contained in any Loan Document, and each Lender may enforce the
payment of any Obligations due it or enforce any other legal or equitable rights
which it may have. Additionally, under such circumstances, the Required Lenders
or, at the direction of Required Lenders, the Trustee (or Collateral Agent) may
proceed to protect the Lenders' rights under the Security Instruments. All
rights, remedies and powers conferred upon Administrative Agent and Lenders
under the Loan Documents are cumulative and not exclusive of any other rights,
remedies or powers available under the Loan Documents or at law or in equity.
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Section 6.3 Annulment of Acceleration. If a declaration of
acceleration is made pursuant to this Article 6, then Required Lenders, by
written notice to Borrower and Administrative Agent, may collectively rescind
and annul such declaration in its entirety; provided, that at the time such
declaration is annulled and rescinded: (a) no judgment or decree has been
entered for the payment of any moneys due pursuant to any Note or this
Agreement; (b) all arrears of interest upon all the Notes and all other sums
payable under the Notes and this Agreement (other than principal amounts which
may have become due as a result of acceleration), including interest upon
overdue interest, to the extent payment thereof is lawful, shall have been duly
paid; and (c) each and every other Event of Default which has theretofore
occurred shall have been waived pursuant to Section 8.1 or otherwise made good
or cured.
Section 6.4 Indemnity. Borrower hereby indemnifies each Agent and
each Lender, from and against any and all liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (including reasonable fees of attorneys, accountants, experts and
advisors) of any kind or nature whatsoever (in this Section collectively called
"liabilities and costs") which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against such Agent or such Lender as a
result of, arising out of, relating to or in connection with:
(a) the Loan Documents to which Borrower or one or more of its Subsidiaries is
a party or the rights provided therein (including the enforcement or
defense thereof);
(b) the direct or indirect application or proposed application of the proceeds
of any Loan to or for Borrower or any of its Subsidiaries;
(c) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan to or for Borrower or any of its
Subsidiaries;
(d) any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter (including enforcement) relating
to any Environmental Law or the condition of any facility or property
owned, leased or operated by Borrower or any of its Subsidiaries; or
(e) the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases from, any facility owned or
operated by Borrower or any of its Subsidiaries of any hazardous or toxic
substance (including any liabilities and costs under any Environmental
Law), regardless of whether caused by, or within the control of, Borrower
or any of its Subsidiaries; or any misrepresentation, inaccuracy or any
breach in or of Section 4.1(j) or Section 5.1(i) by or with respect to
Borrower or any of its Subsidiaries.
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The foregoing indemnification shall not apply to the extent such liabilities and
costs are determined to have resulted or been caused, in whole or in part, by
the gross negligence or willful misconduct on the part of such Agent or Lender.
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND EXCEPT AS PROVIDED BY THE IMMEDIATELY
PRECEDING SENTENCE. In the event that any claim or demand for which Borrower
would be liable to any Agent or any Lender under this Section is asserted
against or sought to be collected from any Agent or any Lender by a third party,
Agent or such Lender shall promptly notify Borrower of such claim or demand.
Borrower shall have the lesser of: (i) thirty (30) Business Days from receipt of
the above notice; or (ii) three (3) Business Days prior to the expiration of any
period after which a default judgment may be entered against such Agent or
Lender (the "Notice Period") to notify such Agent and/or Lender whether or not
Borrower desires, at the sole cost and expense of Borrower, to defend such Agent
and/or Lender against such claim or demand. In the event that Borrower notifies
such Agent and/or Lender within the Notice Period, that it desires to defend
such Agent and/or Lender against such claim or demand, Borrower shall have the
right to settle or otherwise dispose of such claim or demand (other than claims
alleging criminal violations) on such terms as Borrower, with the consent of the
indemnified party (which consent shall not be unreasonably withheld) shall deem
appropriate; provided that:
(w) counsel designated by Borrower is reasonably acceptable to the
Managing Agents and the affected Lender;
(x) Borrower will have acknowledged in writing that this Section
will cover any liabilities and costs in any such claim or
demand;
(y) in the sole determination of the Managing Agents and the
affected Lender, Borrower will have the financial ability to
pay such liabilities and costs; and
(z) Borrower shall thereafter consult with the Managing Agents and
the affected Lender with respect to such claim or demand; and
provided further, that each of Agents and the affected Lender shall have the
right at all times to participate in any proceeding, at their sole cost and
expense, subject, however, to Borrower's right to control the defense of all
proceedings concerning such claim or demand.
In the event that Borrower fails to give such Agent and/or Lender such notice,
such Agent and/or Lender may defend against such claim or demand; provided,
however, that Borrower's obligation to reimburse such Agent and/or Lender shall
be limited to a single law firm of such Agent and/or Lender (unless Borrower
otherwise consents, which consent shall not be unreasonably withheld); provided
further, that Borrower shall have the right at all times to participate in any
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such proceeding, at its sole cost and expense, subject, however, to the right of
such Agent and/or Lender to control the defense of all proceedings concerning
such claim or demand. As used in this Section, the terms "Agent" and "Lender"
shall refer not only to the Persons designated as such in Section 1.1 but also
to each director, officer, agent, attorney, employee and representative of such
Person.
ARTICLE 7
AGENTS
Section 7.1 Appointment and Authority. NationsBank of Texas, N.A. is
hereby appointed Administrative Agent hereunder and under each other Loan
Document, CIBC Inc. is hereby appointed Documentation Agent hereunder and under
each other Loan Document, Morgan Guaranty Trust Company of New York is hereby
appointed Documentation Agent hereunder and under each other Loan Document and
The Chase Manhattan Bank is hereby appointed Syndication Agent hereunder and
under each other Loan Document, each Co-Agent is hereby appointed Co-Agent
hereunder and under each other Loan Document, and each of the Lenders hereby
authorizes each such Agent to act as the agent of such Lender hereunder and each
other Loan Document to the extent provided herein or therein. In addition, each
Lender hereby irrevocably authorizes Administrative Agent, and Administrative
Agent hereby undertakes, to receive payments of principal, interest due
hereunder as specified herein and to act as Collateral Agent under the Security
Instruments. In addition, each Lender hereby authorizes each Agent, and each
Agent hereby undertakes to take all other actions and to exercise such powers
under the Loan Documents as are specifically delegated to such Agent by the
terms hereof or thereof, together with all other powers reasonably incidental
thereto. No Co-Agent has any duties or responsibilities whatsoever as Co-Agent
(as opposed to its capacity as Lender) under or in connection with this
Agreement or any of the Loan Documents. The relationship of each Agent to Lender
is only that of one commercial bank acting as administrative agent for others,
and nothing in the Loan Documents shall be construed to constitute any Agent a
trustee or other fiduciary for any holder of any of the Notes or of any
participation therein, nor to impose on any Agent duties and obligations other
than those expressly provided for in the Loan Documents. None of the Agents
shall have implied duties to Lenders, or any obligations to Lenders to take any
action under the Loan Documents, except any action by an Agent specifically
provided by the Loan Documents to be taken by such Agent. With respect to any
matters not expressly provided for in the Loan Documents and any matters which
the Loan Documents place within the discretion of any Agent, such Agent shall
not be required to exercise any discretion or take any action, and each such
Agent may request instructions from Lenders with respect to any such matter, in
which case such Agent shall be required to act or to refrain from acting (and
shall be fully protected and free from liability to any and all Lenders and
Agents in so acting or refraining from acting) upon the instructions of Required
Lenders (including itself); provided, however, that no Agent shall be required
to take any action which exposes it to a risk of personal liability that it
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considers unreasonable or which is contrary to the Loan Documents or to
applicable law unless indemnified to its satisfaction by Lenders or Borrower.
Upon receipt by Administrative Agent from Borrower of any communication calling
for action on the part of Lenders or upon notice from any Lender to
Administrative Agent of any Default or Event of Default, Administrative Agent
shall promptly notify each Lender thereof.
Section 7.2 Agent's Reliance. No Agent or any of their respective
directors, officers, agents, attorneys, or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
the Loan Documents, including their negligence of any kind, except that each
shall be liable for its own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until Administrative
Agent receives written notice of the assignment or transfer thereof in
accordance with this Agreement, signed by such payee and in form
satisfactory to Administrative Agent;
(b) may consult with legal counsel (including counsel for Borrower),
independent public accountants and other experts selected by such Agent and
shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
(c) makes no warranty or representation to any Lender or to any other Agent and
shall not be responsible to any Lender or Agent for any statements,
warranties or representations made in or in connection with the Loan
Documents by any other Person;
(d) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of the Loan
Documents on the part of any Obligor or to inspect the property (including
the books and records) of any Obligor;
(e) shall not be responsible to any Lender or to any other Agent for the due
execution (other than its own due execution and delivery), legality,
validity, enforceability, genuineness, existence, sufficiency or value of
any Loan Document, the Credit Facility Agreement or any instrument or
document furnished in connection herewith, or any collateral;
(f) may rely upon the representations and warranties of any Obligor and the
Lenders in exercising its powers hereunder;
(g) shall not be responsible for the satisfaction of any condition specified in
Article 3, except receipt by an Agent of items required to be delivered to
such Agent; and
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(h) shall incur no liability under or in respect of the Loan Documents by
acting upon any notice, consent, certificate or other instrument or writing
(including any telecopy, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper Person or Persons.
Section 7.3 Lenders' Credit Decisions. Each Lender acknowledges that
it has, independently and without reliance upon any Agent or any other Lender,
made its own analysis of Obligors and the transactions contemplated hereby and
its own independent decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents.
Section 7.4 Indemnification. Each Lender agrees to indemnify each
Agent (to the extent not reimbursed by Borrower within ten (10) days after
demand) from and against such Lender's Percentage Share of any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (including reasonable fees of
attorneys, accountants, experts, and advisors) of any kind or nature whatsoever
(in this Section collectively called "liabilities and costs") which to any
extent (in whole or in part) may be imposed on, incurred by, or asserted against
such Agent growing out of, resulting from or in any other way associated with
any of the Loan Documents and the transactions and events (including, without
limitation, the enforcement thereof) at any time associated therewith or
contemplated therein. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT
SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR
IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY AGENT, PROVIDED
ONLY THAT NO LENDER SHALL BE OBLIGATED UNDER THIS SECTION TO INDEMNIFY AN AGENT
FOR THAT PORTION, IF ANY, OF ANY LIABILITIES AND COSTS WHICH IS THE SOLE RESULT
OF SUCH AGENT'S OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS
DETERMINED IN A FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. Cumulative
of the foregoing, each Lender agrees to reimburse Administrative Agent, each
Documentation Agent and Syndication Agent promptly upon demand for such Lender's
Percentage Share of any costs and expenses to be paid to Administrative Agent,
the Documentation Agent or the Syndication Agent by Borrower under Section
5.1(h) to the extent that Administrative Agent, the Documentation Agent or the
Syndication Agent is not timely reimbursed for such expenses by Borrower as
provided in such section. As used in this Section the term "Agents" shall refer
not only to the Person(s) designated as such in Section 1.1 but also to each
director, officer, agent, attorney, employee and representative of such
Person(s).
Section 7.5 Rights as Lender. In their respective capacity as a
Lender, each Agent shall have the same rights and obligations as any Lender and
may exercise such rights as though it were not an Agent. Each Agent may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with any of Obligors or their Affiliates, all as
if it were not an Agent hereunder and without any duty to account therefor to
any other Lender.
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Section 7.6 Sharing of Set-Offs and Other Payments. Each Agent and
Lender agrees that if it shall, whether through the exercise of rights under
security documents or rights of banker's lien, setoff, or counterclaim against
any Obligor or otherwise, obtain payment of a portion of the aggregate
Obligations owed to it (other than in respect of its Swing Line Advances and its
Competitive Bid Advances) which, taking into account all distributions made by
Administrative Agent under Section 2.11, causes such Agent or such Lender to
have received more than it would have received had such payment been received by
Administrative Agent and distributed pursuant to Section 2.11 (or, in the case
of Swing Line Advances paid as provided in Section 2.6(b) or in the case of
Competitive Bid Advances paid as provided in Section 2.22(b)), then it shall be
deemed to have simultaneously purchased and shall be obligated to purchase
interests in the Obligations as necessary to cause Administrative Agent and all
Lenders to share all payments (other than in respect of Swing Line Advances and
Competitive Bid Advances) as provided for in Section 2.11, and such other
adjustments shall be made from time to time as shall be equitable to ensure that
all Agents and all Lenders share all payments of Obligations (other than in
respect of its Swing Line Advances and Competitive Bid Advances) as provided in
Section 2.11. If any Agent or any Lender, whether in connection with setoff of
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which might be subject to
setoff, such Agent or Lender agrees, promptly upon demand, to take such action
necessary so that all Agents and all Lenders share in the benefits of such
collateral ratably in proportion to the Obligations owing to each of them.
Nothing herein contained shall in any way affect the right of any Agent or any
Lender to obtain payment (whether by exercise of rights of banker's lien,
set-off or counterclaim or otherwise) of indebtedness other than the
Obligations. Borrower expressly consents to the foregoing arrangements and
agrees that any holder of any such interest or other participation in the
Obligations, whether or not acquired pursuant to the foregoing arrangements, may
to the fullest extent permitted by law exercise any and all rights of banker's
lien, set-off, or counterclaim as fully as if such holder were a holder of the
Obligations in the amount of such interest or other participation. If all or any
part of any funds transferred pursuant to this Section is thereafter recovered
from the seller under this Section which received the same, the purchase
provided for in this Section shall be deemed to have been rescinded to the
extent of such recovery, together with interest, if any, if interest is required
pursuant to court order to be paid on account of the possession of such funds
prior to such recovery.
Section 7.7 Investments. Whenever Administrative Agent in good faith
determines that it is uncertain about how to distribute to Lenders any funds
which it has received, or whenever Administrative Agent in good faith determines
that there is any dispute among Lenders about how such funds should be
distributed, Administrative Agent may choose to defer distribution of the funds
which are the subject of such uncertainty or dispute. If Administrative Agent in
good faith believes that the uncertainty or dispute will not be promptly
resolved, or if Administrative Agent is otherwise required to invest funds
pending distribution to Lenders, Administrative Agent may invest such funds
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pending distribution (at the risk of the subject Borrower); all interest on any
such investment shall be distributed upon the distribution of such investment
and in the same proportion and to the same Persons as such investment. All
moneys received by Administrative Agent for distribution to Lenders (other than
to the Person who is Administrative Agent in its separate capacity as a Lender)
shall be held by Administrative Agent pending such distribution solely as
Administrative Agent for such Lenders, and Administrative Agent shall have no
equitable title to any portion thereof.
Section 7.8 Benefit of Article 7. The provisions of this Article
(other than the following Section 7.9) are intended solely for the benefit of
Agent and Lenders, and no Obligor shall be entitled to rely on any such
provision or assert any such provision in a claim or defense against Agent or
any Lender. Agent and Lenders may waive or amend such provisions as they desire
without any notice to or consent of any Obligor.
Section 7.9 Resignation and Removal. Any Agent may resign at any time
by giving written notice thereof to Lenders and Borrower. Each such notice shall
set forth the date of such resignation. Majority Lenders or Borrower, with the
consent (which shall not be unreasonably withheld) of Majority Lenders (other
than Agent to be removed) shall be entitled to remove any Agent. Upon any such
resignation or removal, Borrower may, with the written concurrence (which shall
not be unreasonably withheld) of Majority Lenders (exclusive of any such
resigned or removed Agent), designate a successor Agent. If, within fifteen (15)
days after the date of such resignation or removal, Borrower makes no such
designation or such written concurrence is not given, Majority Lenders
(exclusive of any such resigned or removed Agent) shall, with the consent of
Borrower (which consent shall not be unreasonably withheld or delayed), have the
right to appoint a successor Agent. A successor must be appointed for any
retiring Managing Agent, and such Managing Agent's resignation shall become
effective when such successor accepts such appointment. Upon the acceptance of
any appointment as a Managing Agent hereunder by a successor Managing Agent and
the satisfaction of all obligations on the part of such retiring or removed
Managing Agent necessary to facilitate succession, the retiring or removed
Managing Agent, as the case may be, shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any Agent's
resignation or removal hereunder, the provisions of this Article 7 shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under the Loan Documents. Any out-going Agent shall
promptly execute all assignments and other documents necessary to effectuate the
transfer of the agency in connection with this Agreement and shall promptly
deliver all original documents and any collateral in its possession to the
successor Agents.
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ARTICLE 8
MISCELLANEOUS
Section 8.1 Waivers and Amendments. No failure or delay (whether by
course of conduct or otherwise) by any Agent or any Lender in exercising any
right, power or remedy which any Agent or Lender may have under any of the Loan
Documents shall operate as a waiver thereof or of any other right, power or
remedy, nor shall any single or partial exercise by any Agent or Lender of any
such right, power or remedy preclude any other or further exercise thereof or of
any other right, power or remedy. No waiver of any provision of any Loan
Document and no consent to any departure therefrom shall ever be effective
unless it is in writing and signed as provided below in this Section, and then
such waiver or consent shall be effective only in the specific instances and for
the purposes for which given and to the extent specified in such writing. No
notice to or demand on any Obligor shall in any case of itself entitle any
Obligor to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Loan Documents set forth the entire
understanding between the parties hereto with respect to the transactions
contemplated herein and therein and supersede all prior discussions and
understandings with respect to the subject matter hereof and thereof, and no
waiver, consent, release, modification or amendment of or supplement to this
Agreement or the other Loan Documents shall be valid or effective against any
party hereto unless the same is in writing and signed by (a) if such party is an
Obligor, by such Obligor, (b) if such party is an Agent, by such Agent and (c)
if such party is a Lender, by such Lender or by Administrative Agent on behalf
of Lenders with the written consent of Required Lenders (or without further
consent than that already provided herein in the circumstances provided in
Section 8.7). Notwithstanding the foregoing or anything to the contrary herein
or in any other Loan Document, no Agent shall, without the prior consent of each
Lender, execute and deliver on behalf of any Lender any waiver or amendment
which would:
(i) increase the Commitment of such Lender or subject such Lender to any
additional obligations;
(ii) reduce or forgive any fees hereunder, or the principal of, or interest
on, such Lender's Notes;
(iii) postpone any date fixed for any payment of any fees hereunder, or
principal of, or interest on, such Lender's Notes;
(iv) amend the definitions herein of "Required Lenders" or "Majority
Lenders" or otherwise change the aggregate amount of Percentage Shares
which is required for Administrative Agent, any other Agent, Lenders
or any of them to take any particular action under the Loan Documents;
(v) release collateral (except as expressly contemplated by this
Agreement) or any Borrower from its obligation to pay such Lender's
Notes or any Restricted Subsidiary from its Guaranty (except upon the
Restricted Subsidiary becoming an Unrestricted Subsidiary as specified
in this Agreement);
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(vi) amend this Section 8.1;
(vii) extend the Loan Commitment Period;
(ix) amend, modify or waive any provision applicable to the indemnification
of any Lender;
(x) consent to the assignment or transfer by any Obligor of any of its
rights or obligations under this Agreement or the other Loan
Documents; or
(xi) amend, modify or waive the rights and obligations of the Agents;
provided, that no obligation to any Obligor of any Lender or any Agent
may be amended, modified or waived without the written approval of
Borrower, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing or anything to the contrary herein or in
any other Loan Document, no provision of Article 7 may be amended in any way
which impacts or affects any Agent in its capacity as an Agent (as opposed to
its capacity as a Lender) without the prior written consent of such Agent.
Except as provided in the preceding three sentences or as expressly provided in
any Loan Document, the Required Lenders may waive, modify, amend or supplement
this Agreement and each of the other Loan Documents.
Section 8.2 Survival of Agreements; Cumulative Nature. Each Obligor's
various representations, warranties, covenants, indemnities and agreements in
the Loan Documents shall survive the execution and delivery of this Agreement
and the other Loan Documents and the performance hereof and thereof, including
the making or granting of the Loans and the delivery of the Notes, and the other
Loan Documents, and shall further survive until all of the Obligations are paid
in full to Agents and Lenders and all of Agents' and Lenders' obligations to
Borrower are terminated, provided that, notwithstanding the foregoing, certain
Obligations of certain Obligors under their respective Guaranties shall survive
or be reinstated as provided in such Guaranties. The representations,
warranties, indemnities, and covenants made by any Obligor in any Loan
Documents, and the rights, powers, and privileges granted to Agents and Lenders
in the Loan Documents, are cumulative.
Section 8.3 Notices. All notices, requests, consents, demands and
other communications required or permitted under any Loan Document shall be in
writing, unless otherwise specifically provided in such Loan Document (provided
that Administrative Agent may give telephonic notices to the other Agents and
Lenders), and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telecopy (with telephonic confirmation of transmission),
by delivery service with proof of delivery, or by registered or certified United
States mail, postage prepaid, to Borrower at the address of Borrower specified
on the signature pages hereto and to each Agent and each Lender at their
addresses specified on the signature pages hereto (unless changed by similar
notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given:
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(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address
provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail, three (3) days
after deposit in the mail, postage prepaid; provided, however, that no
Request for Advance or Rate Election shall become effective until actually
received by Administrative Agent.
Section 8.4 Parties in Interest. All grants, covenants and agreements
contained in the Loan Documents shall bind and inure to the benefit of the
parties thereto and their respective successors and assigns; provided, however,
that no Obligor may assign or transfer any of its rights or delegate any of its
duties or obligations under any Loan Document without the prior written consent
of all Lenders.
Section 8.5 Governing Law. THE LOAN DOCUMENTS SHALL BE DEEMED
CONTRACTS AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF TEXAS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. CHAPTER 15 OF TEXAS REVISED CIVIL STATUTES
ANNOTATED ARTICLE 5069 (WHICH REGULATES CERTAIN REVOLVING CREDIT LOAN ACCOUNTS
AND REVOLVING TRI-PARTY ACCOUNTS) DOES NOT APPLY TO THIS AGREEMENT OR TO THE
NOTES.
Section 8.6 Limitation on Interest. It is the intention of the
parties hereto to conform strictly to applicable usury laws and, anything herein
or any other Loan Document to the contrary notwithstanding, the obligations of
Obligors to a Lender or an Agent under this Agreement and the Loan Documents
shall be subject to the limitation that payments of interest shall not be
required to the extent that receipt thereof would be contrary to provisions of
law applicable to such Lender or Agent limiting rates of interest which may be
charged or collected by such Lender or Agent. Accordingly, if the transactions
contemplated hereby would be usurious under laws applicable to a Lender or Agent
(including the federal and state laws of the United States of America or of any
other jurisdiction whose laws may be mandatorily applicable to such Lender or
Agent notwithstanding anything to the contrary in this Agreement or any other
Loan Document) then, in that event, notwithstanding anything to the contrary in
this Agreement or any other Loan Document, it is agreed as follows:
(a) the provisions of this Section shall govern and control;
(b) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received
under this Agreement, or under any of the aforesaid agreements or otherwise
in connection with this Agreement or any other Loan Document by such Lender
or Agent shall under no circumstances exceed the maximum amount of interest
allowed by applicable law (such maximum lawful interest rate, if any, with
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respect to each Lender and each Agent herein called the "Maximum Lawful
Rate"), and any excess shall be canceled automatically and if theretofore
paid shall be credited to the relevant Obligor by such Lender or Agent (or,
if such consideration shall have been paid in full, such excess refunded to
the relevant Obligor);
(c) all sums paid, or agreed to be paid, to such Lender or Agent for the use,
forbearance and detention of the indebtedness of the relevant Obligor to
such Lender or Agent hereunder or under any other Loan Document shall, to
the extent permitted by laws applicable to such Lender or Agent, as the
case may be, be amortized, prorated, allocated and spread throughout the
full term of such indebtedness until payment in full so that the actual
rate of interest is uniform throughout the full term thereof;
(d) if at any time the interest provided pursuant to any provision of this
Agreement or any other Loan Document, together with any other fees payable
pursuant to this Agreement or any other Loan Document and deemed interest
under laws applicable to such Lender or Agent, exceeds the amount which
would have accrued at the Maximum Lawful Rate, the amount of interest and
any such fees to accrue to such Lender or Agent pursuant to this Agreement
or any other Loan Document shall be limited, notwithstanding anything to
the contrary in this Agreement or any other Loan Document, to that amount
which would have accrued at the Maximum Lawful Rate, but any subsequent
reductions, as applicable, shall not reduce the interest to accrue to such
Lender or Agent pursuant to this Agreement or any other Loan Document below
the Maximum Lawful Rate until the total amount of interest accrued pursuant
to this Agreement or such other Loan Document, as the case may be, and such
fees deemed to be interest equals the amount of interest which would have
accrued to such Lender or Agent if a varying rate of interest per annum
equal to the interest provided pursuant to Section 2.3 or any other
relevant Section hereof (other than this Section) and the Notes, as
applicable, had at all times been in effect, plus the amount of fees which
would have been received but for the effect of this Section; and
(e) if the total amount of interest paid by or accrued with respect to the
Obligations of Borrower, together with any other fees payable pursuant to
this Agreement and the other Loan Documents and deemed interest under laws
applicable to such Lender or Agent pursuant to this Agreement or any other
Loan Document under the foregoing provisions of this Section is less than
the total amount of interest which would have accrued if a varying rate per
annum equal to the interest provided pursuant to Section 2.3 or any other
relevant section hereof (other than this Section), as applicable, had at
all times been in effect and all fees provided for in this Agreement and
the other Loan Documents had been paid, then Borrower severally agrees to
pay to such Lender or Agent an amount equal to the difference between, (i)
the lesser of, (x) the amount of interest and fees which would have accrued
if the Maximum Lawful Rate had at all times been in effect, and (y) the
amount of interest and fees which would have accrued if a varying rate per
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annum equal to the interest provided pursuant to Section 2.3 or such other
relevant section of this Agreement (other than this Section) and the Notes,
as applicable, had at all times been in effect and all fees had been paid,
and (ii) the amount of interest and fees accrued in accordance with the
other provisions of this Agreement and other Loan Documents.
For purposes of Article 5069-1.04 of Vernon's Texas Civil Statues, as
amended, to the extent, if any, applicable to any Lender or Agent, Borrower and
each other Obligor agrees that the Maximum Lawful Rate shall be the "indicated
(weekly) rate ceiling" as defined in said Article, provided that such Lender or
Agent, as applicable, may also rely, to the extent permitted by applicable laws
of the State of Texas and the United States of America, on alternative maximum
rates of interest under other laws applicable to such Lender or Agent from time
to time if greater.
Section 8.7 Termination; Limited Survival. In its sole and absolute
discretion, Borrower may, at any time that no Obligations or other amounts are
owing, elect to terminate this Agreement in a written notice delivered to
Administrative Agent. Upon receipt by Administrative Agent of such a notice, if
no Obligations or other amounts are then owing, this Agreement and all other
Loan Documents shall thereupon be terminated and the parties thereto released
from all prospective obligations hereunder or thereunder. Notwithstanding the
foregoing or anything herein to the contrary, any waivers or admissions made by
any Obligor in any Loan Document, any Obligations under Sections 2.16 through
2.20, any obligations which any Obligor may have to indemnify or compensate any
Agent, or any Lender in connection with matters arising upon or prior to the
termination of this Agreement and any obligations which any Lender may have to
indemnify or compensate any Agent in connection with matters arising upon or
prior to the termination of this Agreement shall survive any termination of this
Agreement or any other Loan Document and the release of Obligors. At the request
and expense of Borrower, Managing Agents shall prepare and execute all necessary
instruments to reflect and effect such termination of the Loan Documents
including, without limitation, the Security Instruments. Managing Agents are
hereby authorized, jointly and severally, to execute all such instruments on
behalf of all Lenders, without the joinder of or further action or consent by
any Lender.
Section 8.8 Assignments; Participations.
(a) Each Lender shall have the right to sell, assign or transfer all or any
part of such Lender's Notes, Loans and Commitments hereunder to one or more
Affiliates, Lenders, financial institutions, pension plans, investment
funds, or similar Persons or to a Federal Reserve Bank; provided, that in
connection with each sale, assignment or transfer (other than to an
Affiliate, a Lender or a Federal Reserve Bank), the applicable Lender will
consider the opinion and recommendation of Borrower, which opinion and
recommendation shall in no way be binding upon such Lender, and each such
sale, assignment, or transfer (other than to an Affiliate, a Lender or a
Federal Reserve Bank) shall be with the consent of Borrower (unless an
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Event of Default has occurred and is continuing), which consent will not be
unreasonably withheld, and with the consent of Administrative Agent, which
consent will not be unreasonably withheld, and the assignee, transferee or
recipient shall have, to the extent of such sale, assignment, or transfer,
the same rights, benefits and obligations as it would if it were such
Lender and a holder of such Notes and Commitments, including, without
limitation, the right to vote on decisions requiring consent or approval of
all Lenders, Majority Lenders or Required Lenders and the obligation to
fund its Loans; provided further, that (1) each Lender in making each such
sale, assignment, or transfer must sell, assign or transfer a pro rata
portion of its Commitments and each Loan (other than a Swing Line Advance
or a Competitive Bid Advance) made or held by such Lender, (2) each such
sale, assignment, or transfer (other than to an Affiliate, a Lender or a
Federal Reserve Bank) shall be in an aggregate principal amount not less
than $10,000,000, (3) each remaining Lender shall at all times maintain
Commitments then outstanding in an aggregate principal amount at least
equal to $10,000,000; (4) no Lender may offer to sell its Notes,
Commitments or Loans or interests therein in violation of any securities
laws; and (5) no such assignments (other than to a Federal Reserve Bank)
shall become effective until the assigning Lender delivers to
Administrative Agent and Borrower copies of all written assignments and
other documents evidencing any such assignment and an Agreement to be Bound
in the form of Exhibit L, providing for the assignee's ratification and
agreement to be bound by the terms of this Agreement and the other Loan
Documents. An assignment fee in the amount of $3,500 for each such
assignment (other than to an Affiliate, a Lender or a Federal Reserve Bank)
will be payable to Administrative Agent by assignor or assignee. Within
five (5) Business Days after its receipt of copies of any assignment and
the other documents relating thereto and the following described Notes,
Borrower shall execute and deliver to Administrative Agent (for delivery to
the relevant assignee) new Notes evidencing such assignee's assigned Loans
and Commitments and if the assignor Lender has retained a portion of its
Loans, replacement Notes in the principal amount of the Loans and
Commitments retained by the assignor Lender (except as provided in the last
sentence of this paragraph (a) such Notes to be in exchange for, but not in
payment of, the Notes held by such Lender). On and after the effective date
of an assignment hereunder, the assignee shall for all purposes be a
Lender, party to this Agreement and any other Loan Document executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party thereto,
and no further consent or action by Borrower, Lenders or any Agent shall be
required to release the transferor Lender, with respect to the Commitments
and the Loans assigned to such assignee and the transferor Lender shall
henceforth be so released.
(b) Each Lender shall have the right to grant participations in all or any part
of such Lender's Notes, Commitments, and Loans hereunder to one or more
pension plans, investment funds, financial institutions or other Persons;
provided, that:
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(1) each Lender granting a participation shall retain the right to vote
hereunder, and no participant shall be entitled to vote hereunder on
decisions requiring consent or approval of Lenders, Majority Lenders
or Required Lenders (except as set forth in (3) below);
(2) in the event any Lender grants a participation hereunder, such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall
remain the holder of any such Notes for all purposes under the Loan
Documents, and each Agent, each Lender and Borrower shall be entitled
to deal with the Lender granting a participation in the same manner as
if no participation had been granted; and
(3) no participant shall ever have any right by reason of its
participation to exercise any of the rights of Lenders hereunder,
except that any Lender may agree with any participant that such Lender
will not, without the consent of such participant (which consent may
not be unreasonably withheld), consent to any amendment or waiver
described in Section 8.1 requiring approval of 100% of the Lenders.
(c) It is understood and agreed that any Lender may provide to assignees and
participants and prospective assignees and participants financial
information and reports and data concerning Borrower's properties and
operations which was provided to such Lender pursuant to this Agreement,
subject to Section 8.9.
(d) Upon the reasonable request of either of the Managing Agents or Borrower,
each Lender will identify those to whom it has assigned or participated any
part of its Notes or Loans, and provide the amounts so assigned or
participated.
Section 8.9 Confidentiality. Each Agent and each Lender agrees that
it (a) will maintain the confidentiality of all non-public information from any
Obligor or any Subsidiary of Borrower obtained pursuant to the terms of this
Agreement or any other Loan Document in accordance with safe and sound banking
practices, and (b) will not use such confidential information for any purpose
other than in connection with this Agreement; provided, however, that this
restriction shall not apply to information which (w) has at the particular time
in question entered the public domain, or been independently developed without
the use or incorporation of any non-public information provided to such Agent or
Lender by any Obligor or any Subsidiary of Borrower by such Agent or such Lender
other than through disclosure by such Agent or such Lender in violation of this
Section, (x) is required to be disclosed by law or by any order, rule,
regulation or legal process (whether valid or invalid) of any court or
Governmental Authority, (y) is furnished to any other Lender or to any purchaser
or prospective purchaser of participations, assignments or other interests in
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any Loan, Note or Commitment that has executed and delivered to Borrower an
agreement containing terms substantially similar to this Section and reasonably
acceptable to Borrower, to keep such information confidential or (z) is
disclosed to such Lender's or Agent's examiners, Affiliates, outside auditors,
counsel and other professional advisors who have a need for such information in
connection with this Agreement and who are advised of the confidential nature of
such information. As used in this Section, the terms "Agent" and "Lender" shall
refer not only to the Persons designated as such in Section 1.1, but also to
each director, Affiliate, officer, agent, attorney, employee and representative
of such Person. Notwithstanding any other provisions of this Agreement, the
terms of this Section shall survive the termination of this Agreement for a
period of three (3) years.
Section 8.10 Severability. If any term or provision of any Loan
Document shall be determined to be illegal or unenforceable in any jurisdiction,
such term or provision shall, as to such jurisdiction, be illegal or
unenforceable, without affecting the remaining provisions in that jurisdiction
or the legality or enforceability of such terms or conditions in any other
jurisdiction.
Section 8.11 Counterparts. This Agreement may be separately executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same Agreement.
Section 8.12 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES. EACH OF THE
BORROWER, AGENTS AND LENDERS HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED
THEREBY OR ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY; (II) IRREVOCABLY
WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES; (III) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR
COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS; AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION.
Section 8.13 Several Obligations. The respective obligations of
Lenders hereunder are several and not joint and no Lender shall be the partner
or agent of any other (except to the extent to which an Agent is authorized to
act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement is not intended to, and shall not be construed so as
to, confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
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Section 8.14 Nonliability of Lenders. The relationship between
Borrower on the one hand and Lenders and Agents on the other hand shall be
solely that of borrower and lender. None of the Agents nor any Lender shall have
any fiduciary responsibilities to Borrower or any of its respective
Subsidiaries. None of the Agents nor any Lender undertakes any responsibility to
Borrower or any of their respective Subsidiaries to review or inform Borrower of
any matter in connection with any phase of Borrower's or such Subsidiary's
business or operations.
Section 8.15 Setoff. In addition to, and without any limitation of,
any rights of the Lenders under applicable law, if Borrower becomes insolvent,
however evidenced, or any Event of Default or Default occurs and the maturity of
the Obligations has been accelerated, any indebtedness from any Lender to
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied toward the
payment of the Obligations owing to such Lender, whether or not the Obligations,
or any part thereof, shall then be due and payable.
Section 8.16 Release of Liens. Upon the date of execution and
delivery of a Guaranty of the type referred to in clause (i) of the definition
of "Guaranty" by a Restricted Subsidiary the capital stock of which has been
pledged (each such date, a "Stock Pledge Release Date"), the Collateral Agent
shall release and discharge, at the cost or expense of Borrower, the Pledge
Agreement covering such Subsidiary's capital stock, all of Lenders' and
Collateral Agent's rights and interests in such Pledge Agreement and all liens,
security interests, pledges and encumbrances created or existing under or
pursuant to such Pledge Agreement.
Section 8.17 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. FOR THE PURPOSE OF ANY
ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR STATE COURTS OF TEXAS,
HOLDINGS HEREBY IRREVOCABLY DESIGNATES BORROWER WITH OFFICES ON THE DATE HEREOF
AT 303 WEST WALL STREET, SUITE 101, MIDLAND, TEXAS 79701 TO RECEIVE FOR AND ON
BEHALF OF HOLDINGS, SERVICES OF PROCESS IN TEXAS. BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
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IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Section 8.18 Renewal, Extension or Rearrangement. All provisions of
this Agreement and any other Loan Document relating to the Notes or the other
Obligations shall apply with equal force and effect to each and all promissory
notes or other agreements or instruments hereafter executed which in whole or in
part represent a renewal, extension, increase or rearrangement of any part of
the original Notes or Obligations.
Section 8.19 Entire Agreement. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
BORROWER:
PIONEER NATURAL RESOURCES
USA, INC.
By: /s/ Curt F. Kamradt
----------------------------
Name: Curt F. Kamradt
Title: Vice President - Treasurer
Address: 303 West Wall, Suite 101
P.O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 1
<PAGE>
LENDERS:
NATIONSBANK OF TEXAS, N.A.,
individually and as Administrative
Agent and as Collateral Agent
By: /s/ Frank K. Stowers
------------------------------
Name: Frank K. Stowers
Title: Vice President
Address: 303 W. Wall
P. O. Box 1599
Midland, Texas 79701
Attention: Mr. Frank K. Stowers
Telephone: (915) 685-2179
Telecopy: (915) 685-2009
with further notice to:
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: Mr. E. Murphy Markham IV
Telephone: (214) 508-1251
Telecopy: (214) 508-1285
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 2
<PAGE>
CIBC INC., individually and as
Documentation Agent
By: /s/ Aleksandra Dymanus
----------------------------
Name: Aleksandra K. Dymanus
Title: Authorized Signatory
Address: 2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Attention:
Telephone: (770) 319-4824
Telecopy: (770) 319-4950
with further notice to:
2 Houston Center
909 Fannin Street, Suite 1200
Houston, Texas 77010
Attention: Mr. Paul Jordan
Telephone: (713) 655-5220
Telecopy: (713) 650-3727
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 3
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, individually
and as Documentation Agent
By: /s/ John Kowalczuk
----------------------------
Name: John Kowalczuk
Title: Vice President
Address: 60 Wall Street, 22nd Floor
New York, New York 10260
Attention: Mr. Philip McNeal
Telephone: (212) 648-7181
Telecopy: (212) 648-5023
with further notice to:
Sandra H. Doherty
500 Christiana Stanton Road
Newark DE 19713-2107
Telephone: (302) 634-8122
Telecopy: (302) 634-1092
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 4
<PAGE>
THE CHASE MANHATTAN BANK,
individually and as Syndication Agent
By: /s/ Lawrence Palumbo, Jr.
------------------------------
Name: Lawrence Palumbo, Jr.
Title: Vice President
Address: 712 Main Street, 5th Floor
P. O. Box 2558
Houston, Texas 77252-8086
Attention: Mr. Robert Mertensoto
Telephone: (713) 216-4147
Telecopy: (713) 216-4117
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 5
<PAGE>
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
individually and as Co-Agent
By: /s/ Ronald E. McKaig
-------------------------
Name: Ronald E. McKaig
Title: Vice President
Address: 3 Allen Center
333 Clay Street, Suite 4550
Houston, TX 77002
Attention: Mr. Ron McKaig
Telephone: (713) 651-4881
Telecopy: (713) 651-4841
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 6
<PAGE>
THE BANK OF NEW YORK, individually
and as Co-Agent
By: /s/ Raymond J. Palmer
----------------------------
Name: Raymond J. Palmer
Title: Vice President
Address: One Wall Street, 19th Floor
New York, New York 10286
Attention: Mr. Ray Palmer
Telephone: (212) 635-7834
Telecopy: (212) 635-7923
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 7
<PAGE>
THE BANK OF NOVA SCOTIA,
individually and as Co-Agent
By: /s/ F.C.H. Ashby
--------------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Address: 600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Mr. Cleve Bushey
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 8
<PAGE>
ROYAL BANK OF CANADA, individually
and as a Co-Agent
By: /s/ Linda M. Stephens
--------------------------
Name: Linda M. Stephens
Title: Manager
Address: Financial Square
32 Old Slip St.
New York, New York
10005-3531
Attention: Loan Administrator
Telephone: (212) 428-6321
Telecopy: (212) 428-2372
with copy to:
Address: Royal Bank of Canada
12450 Greenspoint Drive
Suite 1450
Houston, Texas 77060
Attention: Linda M. Stephens
Telephone: (281) 874-5669
Telecopy: (281) 874-0081
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 9
<PAGE>
UNION BANK OF CALIFORNIA, N.A.,
individually as a Co-Agent
By: /s/ Katie Murray
--------------------------
Name: Katie Murray
Title: Vice President
Address: 500 North Akard, Suite 4200
Dallas, Texas 75201
Attention: Ms. Katie Murray
Telephone: (214) 922-4207
Telecopy: (214) 922-4209
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 10
<PAGE>
WELLS FARGO BANK, N.A.,
individually as a Co-Agent
By: /s/ Lester J.N. Keliher
--------------------------
Name: Lester J.N. Keliher
Title: Vice President
Address: 1445 Ross Avenue, Suite 400
LB 224
Dallas, Texas 75202
Attention: Mr. Lester Keliher
Telephone: (214) 777-4025
Telecopy: (214) 777-4044
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 11
<PAGE>
THE FUJI BANK, LIMITED-HOUSTON
AGENCY, individually as a Co-Agent
By: /s/ Yutaka Taniuchi
--------------------------
Name: Yutaka Taniuchi
Title: Senior Vice President
Address: 1221 McKinney Street
Suite 4100
Houston, Texas 77002
Attention: Mr. Tommy Watts
Telephone: (713) 650-7868
Telecopy: (713) 759-0717
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 12
<PAGE>
DEN NORSKE BANK ASA, individually
and as Lead Manager
By: /s/ J. Morten Kreutz
--------------------------
Name: J. Morten Kreutz
Title: Vice President
By: /s/ Charles E. Hall
--------------------------
Name: Charles E. Hall
Title: Senior Vice President
Address: 333 Clay Street, Suite 4890
Houston, Texas 77002
Attention: Mr. J. Morten Kreutz
Telephone: (713) 844-9255
Telecopy: (713) 757-1167
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 13
<PAGE>
BANQUE PARIBAS, individually and
as Lead Manager
By: /s/ Barton D. Schouest
--------------------------
Name: Barton D. Schouest
Title: Group Vice President
By: /s/ Brian Malone
--------------------------
Name: Brian Malone
Title: Vice President
Address: 1200 Smith Street
Two Allen Center
Suite 3100
Houston, Texas 77002
Attention: Mr. David Dodd
Telephone: (713) 659-4811
Telecopy: (713) 659-6915
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 14
<PAGE>
FIRST UNION NATIONAL BANK,
individually and as a Lead Manager
By: /s/ Michael J. Kolosowsky
-----------------------------
Name: Michael J. Kolosowsky
Title: Vice President
Address: 1001 Fannin Street
Suite 2255
Houston, Texas 77002
Attention: Mr. Paul N. Riddle
Telephone: (713) 650-3716
Telecopy: (713) 650-6354
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 15
<PAGE>
BANKERS TRUST COMPANY, as a Lender
By: /s/ Marcus M. Tarkington
------------------------------
Name: Marcus M. Tarkington
Title: Vice President
Address: 130 Liberty Street
M.S. 2344
New York, New York 10006
Attention: Marcus M. Tarkington
Telephone: (212) 250-7684
Telecopy: (212) 250-8693
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 16
<PAGE>
CAISSE NATIONALE DE CREDIT
AGRICOLE, as a Lender
By: /s/ Katherine L. Abbott
-----------------------------
Name: Katherine L. Abbott
Title: First Vice President
Address: 55 East Monroe
Chicago, Illinois 60603
Attention: Ms. Rosemary Brown
Telephone: (312) 917-7420
Telecopy: (312) 372-4421
with further notice to:
Mr. Kevin Costello
600 Travis, Suite 2340
Houston, Texas 77002
Telephone: (713) 223-7003
Telecopy: (713) 223-7029
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 17
<PAGE>
NATEXIS BANQUE, as a Lender
BFCE
By: /s/ Mark A. Harrington
----------------------------
Name: Mark A. Harrington
Title: Vice President and
Regional Manager
By: /s/ Eric Ditges
----------------------------
Name: Eric Ditges
Title: Assistant Treasurer
Address: 333 Clay Street, Suite 4340
Houston, Texas 77002
Attention: Mr. Eric Ditges
Telephone: (713) 759-9401
Telecopy: (713) 759-9908
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 18
<PAGE>
THE SUMITOMO BANK, LIMITED, as
a Lender
By: /s/ Harumitsu Seki
--------------------------
Name: Harumitsu Seki
Title: General Manager
Administrative matters:
Address: 277 Park Avenue, 6th Floor
New York, New York 10172
Attention: Thierry LeJouan
Telephone: (212) 224-4138
Telecopy: (212) 224-5197
Credit matters:
Mr. Bill McKown
700 Louisiana, Suite 1750
Houston, Texas 77002
Telephone: (713) 238-8217
Telecopy: (713) 759-0020
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 19
<PAGE>
TORONTO DOMINION (TEXAS), INC.
as a Lender
By: /s/ Darlene Riedel
--------------------------
Name: Darlene Riedel
Title: Vice President
Address: 909 Fannin Street, Ste. 1700
Houston, Texas 77010
Attention: Darlene Riedel
Telephone: (713) 653-8250
Telecopy: (713) 951-9921
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 20
<PAGE>
THE TOYO TRUST & BANKING CO.,
LTD., as a Lender
By: /s/ T. Mikumo
--------------------------
Name: T. Mikumo
Title: Vice President
Address: 666 5th Avenue, 33rd Floor
New York, New York 10103
Attention: Ms. Sharon Bonelli
Telephone: (212) 307-3410
Telecopy: (212) 307-3498
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 21
<PAGE>
WACHOVIA BANK, N.A., as a Lender
By: /s/ Paige D. Mesaros
--------------------------
Name: Paige D. Mesaros
Title: Vice President
Address: 191 Peachtree Street
Atlanta, Georgia 30303
Attention: Ms. Paige Mesaros
Telephone: (404) 332-1322
Telecopy: (404) 332-6898
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 22
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH,as a Lender
By: /s/ Masayoshi Komaki
--------------------------
Name: Masayoshi Komaki
Title: Vice President
Address: One World Trade Center
48th Floor
New York, New York 10048
Attention: Mr. Masayoshi Komaki
Telephone: (212) 432-6627
Telecopy: (212) 912-1879
Further notice to:
DKB-Houston LPO
1100 Louisiana, Suite 4940
Houston, Texas 77002
Attention: Mr. Warren Ross
Telephone: (713) 654-5055
Telecopy: (713) 654-1667
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 23
<PAGE>
THE SANWA BANK, LIMITED, as a Lender
By: /s/ Toru Sakamuro
--------------------------
Name: Toru Sakamuro
Title: Vice President
Address: 4100W Texas Commerce Tower
2200 Ross Avenue
Dallas, Texas 75201
Attention: Mr. Matthew Patrick
Telephone: (214) 665-0242
Telecopy: (214) 953-3963
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 24
<PAGE>
KREDIETBANK N.V., as a Lender
By: /s/ Robert Snauffer
--------------------------
Name: Robert Snauffer
Title: Vice President
By: /s/ Tod R. Angus
--------------------------
Name: Tod R. Angus
Title: Vice President
Address: 125 West 55th Street
New York, NY 10019
Attention: Robert E. Snauffer
Vice President
Telephone: (212) 541-0700
Telecopy: (212) 956-5580
with a copy to:
Kredietbank N.V., Atlanta
Representative Office
Two Midtown Plaza
1349 W. Peachtree Street
Atlanta, Georgia 30309
Attention: Mr. Felip Ferrante
Telephone: (404) 876-2556
Telecopy: (404) 876-3212
[SIGNATURE PAGE TO 364 DAY FACILITY]
S - 25
<PAGE>
Exhibit A-1
[Form of]
Loan Note - 364 Day Facility
$ , 199
----------------- ---------- --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation, with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of
and No/100 Dollars ($ ), or, if greater or less, the aggregate unpaid
principal amount of each Loan made under this Note by Lender to Borrower
pursuant to the terms of the Credit Agreement (as defined herein), together with
interest on the unpaid principal balance thereof as hereinafter set forth, both
principal and interest payable as herein provided in lawful money of the United
States of America at the principal banking offices of the Administrative Agent
under the Credit Agreement, 901 Main Street, Dallas, Texas 75202, or at such
other place as from time to time may be designated by the holder of this Note,
with the concurrence of Borrower and Administrative Agent. Subject to the terms
and conditions of the Credit Agreement and hereof, Borrower may borrow, repay
and reborrow hereunder.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Loan Note" as defined therein, and (b) is subject to the terms and provisions
of the Credit Agreement, which contains provisions for payment and prepayment
hereunder and acceleration of the maturity hereof upon the happening of certain
events. Payments on this Note shall be made and applied as provided herein and
in the Credit Agreement. Reference is hereby made to the Credit Agreement for a
description of certain rights, limitations of rights, obligations and duties of
the parties hereto and for the meanings assigned to terms used and not otherwise
defined herein.
Exhibit A-1 - 1
<PAGE>
Interest accrued on each Loan evidenced by this Note shall be payable,
without duplication: (a) on the Maturity Date; (b) with respect to any Base Rate
Portion of the Loans evidenced by this Note, on the third Business Day of each
Fiscal Quarter occurring after the date of the initial borrowing of a Base Rate
Portion hereunder; (c) with respect to any Eurodollar Portion of the Loans
evidenced by this Note, on the last day of each applicable Interest Period (and,
if such Interest Period shall exceed 90 days, on the 90th day of such Interest
Period and every 90 days thereafter until the end of such Interest Period); (d)
with respect to any Base Rate Portion converted into a Eurodollar Portion of the
Loans evidenced by this Note pursuant to a Rate Election on a day when interest
would not otherwise have been payable pursuant to clause (b), on the third
Business Day of each Fiscal Quarter occurring after the date of such conversion;
and (e) on any portion of the Loans evidenced by this Note, the Maturity Date of
which is accelerated pursuant to Section 6.1 of the Credit Agreement, on the
date to which the Maturity Date of such portion has been accelerated. Interest
accrued on the Loans evidenced by this Note or other monetary Obligations
arising under this Note, the Credit Agreement or any other Loan Document after
the date such amount is due and payable (whether on the Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
The principal amount of this Note, together with all interest accrued
hereon and unpaid, shall be due and payable in full on the Maturity Date.
The Base Rate Portion of the Loans evidenced by this Note (exclusive of
any past due principal or interest) from time to time outstanding shall bear
interest on each day outstanding at the Base Rate, plus the applicable Base Rate
Margin. Each Eurodollar Portion of the Loans evidenced by this Note (exclusive
of any past due principal or interest) shall bear interest on each day during
the related Interest Period at the applicable Eurodollar Rate, plus the
applicable Eurodollar Margin. All past due principal of the Loans evidenced by
this Note or other Obligations arising under the Credit Agreement or any other
Loan Document (whether payable on the Maturity Date or otherwise) shall bear
interest on each day outstanding after its due date at the applicable Default
Rate in effect on such day.
Notwithstanding the other provisions of this Note or the Credit
Agreement, in no event shall the interest payable hereon, whether before or
after maturity, exceed the Maximum Lawful Rate and this Note is expressly made
subject to the provisions of the Credit Agreement which more fully set out the
limitations on how interest accrues hereon. In the event applicable law provides
for a ceiling under Texas Revised Civil Statutes Annotated article 5069-1.04,
that ceiling shall be the indicated rate ceiling. The term "applicable law" as
used in this Note shall mean the laws of the State of Texas or the laws of the
United States, whichever laws allow the greater interest as such laws now exist
or may be enacted, changed or amended or come into effect in the future.
Exhibit A-1 - 2
<PAGE>
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to Loans
made pursuant to the Credit Agreement subsequent to each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND LENDER WITH
RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES
USA, INC.
By:
-----------------------------
Name:
Title:
Exhibit A-1 - 3
<PAGE>
Exhibit A-2
[Form of]
Swing Line Note - 364 Day Facility
$ , 199
-------------------- ------------ --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of
and No/100 Dollars ($ ), or, if less, the aggregate unpaid principal
amount of the Swing Line Advances made under this Note by Lender to Borrower
pursuant to the terms of the Credit Agreement (as defined herein), together with
interest on the unpaid principal balance thereof as hereinafter set forth, both
principal and interest payable as herein provided in lawful money of the United
States of America at the principal banking offices of Administrative Agent under
the Credit Agreement, 901 Main Street, Dallas, Texas 75202, or at such other
place as from time to time may be designated by the holder of this Note, with
the concurrence of Borrower and Administrative Agent.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Swing Line Note" as defined therein, and (b) is subject to the terms and
provisions of the Credit Agreement, which contains provisions for payment and
prepayment hereunder and acceleration of the maturity hereof upon the happening
of certain events. Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date. Interest accrued on the
Swing Line Advances evidenced by this Note shall be payable as provided in the
Credit Agreement.
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after maturity,
exceed the Maximum Lawful Rate and this Note is expressly made subject to the
provisions of the Credit Agreement which more fully set out the limitations on
how interest accrues hereon. In the event
Exhibit A-2 - 1
<PAGE>
applicable law provides for a ceiling under Texas Revised Civil Statutes
Annotated article 5069-1.04, that ceiling shall be the indicated rate ceiling.
The term "applicable law" as used in this Note shall mean the laws of the State
of Texas or the laws of the United States, whichever laws allow the greater
interest as such laws now exist or may be enacted, changed or amended or come
into effect in the future.
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to Loans
made pursuant to the Credit Agreement subsequent to each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
Exhibit A-2 - 2
<PAGE>
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES
USA, INC.
By:
----------------------------
Name:
Title:
Exhibit A-2 - 3
<PAGE>
Exhibit A-3
[Form of]
Competitive Bid Note - 364 Day Facility
$300,000,000 , 199
---------- --
FOR VALUE RECEIVED, the undersigned, PIONEER NATURAL RESOURCES USA,
INC., a Delaware corporation, with offices at 303 W. Wall, Suite 101, Midland,
Texas (herein called "Borrower"), hereby promises to pay to the order of
(herein called "Lender"), the principal sum of THREE
HUNDRED MILLION AND No/100 DOLLARS ($300,000,000), or, if less, the aggregate
unpaid principal amount of all Competitive Bid Advances shown on the schedule
attached hereto (and any continuation thereof), if so shown, made by the Lender
to Borrower, together with interest on the unpaid principal balance thereof as
hereinafter set forth, both principal and interest payable as herein provided in
lawful money of the United States of America at the principal banking offices of
Administrative Agent under the Credit Agreement (as defined herein), 901 Main
Street, Dallas, Texas 75202, or at such other place as from time to time may be
designated by the holder of this Note, with the concurrence of Borrower and
Administrative Agent.
This Note (a) is issued and delivered under that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), and is a
"Competitive Bid Note" as defined therein, and (b) is subject to the terms and
provisions of the Credit Agreement, which contains provisions for payment and
prepayment hereunder and acceleration of the maturity hereof upon the happening
of certain events. Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not otherwise defined herein.
The unpaid principal amount of this Note, together with all interest
accrued hereon and unpaid, shall be due and payable in full as provided in the
Credit Agreement and not later than the Maturity Date.
Interest accrued on the Competitive Bid Advances evidenced by this Note
shall be payable as provided in the Credit Agreement.
Notwithstanding other provisions of this Note or the Credit Agreement,
in no event shall the interest payable hereon, whether before or after maturity,
exceed the Maximum
Exhibit A-3 - 1
<PAGE>
Lawful Rate and this Note is expressly made subject to the provisions of the
Credit Agreement which more fully set out the limitations on how interest
accrues hereon. In the event applicable law provides for a ceiling under Texas
Revised Civil Statutes Annotated article 5069-1.04, that ceiling shall be the
indicated rate ceiling. The term "applicable law" as used in this Note shall
mean the laws of the State of Texas or the laws of the United States, whichever
laws allow the greater interest as such laws now exist or may be enacted,
changed or amended or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
a Default, or if all or any part of the indebtedness represented hereby is
proved, established or collected in any court or in any bankruptcy,
receivership, debtor relief, probate or other court proceedings, the undersigned
Borrower and all endorsers, sureties and guarantors of this Note jointly and
severally agree to pay reasonable attorneys' fees and collection costs to the
holder hereof in addition to the principal and interest payable hereunder.
The undersigned Borrower and all endorsers, sureties and guarantors of
this Note hereby severally waive demand, presentment, notice of demand and of
dishonor and nonpayment of this Note, protest, notice of protest, notice of
intention to accelerate the maturity of this Note, declaration or notice of
acceleration of the maturity of this Note, diligence in collecting, the bringing
of any suit against any party and any notice of or defense on account of any
extensions, renewals, partial payments or changes in any manner of or in this
Note or in any of its terms, provisions and covenants, or any releases or
substitutions of any security, or any delay, indulgence or other act of any
trustee or any holder hereof, whether before or after maturity.
It is contemplated that by reason of prepayment hereon there may be
times when no indebtedness is owing hereunder; notwithstanding such occurrences,
this Note shall remain valid and shall be in full force and effect as to
Competitive Bid Advances made pursuant to the Credit Agreement subsequent to
each occurrence.
Except as permitted by Section 8.8 of the Credit Agreement, this Note
may not be assigned by Lender to any other Person.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE UNDERSIGNED BORROWER AND
LENDER WITH RESPECT HERETO SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE
SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
PIONEER NATURAL RESOURCES
USA, INC.
By:
Name:
Title:
Exhibit A-3 - 2
<PAGE>
Exhibit B-1
[Note: Language in brackets will not be included in every Guaranty to the extent
that, at the time of execution and delivery of the Guaranty, such execution and
delivery would result in adverse tax consequences under ss.956 or substantial
stamp tax or similar taxes, are prohibited pursuant to contractual restrictions
or are prohibited as a matter of corporate law.]
[Form of]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of , 199 , made by
[(A.C.N. )], a ("Guarantor"),
- ---------------------------- ---------- --------------
in favor of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans or
issuing of the initial Letters of Credit under the Credit Agreements, Guarantor
is required to execute and deliver this Guaranty; and
Exhibit B-1 - 1
<PAGE>
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Guarantor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
Exhibit B-1 - 2
<PAGE>
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Primary Credit Agreement" is defined in the first recital.
"364 Day Credit Agreement" is defined in the second recital.
SECTION 1.2 Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Primary
Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees
(i) the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise,
of all Obligations of Borrower now or hereafter existing under the
Credit Agreements, the Notes, the LC Applications and each other Loan
Document to which Borrower is or may become a party, whether for
principal, interest, fees, expenses or otherwise;
(ii) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future rate swap, rate cap, rate floor, rate collar, currency exchange
transaction, forward rate agreement, or other exchange or rate
protection agreements or any option with respect to any such
transaction now existing or hereafter entered into between Borrower or
any of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement");
Exhibit B-1 - 3
<PAGE>
(iii) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future crude oil, natural gas or other hydrocarbons swap agreements,
crude oil, natural gas or other hydrocarbons cap, crude oil, natural
gas or other hydrocarbons floor, crude oil, natural gas or other
hydrocarbons collar, crude oil, natural gas or other hydrocarbons
exchange transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil, natural gas or
other hydrocarbons protection agreements or any option with respect to
any such transaction now existing or hereafter entered into between
Borrower or any of its Subsidiaries and one or more of the Lenders or
their Affiliates; and
(iv) all renewals, rearrangements, increases, extensions for any period,
substitutions, modification, amendments or supplements in whole or in
part of any of the above loan documents or obligations,
(including all such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and (b) indemnifies
and holds harmless strictly in accordance with the terms of the Credit
Agreements each Lender Party and each holder of a Note from Borrower, an LC
Application or any interest in an LC Obligation for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by such
Lender Party or such holder, as the case may be, in enforcing any rights under
this Guaranty; provided, however, that Guarantor shall only be liable under this
Guaranty for the maximum amount of such liability that can be hereby incurred
without rendering this Guaranty, as it relates to Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and Guarantor specifically agrees that it shall not be
necessary or required that any Lender Party or any holder of any Note exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
Borrower or any other Obligor (or any other Person) before or as a condition to
the obligations of Guarantor hereunder. All payments hereunder are to be made in
the currency in which they are due under the Credit Agreements.
SECTION 2.2 Acceleration of Guaranty. Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower, Parent or Guarantor, or the
inability or failure of Borrower, Parent or Guarantor to pay debts as they
become due, or an assignment by Borrower, Parent or Guarantor for the benefit of
Exhibit B-1 - 4
<PAGE>
creditors, or the commencement of any case or proceeding in respect of Borrower,
Parent or Guarantor under any bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Obligations of Borrower and
Parent may not then be due and payable, Guarantor will pay to the Lenders
forthwith the full amount which would be payable hereunder by Guarantor if all
such Obligations were then due and payable.
SECTION 2.3 Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of
Borrower and Parent have been paid in full, all obligations of Guarantor
hereunder shall have been paid in full and all Commitments shall have
terminated. Guarantor guarantees that the Obligations of Borrower and Parent
will be paid strictly in accordance with the terms of the Credit Agreements and
each other Loan Document under which they arise, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Lender Party or any holder of any Note with
respect thereto. The liability of Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
(a) (i) any lack of validity, legality or enforceability of the Credit
Agreements, any Note, any LC Application or any other Loan Document or any
portion of any thereof or (ii) the Credit Agreements, any Note, any LC
Application or any other Loan Document or any portion of any thereof being
void or voidable;
(b) the failure of any Lender Party or any holder of any Note, any LC
Application, Letter of Credit or any interest therein
(i) to assert any claim or demand or to enforce any right or remedy
against Borrower, any other Obligor or any other Person (including any
other guarantor) under the provisions of the Credit Agreements, any
Note, any LC Application, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other guarantor of, or
collateral securing, any Obligations of Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations of Borrower or any other Obligor, or any
other extension, compromise or renewal of any Obligation of Borrower or any
other Obligor;
(d) any reduction, limitation, impairment or termination of any Obligations of
Borrower or any other Obligor for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and Guarantor
Exhibit B-1 - 5
<PAGE>
hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Obligations of Borrower, any other Obligor or otherwise;
(e) any amendment to, extensions of, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of the Credit
Agreements, any Note, any LC Application, any Letter of Credit or any other
Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party or
any holder of any Note, any LC Application, any Letter of Credit or
interest therein securing any of the Obligations of Borrower or any other
Obligor; or
(g) any other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, Borrower, any other Obligor, any
surety or any guarantor.
SECTION 2.4 Reinstatement. Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations guaranteed hereby is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, any LC Application or any interest in an LC Obligation, upon the
insolvency, bankruptcy or reorganization of Borrower, or any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5 Waiver. Guarantor hereby waives promptness, diligence,
presentment, notice of acceptance and any other notice with respect to any of
the Obligations of Borrower or any other Obligor and this Guaranty and any
requirement that any Agent, any other Lender Party or any holder of any Note,
any LC Application, any Letter of Credit or any interest therein protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against Borrower, any other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Obligations of Borrower or any other Obligor, as the
case may be.
SECTION 2.6 Waiver of Subrogation. Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Obligor that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in any
Exhibit B-1 - 6
<PAGE>
claim or remedy of the Lender Parties against Borrower or any other Obligor or
any collateral which the Collateral Agent now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from Borrower or any other
Obligor, directly or indirectly, in cash or other property or by set-off or in
any manner, payment or security on account of such claim or other rights. If any
amount shall be paid to Guarantor in violation of the preceding sentence and the
Obligations shall not have been paid in cash in full and the Commitments have
not been terminated, such amount shall be deemed to have been paid to Guarantor
for the benefit of, and held in trust for, the Lender Parties, and shall
forthwith be paid to the Lender Parties to be credited and applied upon the
Obligations, whether matured or unmatured; otherwise it shall be returned to
remitter. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreements
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION 2.7 Successors, Transferees and Assigns; Transfers of Notes.
This Guaranty shall:
(a) be binding upon Guarantor, and its successors, transferees and assigns
(provided, however, that Guarantor may not assign any of its obligations
hereunder without the prior written consent of all Lenders); and
(b) inure to the benefit of and be enforceable by each Agent and each other
Lender Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note, Loan, LC
Application, Letter of Credit or interest therein held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 8.8 of the Credit Agreements.
SECTION 2.8 Taxes. All payments by the undersigned hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp, or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made hereunder is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then, subject to the provisions of Section 2.9, the undersigned
will:
Exhibit B-1 - 7
<PAGE>
(a) pay directly to the relevant authority the full amount required to be so
withheld or deducted;
(b) promptly forward to Administrative Agent an official receipt or other
documentation satisfactory to Administrative Agent evidencing such payment
to such authority; and
(c) pay to Administrative Agent for the account of the applicable Lender(s)
such additional amount(s) as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender
would have received had no such withholding or deduction been required and
the undersigned hereby acknowledges that it is not entitled to and will not
seek recovery or restitution of any amount due to any of the Lenders or
Agents and paid by it pursuant to this clause (c) or pursuant to the next
sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, the undersigned will
promptly pay such additional amounts to the Administrative Agent for the account
of such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.9.
The undersigned shall pay all stamp, transaction, registration and
similar taxes (including financial institutions duties, debit taxes or other
taxes payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if the undersigned fails
to pay any such charges or taxes after reasonable notice from any such Lender or
Agent, fines and penalties) which may be payable or determined to be payable in
relation to the execution, delivery, performance or enforcement of this Guaranty
or any Loan Document or any other transaction contemplated by any Loan Document
to which the undersigned is a party. The undersigned hereby indemnifies each
Lender and Agent against any liability resulting from delay or omission to pay
such charges or taxes except to the extent the liability results from failure by
the relevant Lender or Agent to pay any such tax after having been delivered
funds to do so by the undersigned or to the extent such liability is for fines
and penalties resulting from such Lender's or Agent's failure to provide
reasonable notice to the undersigned as provided herein.
If the undersigned fails to pay any Taxes or Stamp Taxes when due to
the appropriate taxing authority or fails to remit to Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the undersigned shall
Exhibit B-1 - 8
<PAGE>
indemnify Lenders for any Taxes, interest or penalties that may become payable
by any Lender as a result of any such failure, subject to the provisions of
Section 2.9.
The undersigned waives any statutory right to recover from any Agent or
any Lender any amount due to any such Agent or Lender and paid by the
undersigned under this Section.
SECTION 2.9 Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Section 2.8 and the
undersigned's obligations with respect thereto, shall be limited and qualified
by and subject to the following:
(a) the undersigned's obligation to pay, satisfy or recognize such claim shall
be limited to costs or losses incurred within one (1) year immediately
prior to any demand or request therefor upon the undersigned;
(b) each Lender's demand for reimbursement, payment or indemnity must be
limited to that which is being generally applied at the time by such Lender
for comparable guarantors and guaranties subject to similar provisions;
(c) each Lender which asserts its rights with respect thereto or which is
seeking or imposing such reimbursement, payment or indemnity shall provide
evidence regarding the basis of such claim and the calculation and
application thereof in reasonable detail and, in determining such amount,
each Lender may use reasonable methods of attribution and averaging; and
(d) each Lender which is seeking payment, indemnity or reimbursement pursuant
to Section 2.8 shall, if so requested by the undersigned use reasonable
efforts (subject to the overall policy considerations of such Lender) to
designate a different lending office hereunder if to do so will avoid the
need for, or reduce the amount of, any such payment, indemnity or
reimbursement; provided that, Lender would, in its sole but reasonable
determination, suffer no material economic, legal or regulatory
disadvantage or burden.
[SECTION 2.10 Judgment. Guarantor hereby agrees that:
(a) If, for the purposes of obtaining judgment in any court, it is necessary to
convert a sum due hereunder in United States Dollars into another currency,
Guarantor agrees, to the fullest extent permitted by law, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase United States Dollars
with such other currency on the Business Day preceding that on which final
judgment is given.
Exhibit B-1 - 9
<PAGE>
(b) The obligation of Guarantor in respect of any sum due from it to any Lender
Party or any holder of a Note hereunder shall, notwithstanding any judgment
in a currency other than United States Dollars, be discharged only to the
extent that on the Business Day following receipt by such Lender Party or
such holder, as the case may be, of any sum adjudged to be so due in such
other currency such Lender Party or such holder, as the case may be, may,
in accordance with normal banking procedures, purchase United States
Dollars with such other currency; in the event that the United States
Dollars so purchased are less than the sum originally due to such Lender
Party in United States Dollars, Guarantor, as a separate obligation and
notwithstanding any such judgment, hereby indemnifies and holds harmless
such Lender Party and such holder against such loss, and if the United
States Dollars so purchased exceed the sum originally due to such Lender
Party or such holder in United States Dollars, such Lender Party or such
holder, as the case may be, shall remit to Guarantor such excess.]
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties. Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1 Organization, Existence and Good Standing. Guarantor is
duly organized or incorporated, validly existing and in good standing under the
laws of its jurisdiction of organization or incorporation, having all corporate
or partnership powers required to enter into and carry out the transactions
contemplated hereby. Guarantor is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United States
wherein the character of the properties owned or held by it or the nature of the
business transacted by it makes such qualification necessary, except for any
lack of qualification, good standing or authorization that is not reasonably
expected to result in a Material Adverse Effect. Guarantor has taken all actions
customarily taken in order to enter, for the purpose of conducting business or
owning property, each jurisdiction outside the United States wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such actions desirable, except any failure to take such
action that is not reasonably expected to result in a Material Adverse Effect.
SECTION 3.1.2 Authorization. Guarantor has duly taken all corporate,
partnership or shareholder action necessary to authorize the execution and
delivery by it of this Guaranty and to authorize the consummation of the
transactions contemplated hereby and the performance of its obligations
hereunder.
SECTION 3.1.3 No Conflicts or Consents. The execution and delivery by
Guarantor of this Guaranty, the performance by it of its obligations hereunder,
and the consummation of the transactions contemplated by the various Loan
Exhibit B-1 - 10
<PAGE>
Documents, do not and will not (i) conflict with any provision of the articles
or certificate of incorporation, bylaws, charter, or partnership agreement or
certificate of such Guarantor, or (ii) except as to matters that could not
reasonably be expected to result in a Material Adverse Effect, result in the
acceleration of any Debt owed by such Guarantor, or conflict with any law,
statute, rule, regulation, or agreement, judgment, license, order or permit
applicable to or binding upon such Guarantor, or require the consent, approval,
authorization or order of, or notice to or filing with, any court or
Governmental Authority or third party, or result in or require the creation of
any Lien upon any material assets or properties of such Guarantor, except as
permitted in the Loan Documents.
SECTION 3.1.4 Enforceable Obligations. This Guaranty is the legal,
valid and binding obligation of Guarantor, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors'
rights and by general principles of equity.
ARTICLE IV
COVENANTS
SECTION 4.1 Covenants. Guarantor covenants and agrees that, so long
as any portion of the Obligations of Borrower shall remain unpaid or any Lender
shall have any outstanding Commitment, Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform or comply with the
obligations of a Restricted Subsidiary of Borrower set forth in Sections 5.1 and
5.2 of the Credit Agreements, subject to any limitations on performance or
compliance contained in such sections, including, without limitation, the
limitation, when applicable, that the failure to perform or comply could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreements and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 5.2 Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this Guaranty
shall be binding upon Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and each
holder of a Note, an LC Application, or an interest in an LC Obligation and
their respective successors, transferees and assigns (to the full extent
provided pursuant to Section 2.7); provided, however, that Guarantor may not
assign any of its obligations hereunder without the prior written consent of all
Lenders.
Exhibit B-1 - 11
<PAGE>
SECTION 5.3 Amendments. No amendment to or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 5.4 Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Guarantor at the
address of Guarantor specified on the signature pages hereto and to each Agent
and each Lender at their addresses specified on the signature pages to the
Credit Agreements (unless changed by similar notice in writing given by the
particular Person whose address is to be changed). Any such notice or
communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery at the address provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail, three days after
deposit in the mail, postage prepaid.
SECTION 5.5 No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 5.6 Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.7 Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any
Exhibit B-1 - 12
<PAGE>
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 5.8 Governing Law, Entire Agreement. THIS GUARANTY SHALL BE
DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 5.9 Waiver of Jury Trial. EACH OF GUARANTOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH, BEFORE
OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS GUARANTY, THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 5.10 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
Exhibit B-1 - 13
<PAGE>
OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR
STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER
WITH OFFICES ON THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND,
TEXAS 79701 TO RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS
IN TEXAS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit B-1 - 14
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written but effective as of the Effective Date.
[Name of Guarantor]
By
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit B-1 - 15
<PAGE>
Exhibit B-2
[Form of]
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of August 7, 1997, made by
PIONEER NATURAL RESOURCES COMPANY, a Delaware corporation ("Guarantor"), in
favor of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, as a condition precedent to the making of the initial Loans or
issuing of the initial Letters of Credit under the Credit Agreements, Guarantor
is required to execute and deliver this Guaranty; and
WHEREAS, Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
Exhibit B-2 - 1
<PAGE>
WHEREAS, it is in the best interests of Guarantor to execute this
Guaranty inasmuch as Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Guarantor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
Exhibit B-2 - 2
<PAGE>
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Primary Credit Agreement" is defined in the first recital.
"364 Day Credit Agreement" is defined in the second recital.
SECTION 1.2 Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Primary
Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. Guarantor hereby absolutely, unconditionally
and irrevocably
(a) guarantees
(i) the full and punctual payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise,
of all Obligations of Borrower now or hereafter existing under the
Credit Agreements, the Notes, the LC Applications and each other Loan
Document to which Borrower is or may become a party, whether for
principal, interest, fees, expenses or otherwise;
(ii) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future rate swap, rate cap, rate floor, rate collar, currency exchange
transaction, forward rate agreement, or other exchange or rate
protection agreements or any option with respect to any such
transaction now existing or hereafter entered into between Borrower or
any of its Subsidiaries and one or more of the Lenders or their
Affiliates ("interest rate swap agreement");
Exhibit B-2 - 3
<PAGE>
(iii) the payment and performance of any and all present or future
obligations of Borrower according to the terms of any present or
future crude oil, natural gas or other hydrocarbons swap agreements,
crude oil, natural gas or other hydrocarbons cap, crude oil, natural
gas or other hydrocarbons floor, crude oil, natural gas or other
hydrocarbons collar, crude oil, natural gas or other hydrocarbons
exchange transaction, forward crude oil, natural gas or other
hydrocarbons agreement, or other exchange or crude oil, natural gas or
other hydrocarbons protection agreements or any option with respect to
any such transaction now existing or hereafter entered into between
Borrower or any of its Subsidiaries and one or more of the Lenders or
their Affiliates; and
(iv) all renewals, rearrangements, increases, extensions for any period,
substitutions, modification, amendments or supplements in whole or in
part of any of the above loan documents or obligations,
(including all such amounts which would become due but for the operation of the
automatic stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of the United
States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and (b) indemnifies
and holds harmless strictly in accordance with the terms of the Credit
Agreements each Lender Party and each holder of a Note from Borrower, an LC
Application or any interest in an LC Obligation for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by such
Lender Party or such holder, as the case may be, in enforcing any rights under
this Guaranty; provided, however, that Guarantor shall only be liable under this
Guaranty for the maximum amount of such liability that can be hereby incurred
without rendering this Guaranty, as it relates to Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and Guarantor specifically agrees that it shall not be
necessary or required that any Lender Party or any holder of any Note exercise
any right, assert any claim or demand or enforce any remedy whatsoever against
Borrower or any other Obligor (or any other Person) before or as a condition to
the obligations of Guarantor hereunder. All payments hereunder are to be made in
the currency in which they are due under the Credit Agreements.
SECTION 2.2 Acceleration of Guaranty. Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower or Guarantor, or the
inability or failure of Borrower or Guarantor to pay debts as they become due,
or an assignment by Borrower or Guarantor for the benefit of creditors, or the
commencement of any case or proceeding in respect of Borrower or Guarantor under
any bankruptcy, insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of Borrower may not then be due and payable,
Exhibit B-2 - 4
<PAGE>
Guarantor will pay to the Lenders forthwith the full amount which would be
payable hereunder by Guarantor if all such Obligations were then due and
payable.
SECTION 2.3 Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of
Borrower have been paid in full, all obligations of Guarantor hereunder shall
have been paid in full and all Commitments shall have terminated. Guarantor
guarantees that the Obligations of Borrower will be paid strictly in accordance
with the terms of the Credit Agreements and each other Loan Document under which
they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender Party or any holder of any Note with respect thereto. The liability of
Guarantor under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
(a) (i) any lack of validity, legality or enforceability of the Credit
Agreements, any Note, any LC Application or any other Loan Document or any
portion of any thereof or (ii) the Credit Agreements, any Note, any LC
Application or any other Loan Document or any portion of any thereof being
void or voidable;
(b) the failure of any Lender Party or any holder of any Note, any LC
Application, Letter of Credit or any interest therein
(i) to assert any claim or demand or to enforce any right or remedy
against Borrower, any other Obligor or any other Person (including any
other guarantor) under the provisions of the Credit Agreements, any
Note, any LC Application, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other guarantor of, or
collateral securing, any Obligations of Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations of Borrower or any other Obligor, or any
other extension, compromise or renewal of any Obligation of Borrower or any
other Obligor;
(d) any reduction, limitation, impairment or termination of any Obligations of
Borrower or any other Obligor for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations of Borrower, any other Obligor or otherwise;
Exhibit B-2 - 5
<PAGE>
(e) any amendment to, extensions of, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of the Credit
Agreements, any Note, any LC Application, any Letter of Credit or any other
Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party or
any holder of any Note, any LC Application, any Letter of Credit or
interest therein securing any of the Obligations of Borrower or any other
Obligor; or
(g) any other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, Borrower, any other Obligor, any
surety or any guarantor.
SECTION 2.4 Reinstatement. Guarantor agrees that this Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment (in whole or in part) of any of the Obligations guaranteed hereby is
rescinded or must otherwise be restored by any Lender Party or any holder of any
Note, any LC Application or any interest in an LC Obligation, upon the
insolvency, bankruptcy or reorganization of Borrower, or any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 2.5 Waiver. Guarantor hereby waives promptness, diligence,
presentment, notice of acceptance and any other notice with respect to any of
the Obligations of Borrower or any other Obligor and this Guaranty and any
requirement that any Agent, any other Lender Party or any holder of any Note,
any LC Application, any Letter of Credit or any interest therein protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against Borrower, any other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Obligations of Borrower or any other Obligor, as the
case may be.
SECTION 2.6 Waiver of Subrogation. Guarantor hereby irrevocably
waives any claim or other rights which it may now or hereafter acquire against
Borrower or any other Obligor that arise from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guaranty or any
other Loan Document, including any right of subrogation, reimbursement,
contribution, exoneration, or indemnification, any right to participate in any
claim or remedy of the Lender Parties against Borrower or any other Obligor or
any collateral which the Collateral Agent now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from Borrower or any other
Obligor, directly or indirectly, in cash or other property or by set-off or in
any manner, payment or security on account of such claim or other rights. If any
Exhibit B-2 - 6
<PAGE>
amount shall be paid to Guarantor in violation of the preceding sentence and the
Obligations shall not have been paid in cash in full and the Commitments have
not been terminated, such amount shall be deemed to have been paid to Guarantor
for the benefit of, and held in trust for, the Lender Parties, and shall
forthwith be paid to the Lender Parties to be credited and applied upon the
Obligations, whether matured or unmatured; otherwise it shall be returned to
remitter. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreements
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION 2.7 Successors, Transferees and Assigns; Transfers of Notes.
This Guaranty shall:
(a) be binding upon Guarantor, and its successors, transferees and assigns
(provided, however, that Guarantor may not assign any of its obligations
hereunder without the prior written consent of all Lenders); and
(b) inure to the benefit of and be enforceable by each Agent and each other
Lender Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note, Loan, LC
Application, Letter of Credit or interest therein held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 8.8 of the Credit Agreements.
SECTION 2.8 Taxes. All payments by the undersigned hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp, or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made hereunder is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then, subject to the provisions of Section 2.9, the undersigned
will:
(a) pay directly to the relevant authority the full amount required to be so
withheld or deducted;
Exhibit B-2 - 7
<PAGE>
(b) promptly forward to Administrative Agent an official receipt or other
documentation satisfactory to Administrative Agent evidencing such payment
to such authority; and
(c) pay to Administrative Agent for the account of the applicable Lender(s)
such additional amount(s) as is necessary to ensure that the net amount
actually received by each Lender will equal the full amount such Lender
would have received had no such withholding or deduction been required and
the undersigned hereby acknowledges that it is not entitled to and will not
seek recovery or restitution of any amount due to any of the Lenders or
Agents and paid by it pursuant to this clause (c) or pursuant to the next
sentence.
If any Taxes are directly asserted against any Agent or any Lender with respect
to any payment received by such Agent or such Lender hereunder, such Agent or
such Lender may pay such Taxes and, if paid in good faith, the undersigned will
promptly pay such additional amounts to the Administrative Agent for the account
of such Lender or Agent (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted, subject
to the provisions of Section 2.9.
The undersigned shall pay all stamp, transaction, registration and
similar taxes (including financial institutions duties, debit taxes or other
taxes payable by return and taxes passed on to any Lender or Agent by a bank or
financial institution (collectively "Stamp Taxes") and, if the undersigned fails
to pay any such charges or taxes after reasonable notice from any such Lender or
Agent, fines and penalties) which may be payable or determined to be payable in
relation to the execution, delivery, performance or enforcement of this Guaranty
or any Loan Document or any other transaction contemplated by any Loan Document
to which the undersigned is a party. The undersigned hereby indemnifies each
Lender and Agent against any liability resulting from delay or omission to pay
such charges or taxes except to the extent the liability results from failure by
the relevant Lender or Agent to pay any such tax after having been delivered
funds to do so by the undersigned or to the extent such liability is for fines
and penalties resulting from such Lender's or Agent's failure to provide
reasonable notice to the undersigned as provided herein.
If the undersigned fails to pay any Taxes or Stamp Taxes when due to
the appropriate taxing authority or fails to remit to Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the undersigned shall indemnify Lenders for any Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure, subject to the provisions of Section 2.9.
Exhibit B-2 - 8
<PAGE>
The undersigned waives any statutory right to recover from any Agent or
any Lender any amount due to any such Agent or Lender and paid by the
undersigned under this Section.
SECTION 2.9 Make-Whole Qualifications. Each Lender's claims for
reimbursements, payments, indemnities or otherwise under Section 2.8 and the
undersigned's obligations with respect thereto, shall be limited and qualified
by and subject to the following:
(a) the undersigned's obligation to pay, satisfy or recognize such claim shall
be limited to costs or losses incurred within one (1) year immediately
prior to any demand or request therefor upon the undersigned;
(b) each Lender's demand for reimbursement, payment or indemnity must be
limited to that which is being generally applied at the time by such Lender
for comparable guarantors and guaranties subject to similar provisions;
(c) each Lender which asserts its rights with respect thereto or which is
seeking or imposing such reimbursement, payment or indemnity shall provide
evidence regarding the basis of such claim and the calculation and
application thereof in reasonable detail and, in determining such amount,
each Lender may use reasonable methods of attribution and averaging; and
(d) each Lender which is seeking payment, indemnity or reimbursement pursuant
to Section 2.8 shall, if so requested by the undersigned use reasonable
efforts (subject to the overall policy considerations of such Lender) to
designate a different lending office hereunder if to do so will avoid the
need for, or reduce the amount of, any such payment, indemnity or
reimbursement; provided that, Lender would, in its sole but reasonable
determination, suffer no material economic, legal or regulatory
disadvantage or burden.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties. Guarantor hereby
represents and warrants unto each Lender Party as set forth in this Article.
SECTION 3.1.1 Organization, Existence and Good Standing. Guarantor is
duly organized or incorporated, validly existing and in good standing under the
laws of its jurisdiction of organization or incorporation, having all corporate
or partnership powers required to enter into and carry out the transactions
contemplated hereby. Guarantor is duly qualified, in good standing, and
authorized to do business in all other jurisdictions within the United States
wherein the character of the properties owned or held by it or the nature of the
Exhibit B-2 - 9
<PAGE>
business transacted by it makes such qualification necessary, except for any
lack of qualification, good standing or authorization that is not reasonably
expected to result in a Material Adverse Effect. Guarantor has taken all actions
customarily taken in order to enter, for the purpose of conducting business or
owning property, each jurisdiction outside the United States wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such actions desirable, except any failure to take such
action that is not reasonably expected to result in a Material Adverse Effect.
SECTION 3.1.2 Authorization. Guarantor has duly taken all corporate,
partnership or shareholder action necessary to authorize the execution and
delivery by it of this Guaranty and to authorize the consummation of the
transactions contemplated hereby and the performance of its obligations
hereunder.
SECTION 3.1.3 No Conflicts or Consents. The execution and delivery by
Guarantor of this Guaranty, the performance by it of its obligations hereunder,
and the consummation of the transactions contemplated by the various Loan
Documents, do not and will not (i) conflict with any provision of the articles
or certificate of incorporation, bylaws, charter, or partnership agreement or
certificate of such Guarantor, or (ii) except as to matters that could not
reasonably be expected to result in a Material Adverse Effect, result in the
acceleration of any Debt owed by such Guarantor, or conflict with any law,
statute, rule, regulation, or agreement, judgment, license, order or permit
applicable to or binding upon such Guarantor, or require the consent, approval,
authorization or order of, or notice to or filing with, any court or
Governmental Authority or third party, or result in or require the creation of
any Lien upon any material assets or properties of such Guarantor, except as
permitted in the Loan Documents.
SECTION 3.1.4 Enforceable Obligations. This Guaranty is the legal,
valid and binding obligation of Guarantor, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors'
rights and by general principles of equity.
SECTION 3.1.5 Solvency. Guarantor is solvent and will continue to be
solvent after the making of this Guaranty.
ARTICLE IV
COVENANTS
SECTION 4.1 Affirmative Covenants. Guarantor covenants and agrees
that, so long as any portion of the Obligations shall remain unpaid or any
Lender Party shall have any outstanding Commitment, the Guarantor will, unless
the Required Lenders shall otherwise consent in writing, perform, comply with,
observe and fulfill, for the benefit of the Lender Parties, each of the
Exhibit B-2 - 10
<PAGE>
covenants, agreements and obligations pertaining or otherwise applicable to
Guarantor contained in Section 5.1 of the Credit Agreement, including, without
limitation, the delivery of financial reports and notices described in Section
5.1(b) of the Credit Agreement. Guarantor hereby irrevocably and unconditionally
agrees to be bound by, and not to breach or otherwise fail to comply with, any
of such covenants, agreements and obligations as if Guarantor were a party to
the Credit Agreement and such covenants, agreements and obligations are hereby
reaffirmed by the Guarantor and are, together with all related definitions and
ancillary provisions incorporated herein by reference hereby and made a part
hereof for all purposes as if set out in full herein.
SECTION 4.2 Financial Covenants. Guarantor covenants and agrees that,
so long as any portion of the Obligations shall remain unpaid or any Lender
Party shall have any outstanding Commitment, Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform, comply with, observe and
fulfill, for the benefit of the Lender Parties, each of the covenants,
agreements and obligations pertaining to or otherwise applicable to Guarantor
contained in Section 5.3 of the Credit Agreement. Guarantor hereby irrevocably
and unconditionally agrees to be bound by, and not to breach or otherwise fail
to comply with, any of the provisions in any of such covenants, agreements and
obligations as if Guarantor were a party to the Credit Agreement and such
covenants, agreements and obligations are hereby reaffirmed by Guarantor and
are, together with all related definitions and ancillary provisions incorporated
herein by reference hereby and made a part hereof for all purposes as if set out
in full herein.
SECTION 4.3 Negative Covenants. Guarantor covenants and agrees that,
so long as any portion of the Obligations shall remain unpaid or any Lender
Party shall have any outstanding Commitment, Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform, comply with, observe and
fulfill, for the benefit of the Lender Parties, each of the covenants,
agreements and obligations pertaining to or otherwise applicable to Guarantor
contained in Section 5.2 of the Credit Agreement. Guarantor hereby
unconditionally and irrevocably agrees to be bound by, and not to breach or
otherwise fail to comply with, any of such covenants, agreements and obligations
to the extent such provisions pertain to Guarantor and such covenants,
agreements and obligations are hereby reaffirmed by Guarantor and, together with
all related definitions and ancillary provisions are incorporated herein by
reference hereby made a part hereof for all purposes as if set out in full
herein.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreements and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
Exhibit B-2 - 11
<PAGE>
SECTION 5.2 Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this Guaranty
shall be binding upon Guarantor and its successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and each
holder of a Note, an LC Application, or an interest in an LC Obligation and
their respective successors, transferees and assigns (to the full extent
provided pursuant to Section 2.7); provided, however, that Guarantor may not
assign any of its obligations hereunder without the prior written consent of all
Lenders.
SECTION 5.3 Amendments. No amendment to or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 5.4 Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery service with proof of delivery, or by
registered or certified United States mail, postage prepaid, to Guarantor at the
address of Guarantor specified on the signature pages hereto and to each Agent
and each Lender at their addresses specified on the signature pages to the
Credit Agreements (unless changed by similar notice in writing given by the
particular Person whose address is to be changed). Any such notice or
communication shall be deemed to have been given:
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery at the address provided herein;
(b) in the case of telecopy, upon receipt; or
(c) in the case of registered or certified United States mail, three days after
deposit in the mail, postage prepaid.
SECTION 5.5 No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Exhibit B-2 - 12
<PAGE>
SECTION 5.6 Section Captions. Section captions used in this Guaranty
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
SECTION 5.7 Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.8 Governing Law, Entire Agreement. THIS GUARANTY SHALL BE
DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF TEXAS AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 5.9 Waiver of Jury Trial. EACH OF GUARANTOR, AGENTS AND
LENDERS HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH, BEFORE
OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS GUARANTY, THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION.
SECTION 5.10 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
Exhibit B-2 - 13
<PAGE>
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
TEXAS. FOR PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR
STATE COURTS OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER
WITH OFFICES ON THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND,
TEXAS 79701 TO RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS
IN TEXAS. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT GUARANTOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
GUARANTY.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit B-2 - 14
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written but effective as of the Effective Date.
PIONEER NATURAL RESOURCES
COMPANY
By
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit B-2 - 15
<PAGE>
Exhibit C
Form of Request for Advance
,
--------- -----
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Request for Advance - 364 Day Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Terms which are defined in the
Credit Agreement and which are used but not defined herein are used herein with
the meanings ascribed to them in the Credit Agreement. Pursuant to the terms of
the Credit Agreement, the undersigned Borrower hereby requests that Lenders make
Advances to the undersigned Borrower in the aggregate principal amount of
$ , specifies , , as the date the undersigned Borrower desires
for Lenders to make such Advances and requests that Administrative Agent deliver
to the undersigned Borrower the proceeds thereof on such date.
To induce Lenders to make such Advances, the undersigned Borrower
hereby represents, warrants, acknowledges, and agrees to and with each Agent and
each Lender that:
(a) The Designated Officer of Borrower signing this instrument is a
duly elected, qualified and acting officer of the undersigned Borrower, holding
the office indicated below such officer's signature hereto and having all
necessary authority to act for the undersigned Borrower in making and delivering
this Request for Advance.
(b) The representations and warranties of the undersigned Borrower and
each other Obligor set forth in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof, with the same
effect as though such representations and warranties had been made on and as of
the date hereof.
Exhibit C - 1
<PAGE>
(c) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement; nor will any such Default exist upon the
undersigned Borrower's receipt and application of the Advances requested hereby.
The undersigned Borrower will use the Advances hereby requested in compliance
with the Credit Agreement.
(d) Except to the extent waived in writing as provided in Section 6.1
of the Credit Agreement, the undersigned Borrower has performed and complied
with all agreements and conditions in the Credit Agreement required to be
performed or complied with by the undersigned Borrower on or prior to the date
hereof, and each of the conditions precedent to Advances contained in the Credit
Agreement remains satisfied.
(e) The aggregate unpaid principal balance of the Advances under the
Facility after the making of such Advance requested hereby, plus the aggregate
outstanding amount of Swing Line Advances and Competitive Bid Advances at the
date hereof will not be in excess of the Facility Amount on the date requested
for the making of such Advances.
(g) The Loan Documents have not been modified, amended or supplemented
by any unwritten representations or promises, by any course of dealing, or by
any other means not provided for in Section 8.1 of the Credit Agreement. The
Credit Agreement and the other Loan Documents are hereby ratified, approved, and
confirmed in all respects.
The undersigned Borrower agrees that if, prior to the time of the
Advances requested hereby, any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify
Administrative Agent. Except to the extent, if any, that, prior to the time of
the Advances requested hereby, Administrative Agent shall have received written
notice from the undersigned Borrower to the contrary, each matter certified
herein shall be deemed once again to be certified as true and correct as of the
date of such Advances as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his knowledge, the above
representations, warranties, acknowledgments and agreements of the undersigned
Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Exhibit C - 2
<PAGE>
Exhibit D
Form of Rate Election
,
--------- ----
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Rate Election - 364 Day Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Terms which are defined in the
Credit Agreement and which are used but not defined herein are used herein with
the meanings ascribed to them in the Credit Agreement. Pursuant to the terms of
the Credit Agreement, the undersigned Borrower hereby elects a Tranche of
Eurodollar Portions in the aggregate amount of $ with an Interest
Period beginning on and continuing for a period of .
To satisfy the conditions set out in the Credit Agreement for the
making of such election, the undersigned Borrower hereby represents, warrants,
acknowledges and agrees that:
(a) The Designated Officer of the undersigned Borrower signing this
instrument is a duly elected, qualified and acting officer of such Borrower,
holding the office indicated below such officer's signature hereto and having
all necessary authority to act for such Borrower in making and delivering this
Rate Election.
(b) There does not exist on the date hereof any condition or event
which constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement.
Exhibit D - 1
<PAGE>
(c) The Loan Documents have not been modified, amended or supplemented
by any unwritten representations or promises, by any course of dealing, or by
any other means not provided for in Section 8.1 of the Credit Agreement. The
Credit Agreement and the other Loan Documents are hereby ratified, approved, and
confirmed in all respects.
(d) The undersigned Borrower further agrees that if, on or prior to the
date of the commencement of the Interest Period designated herein, any matter
certified herein by it will not be true and correct at such time as if such
certification were then made, it will immediately so notify Administrative
Agent. Except to the extent, if any, that prior to the commencement of the
Interest Period designated herein Administrative Agent shall receive written
notice to the contrary from the undersigned Borrower, each matter certified
herein shall be deemed to be certified as of the date of the commencement of
such Interest Period as if then made.
The Designated Officer of the undersigned Borrower signing this
instrument hereby certifies that, to the best of his knowledge, the above
representations, warranties, acknowledgments and agreements of the undersigned
Borrower are true, correct and complete.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Exhibit D - 2
<PAGE>
Exhibit E
Form of Request for Swing Line Bid
VIA FACSIMILE #
------------
[NAME AND ADDRESS OF LENDER]
Reference is made to the 364 Day Facility pursuant to that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"),. Capitalized
terms used herein and not otherwise defined herein shall have the meaning
assigned in the Credit Agreement. In accordance with Section 2.5, the
undersigned hereby requests a Swing Line Bid in an amount of not less than
$ to be advanced today, . We request this advance be for a period
of day(s), maturing on .
If you wish to submit a Swing Line Bid, please do so in accordance with Section
2.5 of the Credit Agreement.
If you have any questions regarding this request, please contact the undersigned
at (915) , or Frank K. Stowers at (915) 685-2179.
PIONEER NATURAL RESOURCES
USA, INC.
By:
Name:
Title:
Exhibit E - 1
<PAGE>
Exhibit F
Form of Swing Line Bid
,
---------- ---
VIA FAX (915)571-5696
Pioneer Natural Resources USA, Inc.
303 W. Wall, Suite 101
Midland, Texas 79701
Attn: Curt Kamradt
VIA FAX (214)508-2515
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Gentlemen:
Reference is made to the 364 Day Facility pursuant to that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned in the Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement, the undersigned
Lender offers to make a Swing Line Advance to today in the following
principal amount, bearing interest at the rate and maturing as stated:
Principal Amount $ Interest Rate Maturity
------------ ----------- -----------
[Name of Bank]
By:
Name:
Title:
Exhibit F - 1
<PAGE>
Exhibit G
Form of Acceptance Notice
, 19
--------- ---
VIA FACSIMILE #214/508-2515
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Notice of Acceptance of Swing Line Bid(s) - 364 Day Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
In accordance with Section 2.5 of the Credit Agreement and in response
to the Swing Line Bid(s) received today, the undersigned hereby accepts the
following bid(s). Swing Line Advance(s) must be funded and wired to
Administrative Agent by no later than 2:00 p.m.
(Dallas, Texas time) today.
Lender Principal Amount Interest Rate Maturity Date
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
PIONEER NATURAL RESOURCES
USA, INC.
By:
Name:
Title:
Exhibit G - 1
<PAGE>
Exhibit H
Form of Opinion of Borrower's and Restricted Subsidiaries' Counsel
Exhibit H has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Exhibit H - 1
<PAGE>
Exhibit I
Organization Chart of Parent, Borrower and Its Subsidiaries
Exhibit I has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Exhibit I - 1
<PAGE>
Exhibit J
Form of Designated Officer's Certificate
Reference is made to (i) the Primary Facility pursuant to that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Primary Credit Agreement") and
(ii) the 364 Day Facility pursuant to that certain Credit Facility Agreement
dated as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "364 Day Credit Agreement" and, together with the
Primary Facility, the "Credit Agreements") Terms which are defined in the Credit
Agreements and which are used but not defined herein are used herein with the
meanings given them in the Credit Agreements.
This Certificate is furnished pursuant to Section 5.1(b)(2) of the
Credit Agreements. Together herewith the Borrower is furnishing to Managing
Agents, the Co-Agents and each Lender the Parent's [Financial Statements] (the
"Financial Statements") as of (the "Reporting Date"). The Borrower
hereby represents, warrants, and acknowledges to Agents and each Lender that:
(a) the Designated Officer of the Borrower signing this instrument is a duly
elected, qualified and acting officer of the Borrower;
(b) the Financial Statements are accurate and complete and satisfy the
requirements of the Credit Agreements;
(c) attached as Schedule I hereto is a schedule of calculations showing
compliance (or noncompliance, as the case may be) as of the Reporting Date
with the requirements of Section 5.3 of the Credit Agreements; and
(d) on the Reporting Date, each Borrower was, and on the date hereof the
Borrower is, in full compliance with the disclosure requirements of Section
5.1(d) of the Credit Agreements, and no Default otherwise existed on the
Reporting Date or otherwise exists on the date of this Certificate [except
for Default(s) under Section(s) of the Credit Agreements, which
[is/are] more fully described on a schedule attached hereto].
Exhibit J - 1
<PAGE>
The Designated Officer of the Borrower signing this instrument hereby
certifies that he has reviewed the Loan Documents and the Financial Statements
and has otherwise undertaken such inquiry as is in his opinion necessary to
enable him to express an informed opinion with respect to the above
representations, warranties and acknowledgments of the Borrower and, to the best
of his knowledge, such representations, warranties, and acknowledgments are
true, correct and complete.
PIONEER NATURAL RESOURCES
USA, INC.
By:
Name:
Title:
Date:
Exhibit J - 2
<PAGE>
Schedule I
================================================================================
COMPLIANCE WITH FINANCIAL COVENANTS AS OF . ($ in 000's)
-------------
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO ========
Minimum ratio allowed 3.75
========
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION ========
Maximum ratio allowed 60%
========
================================================================================
COMPUTATION OF FINANCIAL REQUIREMENTS AND RATIOS AS OF
-------------
================================================================================
A. EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO
(Section 5.3(a)) ($ in 000's)
(i) EBITDAX (as defined in Section 5.3(a))
For the period ended , the sum of the amounts
for such period of Consolidated net income, Consolidated
Interest Expense, depreciation expense, depletion expense,
amortization expense, federal and state income taxes,
exploration and abandonment expense and other non-cash
charges and expenses, all as determined on a Consolidated
basis for Parent and its Consolidated Subsidiaries; $
--------
(ii) CONSOLIDATED INTEREST EXPENSE
(as defined in Section 5.3(a))
For the period ended , total interest expense,
whether paid or accrued, of Parent and its Consolidated
Subsidiaries on a Consolidated basis, including, without
limitation, all commissions, discounts and other fees
and charges owed with respect to Letters of Credit. $
--------
CONSOLIDATED INTEREST EXPENSE $
========
EBITDAX TO CONSOLIDATED INTEREST EXPENSE RATIO ((i)(ii)) $
========
Minimum ratio allowed 3.75:1
========
Exhibit J - 3
<PAGE>
B. CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION (Section 5.3(b)) ($ in 000's)
(i) CONSOLIDATED TOTAL FUNDED DEBT
(as defined in Section 1.1)
(a) All indebtedness of Borrower and its Consolidated
Consolidated Subsidiaries for borrowed money $
--------
(b) Plus indebtedness of Parent and its Consolidated
Subsidiaries constituting an obligation to pay the
deferred purchase price of property or services
(other than customary payment terms taken in the
ordinary course of the business) $
--------
(c) Plus indebtedness of Parent and its Consolidated
Subsidiaries evidenced by a bond, debenture, note
or similar instrument $
--------
(d) Plus principal obligations under leases capitalized
in accordance with GAAP under which either Parent
or any of its Consolidated Subsidiaries is the
lessee $
--------
(e) Plus indebtedness or obligations of the type
described in clauses (a), (b), (c) or (d) of the
definition of Debt, which are secured by a Lien or
any property owned by Parent or any of its
Consolidated Subsidiaries, whether or not such
indebtedness or obligations have been assumed by
Parent or any of its Consolidated Subsidiaries
(limited however to the lesser of (1) the amount of
its liability or (2) the value of such property)
(excluding Debt of the type referred to in clause
(e) of the definition of "Debt") $
--------
Exhibit J - 4
<PAGE>
(f) Plus the undischarged balance of any production
payment created by Parent or any of its
Consolidated Subsidiaries or for the creation of
which Parent or its Consolidated Subsidiaries
directly or indirectly received payment. $
--------
CONSOLIDATED TOTAL FUNDED DEBT $
--------
(ii) TOTAL CAPITALIZATION (as defined in Section 1.1)
(a) Consolidated Total Funded Debt of the Parent and
its Consolidated Subsidiaries (See B(i) above) $
--------
(b) Plus Consolidated shareholders' equity of the
Parent and its Consolidated Subsidiaries $
--------
TOTAL CAPITALIZATION $
========
CONSOLIDATED TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION((i)/(ii)) %
========
Maximum ratio 60%
========
Exhibit J - 5
<PAGE>
Exhibit K-1
Form of Election to Convert
,
-------- ---
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Conversion of Restricted Subsidiary
Gentlemen:
Reference is made to (i) that certain Credit Facility Agreement dated
as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Primary Credit Agreement") and (ii) that certain
Credit Facility Agreement dated as of August 7, 1997 by and among Borrower,
NationsBank of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation
Agent, Morgan Guaranty Trust Company of New York, as Documentation Agent, The
Chase Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "364 Day Credit Agreement" and,
together with the Primary Credit Agreement, the "Credit Agreements"). Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meanings provided therein.
The Borrower hereby elects, pursuant and subject to Section 5.2(i) of
the Credit Agreements, to convert, effective as of , , [name of
Restricted Subsidiary], a [jurisdiction] [corporation] [partnership], ("Subject
Subsidiary"), from a Restricted Subsidiary to an Unrestricted Subsidiary. The
Borrower hereby certifies that all requirements for the conversion of the
Subject Subsidiary to an Unrestricted Subsidiary, as specified in the Credit
Agreements, have been and will be met, both as of the date hereof and after
giving effect to such conversion. After giving effect to such conversion, no
Default will exist. The Borrower hereby agrees that the election to convert
contained herein shall not be effective if the foregoing certifications are not
true and correct in all respects as of the date hereof or are not true and
correct in all respects as of the date of such conversion. This election to
convert shall not affect any obligation of the Borrower under the Credit
Agreements or under any Note under any Credit Agreement.
Exhibit K-1 - 1
<PAGE>
This instrument shall be construed in accordance with and governed by
the laws of the State of Texas.
PIONEER NATURAL RESOURCES USA, INC.
By:
Name:
Title:
Receipt of the above Election to Convert is hereby acknowledged on
,
- --------------- ----.
NATIONSBANK OF TEXAS, N.A., as
Administrative Agent
By:
Name:
Title:
Exhibit K-1 - 2
<PAGE>
Exhibit K-2
Form of Release
This Release is delivered to [name of subsidiary] in connection with
(i) the Primary Facility pursuant to Section 5.2(i) of that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Primary Credit Agreement"), and
(ii) the 364 Day Facility pursuant to Section 5.2(i) of that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "364 Day Credit Agreement" and,
together with the Primary Credit Agreement, the "Credit Agreements"). Defined
terms used in this Release shall be used with the same meanings set forth in the
Credit Agreements.
Pursuant to the election to convert in the form of Exhibit K-1 to the
Credit Agreements delivered to Administrative Agent on , 19 , the
Borrower has notified the Lenders that it has converted
[Name of Subsidiary] from a Restricted Subsidiary to an Unrestricted Subsidiary.
Subject to the accuracy of the information contained in such notice of
conversion, the undersigned Managing Agents and Lenders hereby release
[Name of former Restricted Subsidiary] from its obligations
as Guarantor under its Guaranty dated as of , 199 , as from time to time
amended, modified and supplemented, other than obligations if any, pursuant to
Section thereof.
This Release may be separately executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so
executed shall be deemed to constitute one and the same release.
[Add signature lines for Lenders and Managing
Agents]
Agreed and Accepted
this day of , 199 :
---- --------- ---
- -------------------------------
[Name of Restricted Subsidiary]
By:
Name:
Title:
Exhibit K-2 - 1
<PAGE>
Exhibit L
Form of Agreement to be Bound
, 199
--------- ---
PIONEER NATURAL RESOURCES USA, INC.
303 West Wall, Suite 101
Midland, Texas 79701
Attention: Curt F. Kamradt
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Ruth De la Garza
NationsBank of Texas, N.A.
303 West Wall Street
Midland, Texas 79701
Attn: Frank K. Stowers
CIBC Inc.
2 Houston Center
909 Fannin Street, Suite 1200
Houston, Texas 77010
Attention: Paul Jordan
Re: Assignment to of the
------------------- -----------------------
Loans of - 364 Day Facility
-------------
Gentlemen:
We refer to Section 8.8(a) of that certain Credit Facility Agreement
dated as of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
Exhibit L - 1
<PAGE>
This Credit Agreement to be Bound constitutes notice to each of you,
pursuant to Section 8.8(a) of the Credit Agreement, of the assignment to
("Assignee") of (i) an undivided (the "Designated
Percentage"), ($ ), of the Loans and Commitments of [NAME OF LENDER]
("Assignor") in effect on the date hereof.
After giving effect to the foregoing assignment, the Loan Commitment
and Percentage Share of each of the Assignor and Assignee is as set forth
beneath the signatures of each such Person below.
Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with a copy
of all documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans thereunder. Assignee further confirms
and agrees that in becoming a Lender and in making its Loans under the Credit
Agreement, such actions have and will be made without recourse to, or
representation or warranty by, Assignor, except as expressly set forth in the
Assignment and Assumption of even date herewith between Assignor and Assignee.
Assignor and Assignee hereby agree that [Assignor/Assignee] will pay
the processing fee referred to in Section 8.8(a) of the Credit Agreement to
Administrative Agent upon the delivery thereof. It is understood and agreed that
all fees accrued under the Credit Agreement to the date hereof are for
Assignor's account and those accruing from and after the date hereof are for
Assignee's account to the extent specified in the second paragraph hereof. Each
of Assignor and Assignee hereby agree that if it receives any amount under the
Credit Agreement which is for the account of the other, it shall receive and
hold the same for the account of the other and shall promptly pay the same to
the other.
The assignment shall become effective upon (i) the receipt by the
Borrower and Administrative Agent of this document, (ii) the receipt by
Administrative Agent of the processing fee referred to in the preceding
paragraph, and (iii) in accordance with Section 8.8(a) of the Credit Agreement,
the consent of the Borrower and Administrative Agent.
Upon the effective date of this Credit Agreement the Assignee:
(a) shall have all rights and benefits of a "Lender" under the Credit
Agreement as if it were an original signatory thereto to the extent specified in
the second paragraph hereof; and
(b) agrees to be bound by the terms and conditions of each of the
Credit Agreement, and be obligated thereunder, and hereby makes each of the
representations and warranties and acknowledgments contained in such documents
as if it were an original signatory thereto.
Exhibit L - 2
<PAGE>
Upon the effective date of this Agreement, the Assignor shall be
released from its obligations under the Credit Agreement and the other Loan
Documents to the extent specified in the second paragraph.
Assignee hereby advises each of you of the following matters with
respect to the assigned Loans:
(A) Addresses for Notice:
Telephone:
--------------------
Telecopy:
--------------------
Institution Name:
--------------------
Attention:
--------------------
(B) Payment Instructions:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
This Credit Agreement may be executed by Assignor and Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
The execution below by the Borrower and Administrative Agent shall
evidence their consent to this Agreement in accordance with Section 8.8(a) of
the Credit Agreement.
Exhibit L - 3
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed by its official, officer or agent thereunto duly authorized,
effective as of , .
- ------------------------------ ------------------------------
As Assignor As Assignee
By: By:
--------------------------- ---------------------------
Name: Name:
Title: Title:
Percentage Share: % Percentage Share: %
------------ ------------
Loan Commitment: Loan Commitment:
------------ ------------
APPROVED:
PIONEER NATURAL RESOURCES USA, INC. NATIONSBANK OF TEXAS, N.A.
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title:
Exhibit L - 4
<PAGE>
Exhibit M
[Form of]
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of ,
199 , made by , a corporation ("Pledgor"), in favor of
NATIONSBANK OF TEXAS, N.A., as collateral agent (together with any successor(s)
thereto in such capacity, the "Collateral Agent") for each of Lender Parties (as
defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Facility Agreement dated as
of August 7, 1997 by and among Pioneer Natural Resources USA, Inc., a Delaware
corporation ("Borrower"), NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto
(together with all amendments, supplements, restatements and other
modifications, if any, thereafter made thereto, the "Primary Credit Agreement"),
the Lenders have extended Commitments (as defined in the Primary Credit
Agreement) to make Loans to Borrower and to issue or participate in Letters of
Credit on behalf of Borrower; and
WHEREAS, pursuant to that certain Credit Facility Agreement dated as
of August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (together with all amendments, supplements, restatements
and other modifications, if any, thereafter made thereto, the "364 Day Credit
Agreement", and together with the Primary Credit Agreement, the "Credit
Agreements"), the Lenders have extended Commitments (as defined in the 364 Day
Credit Agreement) to make Loans to Borrower; and
WHEREAS, pursuant to the Credit Agreements, Pledgor is required to
execute and deliver this Pledge Agreement; and
WHEREAS, Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
Exhibit M - 1
<PAGE>
WHEREAS, it is in the best interests of Pledgor to execute this Pledge
Agreement inasmuch as Pledgor will derive substantial direct and indirect
benefits from the Loans made from time to time to Borrower and Letters of Credit
issued on behalf of Borrower pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to Borrower pursuant to the Credit Agreements and
for the Issuing Bank to issue Letters of Credit on behalf of Borrower and for
the Lenders to acquire participations in such Letters of Credit pursuant to the
Primary Credit Agreement, Pledgor agrees, for the benefit of each Lender Party,
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Collateral Agent" is defined in the preamble.
"Commitments" means "Commitments" as defined in the Primary Credit
Agreement and "Commitments" as defined in the 364 Day Credit Agreement.
"Credit Agreements" is defined in the second recital.
"Debtor" is defined in Section 2.1(a)(i).
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock or security entitlements constituting Collateral, but shall not
include Dividends.
Exhibit M - 2
<PAGE>
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares made in the ordinary course of business and not a liquidating
dividend.
"Lender Party" means, as the context may require, any Lender, any
Issuing Bank or any Agent and each of its respective successors, transferees and
assigns under the Credit Agreements.
"Lenders" means "Lenders" as defined in the Primary Credit Agreement
and "Lenders" as defined in the 364 Day Credit Agreement.
"Loan Documents" means "Loan Documents" as defined in the Primary
Credit Agreement and "Loan Documents" as defined in the 364 Day Credit
Agreement.
"1994 Amendments" means the 1994 Amendments to Articles 8 and 9 of the
Uniform Commercial Code promulgated by the American Law Institute and the
National Conference of Commissions for Uniform State Laws.
"Notes" means "Notes" as defined in the Primary Credit Agreement and
"Notes" as defined in the 364 Day Credit Agreement.
"Obligations" means "Obligations" as defined in the Primary Credit
Agreement and "Obligations" as defined in the 364 Day Credit Agreement.
"Pledge Agreement" is defined in the preamble.
"Pledged Share Issuer" means each Person identified in Attachment 1
hereto as the issuer of the Pledged Shares identified opposite the name of such
Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by Pledgor to Collateral Agent hereunder and all
other pledged shares of capital stock from time to time hereafter delivered by
Pledgor to Collateral Agent for the purpose of pledge under this Pledge
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledgor" is defined in the preamble.
"Primary Credit Agreement" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
Exhibit M - 3
<PAGE>
"364 Day Credit Agreement" is defined in the second recital.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Texas.
SECTION 1.2 Primary Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in this Pledge
Agreement, including its preamble and recitals, have the meanings provided in
the Primary Credit Agreement.
SECTION 1.3 U.C.C. Definitions. Unless otherwise defined herein or
the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Pledge Agreement, including its preamble and recitals,
with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1 Grant of Security Interest. Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to Collateral
Agent, for its benefit and the ratable benefit of each of Lender Parties, and
hereby grants to Collateral Agent, for its benefit and the ratable benefit of
Lender Parties, a continuing security interest in, all of the following property
(the "Collateral"):
(a) 65% of the issued and outstanding shares of capital stock of each Pledged
Share Issuer identified in Item B of Attachment 1 hereto;
(b) 65% of all other Pledged Shares issued from time to time;
(c) all Dividends, Distributions, interest, and other payments and rights with
respect to any Pledged Shares; and
(d) all proceeds of any of the foregoing.
SECTION 2.2 Security for Obligations. This Pledge Agreement secures:
(a) the payment in full of all Obligations of Borrower now or hereafter
existing under the Credit Agreements, the Notes, the LC Applications and
each other Loan Document to which Borrower is or may become a party,
whether for principal, interest, costs, fees, expenses, or otherwise, and
all obligations of Pledgor and each other Obligor now or hereafter existing
under this Pledge Agreement and each other Loan Document to which it is or
may become a party;
Exhibit M - 4
<PAGE>
(b) the payment and performance of any and all present or future obligations of
Borrower according to the terms of any present or future rate swap, rate
cap, rate floor, rate collar, currency exchange transaction, forward rate
agreement, or other exchange or rate protection agreements or any option
with respect to any such transaction now existing or hereafter entered into
between Borrower or any of its Subsidiaries and one or more of the Lenders
or their Affiliates ("interest rate swap agreement");
(c) the payment and performance of any and all present or future obligations of
Borrower according to the terms of any present or future crude oil, natural
gas or other hydrocarbons swap agreements, crude oil, natural gas or other
hydrocarbons cap, crude oil, natural gas or other hydrocarbons floor, crude
oil, natural gas or other hydrocarbons collar, crude oil, natural gas or
other hydrocarbons exchange transaction, forward crude oil, natural gas or
other hydrocarbons agreement, or other exchange or crude oil, natural gas
or other hydrocarbons protection agreements or any option with respect to
any such transaction now existing or hereafter entered into between
Borrower or any of its Subsidiaries and one or more of the Lenders or their
Affiliates; and
(d) all renewals, rearrangements, increases, extensions for any period,
substitutions, modification, amendments or supplements in whole or in part
of any of the above loan documents or obligations
(all such obligations of Borrower and Pledgor being the "Secured
Obligations").
SECTION 2.3 Delivery of Pledged Shares.
(a) All certificates or instruments representing or evidencing any Collateral,
including all Pledged Shares shall be delivered to and held by or on behalf
of Collateral Agent pursuant hereto, shall be in suitable form for transfer
by delivery, and shall be accompanied by all necessary indorsements or
instruments of transfer or assignment, duly executed in blank.
Exhibit M - 5
<PAGE>
(b) (i) To the extent any of the Collateral constitutes "uncertificated
securities" (as defined in Section 8-102(a)(18) of the U.C.C. or
Section 8-102 of the Uniform Commercial Code as in effect in any
jurisdiction that has not adopted the 1994 Amendments) and the issuer
of which is organized in a jurisdiction, or has selected a
jurisdiction (in circumstances permitted by Section 8-110(d) of the
U.C.C.), that has not enacted the 1994 Amendments, Pledgor shall cause
the issuer thereof to acknowledge to Collateral Agent the registration
on the books of such issuer of the pledge and security interest hereby
created in the manner required by Section 8-408(d) of the Uniform
Commercial Code of its jurisdiction of organization.
(ii) To the extent any of the Collateral constitutes "uncertificated
securities" (as defined in Section 8-102(a)(18) of the U.C.C.) and the
issuer of which is organized in a jurisdiction, or has selected a
jurisdiction (in circumstances permitted by Section 8- 110(d) of the
U.C.C.), that has enacted the 1994 Amendments, Pledgor shall cause the
issuer thereof to acknowledge to Collateral Agent the registration on
the books of such issuer of the pledge and security interest hereby
created in the manner required by Section 8-301(1)(b) of the U.C.C.
(c) (i) To the extent any of the Collateral constitutes a "security
entitlement" or a "securities account" (as such terms are defined in
Sections 8-102(a)(17) and 8-501, respectively, of the U.C.C.) and the
jurisdiction of the securities intermediary (as described in Section
8-110(e) of the U.C.C.) against which such securities entitlement is
established or at which such securities account is maintained is not a
jurisdiction that has adopted the 1994 Amendments, Pledgor shall cause
such Collateral to be transferred to Collateral Agent pursuant to
Section 8-313(1) of the Uniform Commercial Code as in effect in such
jurisdiction in a manner satisfactory to Collateral Agent.
(ii) To the extent any of the Collateral constitutes a "security
entitlement" or a "securities account" (as such terms are defined in
Sections 8-102(a)(17) and 8-501, respectively, of the U.C.C.) and the
jurisdiction of the securities intermediary (as described in Section
8-110(e) of the U.C.C.) against which such securities entitlement is
established or at which such securities account is maintained is a
jurisdiction that has adopted the 1994 Amendments, Pledgor shall cause
to be delivered to Collateral Agent an agreement, in form and
substance satisfactory to Collateral Agent, executed by such
securities intermediary whereby such securities intermediary agrees
(i) that it will comply with entitlement orders originated by
Collateral Agent without further consent by Pledgor with respect to
Exhibit M - 6
<PAGE>
all such Collateral (it being understood that such agreement may
provide that at all times when such securities intermediary has not
been notified that a Default is in existence, the securities
intermediary may comply with entitlement orders of Pledgor), (ii) to
subordinate any security interest it may have in and to all such
Collateral to the security interest of Collateral Agent therein and
(iii) that it will not agree with any Person other than Collateral
Agent in any manner that would grant such Person "control" over any
such Collateral.
SECTION 2.4 Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share or securities entitlement at a time
when (x) no Default has occurred and is continuing, and no (y) Event of Default
has occurred and is continuing, such Dividend or payment may be paid directly to
Pledgor. If any such Default or Event of Default has occurred and is continuing,
then any such Dividend or payment shall be paid directly to Collateral Agent.
SECTION 2.5 Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full of all Secured
Obligations and the termination of all Commitments,
(b) be binding upon Pledgor and its successors, transferees and assigns, and
(c) inure, together with the rights and remedies of Collateral Agent hereunder,
to the benefit of Collateral Agent and each other Lender Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 8.8 of the Credit Agreements and Article VII of the Credit
Agreements. Upon the payment in full of all Secured Obligations and the
termination of all Commitments, the security interest granted herein shall
terminate and all rights to the Collateral shall revert to Pledgor. Upon any
such termination, Collateral Agent will, at Pledgor's sole expense, deliver to
Pledgor, without any representations, warranties or recourse of any kind
whatsoever, all certificates and instruments representing or evidencing all
Pledged Shares, together with all other Collateral held by Collateral Agent
hereunder, and execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence such termination.
Exhibit M - 7
<PAGE>
SECTION 2.6 Security Interest Absolute. All rights of Collateral
Agent and the security interests granted to Collateral Agent hereunder, and all
obligations of Pledgor hereunder, shall be absolute and unconditional,
irrespective of (a) any lack of validity or enforceability of the Credit
Agreements, any Note or any other Loan Document, (b) the failure of any Lender
Party or any holder of any Note, (i) to assert any claim or demand or to enforce
any right or remedy against Borrower, any other Obligor or any other Person
under the provisions of the Credit Agreements, any Note, any other Loan Document
or otherwise, or (ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of Borrower or any other
Obligor, (c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other extension, compromise
or renewal of any Obligation of Borrower or any other Obligor, (d) any
reduction, limitation, impairment or termination of any Obligations of Borrower
or any other Obligor for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and Pledgor
hereby waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any other
event or occurrence affecting, any Obligations of Borrower, any other Obligor or
otherwise, (e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreements, any
Note or any other Loan Document, (f) any addition, exchange, release, surrender
or non-perfection of any collateral (including the Collateral), or any amendment
to or waiver or release of or addition to or consent to departure from any
guaranty, for any of the Obligations, or (g) any other circumstances which might
otherwise constitute a defense available to, or a legal or equitable discharge
of, Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.7 Waiver of Subrogation. Pledgor hereby irrevocably waives
any claim or other rights which it may now or hereafter acquire against Borrower
or any other Obligor that arise from the existence, payment, performance or
enforcement of Pledgor's obligations under this Pledge Agreement or any other
Loan Document, including any right of subrogation, reimbursement, exoneration,
or indemnification, any right to participate in any claim or remedy of Lender
Parties against Borrower or any other Obligor or any collateral which Collateral
Agent now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
to take or receive from Borrower or any other Obligor, directly or indirectly,
in cash or other property or by set-off or in any manner, payment or security on
account of such claim or other rights. If any amount shall be paid to Pledgor in
violation of the preceding sentence and the Obligations shall not have been paid
in cash in full and the Commitments have not been terminated, such amount shall
be deemed to have been paid to Pledgor for the benefit of, and held in trust
for, Lender Parties, and shall forthwith be paid to Lender Parties to be
credited and applied upon the Obligations, whether matured or unmatured. Pledgor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreements and that the waiver
set forth in this Section is knowingly made in contemplation of such benefits.
Exhibit M - 8
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Warranties, etc. Pledgor represents and warrants unto
each Lender Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of Pledged Shares) by Pledgor to Collateral
Agent of any Collateral, as set forth in this Article.
SECTION 3.1.1 Representations in Credit Agreement. Pledgor hereby
incorporates by reference, mutatis mutandi, each of the representations and
warranties made in Sections 4.1(a), (b), (c), (d) and (e) of the Credit
Agreement.
SECTION 3.1.2 Ownership, No Liens, etc. Pledgor is the legal and
beneficial owner of, and has good title to (and has full right and authority to
pledge and assign) such Collateral, free and clear of all liens, security
interests, options, or other charges or encumbrances, except any lien or
security interest granted pursuant hereto in favor of Collateral Agent.
SECTION 3.1.3 Valid Security Interest. The delivery of such Collateral
to Collateral Agent is effective to create a valid, perfected, first priority
security interest in such Collateral and all proceeds thereof, securing the
Secured Obligations. No filing or other action will be necessary to perfect or
protect such security interest.
SECTION 3.1.4 As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute 65% of the issued
and outstanding shares of capital stock of each Pledged Share Issuer owned by
Pledgor set forth across from the name of such Pledged Share Issuer on
Attachment 1 hereto. Pledgor has no Restricted Subsidiary other than the Pledged
Share Issuers.
SECTION 3.1.5 Authorization, Approval, etc. Except as contemplated by
Section 2.3(b) and (c), no authorization, approval, or other action by, and no
notice to or filing with, any governmental authority, regulatory body or any
other Person is required either (a) for the pledge by Pledgor of any Collateral
pursuant to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by Pledgor, or (b) for the exercise by
Collateral Agent of the rights provided for in this Pledge Agreement, or, except
with respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the Collateral pursuant to this
Pledge Agreement.
Exhibit M - 9
<PAGE>
ARTICLE IV
COVENANTS
SECTION 4.1 Protect Collateral; Further Assurances, etc. Pledgor will
not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of Collateral Agent hereunder). Pledgor will warrant
and defend the right and title herein granted unto Collateral Agent in and to
the Collateral (and all right, title and interest represented by the Collateral)
against the claims and demands of all Persons whomsoever. Pledgor agrees that at
any time, and from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that Collateral Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable Collateral Agent to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Pledgor shall provide Collateral Agent with copies of all written
information received from any securities intermediary of Pledgor with respect to
any Collateral.
SECTION 4.2 Stock Powers, etc. Pledgor agrees that all Pledged Shares
(and all other shares of capital stock constituting Collateral) delivered by
Pledgor pursuant to this Pledge Agreement will be accompanied by duly indorsed
undated blank stock powers, in substantially the form of Attachment 2 hereto, or
other equivalent instruments of transfer acceptable to Collateral Agent. Pledgor
will, from time to time upon the request of Collateral Agent, promptly deliver
to Collateral Agent such stock powers, in substantially the form of Attachment
2, instruments and similar documents, satisfactory in form and substance to
Collateral Agent, with respect to the Collateral as Collateral Agent may
reasonably request and will, from time to time upon the request of Collateral
Agent after the occurrence of any Event of Default, promptly transfer any
Pledged Shares or other shares of common stock constituting Collateral into the
name of any nominee designated by Collateral Agent.
SECTION 4.3 Continuous Pledge. Subject to Section 2.4, the Pledgor
will, at all times, keep pledged to Collateral Agent pursuant hereto all Pledged
Shares, all other shares of capital stock constituting Collateral, and all
securities, security entitlements and securities accounts constituting
Collateral and all other Collateral and other securities, instruments, security
entitlements, financial assets, investment property, proceeds, and rights from
time to time received by or distributable to Pledgor in respect of any
Collateral.
SECTION 4.4 Dividends, etc. Pledgor agrees after any acceleration
under the Credit Agreements or Default occurring on the Maturity Date, promptly
upon receipt thereof by Pledgor and without any request therefor by Collateral
Agent, to deliver (properly endorsed where required hereby or requested by
Collateral Agent) to Collateral Agent all Dividends, Distributions, all
interest, all principal, all other cash payments, and all proceeds of the
Collateral, all of which shall be held by Collateral Agent as additional
Exhibit M - 10
<PAGE>
Collateral for use in accordance with Section 6.3. All Dividends, Distributions,
interest, principal, cash payments, and proceeds which may at any time and from
time to time be held by Pledgor but which Pledgor is then obligated to deliver
to Collateral Agent, shall, until delivery to Collateral Agent, be held by
Pledgor separate and apart from its other property in trust for Collateral
Agent.
SECTION 4.5 Additional Undertakings. Pledgor will not, without the
prior written consent of Collateral Agent, take or omit to take any action the
taking or the omission of which would result in any impairment or alteration of
the security interest in the Pledged Shares.
ARTICLE V
COLLATERAL AGENT
SECTION 5.1 Agent Appointed Attorney-in-Fact. Pledgor hereby
irrevocably appoints Collateral Agent Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time in Collateral Agent's discretion, to take any
action and to execute any writing or paper which Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Pledge Agreement,
including without limitation: (a) after the occurrence and continuance of an
Event of Default, to ask, demand, collect, sue for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral; (b) to receive, endorse, and collect any
drafts or other instruments, documents and chattel paper, in connection with
clause (a) above; and (c) to file any claims or take any action or institute any
proceedings which Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Collateral Agent with respect to any of the Collateral. Pledgor hereby
acknowledges, consents and agrees that the power of attorney granted pursuant to
this Section is irrevocable and coupled with an interest.
SECTION 5.2 Agent May Perform. If Pledgor fails to perform any
agreement contained herein, Collateral Agent may itself perform, or cause
performance of, such agreement, and the expenses of Collateral Agent incurred in
connection therewith shall be payable by Pledgor pursuant to Section 6.4.
SECTION 5.3 Agent Has No Duty. The powers conferred on Collateral
Agent hereunder are solely to protect its interest (on behalf of Lender Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, Collateral Agent shall
have no duty as to any Collateral or responsibility for (a) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities, tenders
or other matters relative to any Pledged Shares, whether or not Collateral Agent
has or is deemed to have knowledge of such matters or (b) taking any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral.
Exhibit M - 11
<PAGE>
SECTION 5.4 Reasonable Care. Collateral Agent is required to exercise
reasonable care in the custody and preservation of any of the Collateral in its
possession; provided, however, Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any of the
Collateral, if it takes such action for that purpose as Pledgor reasonably
requests in writing at times other than upon the occurrence and during the
continuance of any Event of Default, but failure of Collateral Agent to comply
with any such request at any time shall not in itself be deemed a failure to
exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1 Certain Remedies. On or after any acceleration under the
Credit Agreements or Default occurring on the Maturity Date:
(a) Collateral Agent may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party on default under the U.C.C.
(whether or not the U.C.C. applies to the affected Collateral) and also
may, without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any of
Collateral Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as Collateral Agent may deem
commercially reasonable. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to Pledgor of the
time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. Collateral Agent
shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. Collateral Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) Collateral Agent may (i) transfer all or any part of the Collateral into
the name of Collateral Agent or its nominee, with or without disclosing
that such Collateral is subject to the lien and security interest
hereunder, (ii) notify the parties obligated on any of the Collateral to
make payment to Collateral Agent of any amount due or to become due
thereunder, (iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than
the original period) any obligations of any nature of any party with
respect thereto, (iv) endorse any checks, drafts, or other writings in
Pledgor's name to allow collection of the Collateral, (v) take control of
any proceeds of the Collateral, and (vi) execute (in the name, place and
stead of Pledgor) endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or any of the
Collateral.
Exhibit M - 12
<PAGE>
SECTION 6.2 Compliance with Restrictions. Pledgor agrees that in any
sale of any of the Collateral whenever an Event of Default shall have occurred
and be continuing, Collateral Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and Pledgor further agrees that such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor shall Collateral Agent be liable nor accountable to Pledgor for any
discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION 6.3 Application of Proceeds. All cash proceeds received by
Collateral Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
Collateral Agent, be held by Collateral Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to Collateral Agent pursuant to Sections 6.4 of the Credit Agreements)
in whole or in part by Collateral Agent against, all or any part of the Secured
Obligations in such order as Collateral Agent shall elect.
Any surplus of such cash or cash proceeds held by Collateral Agent and
remaining after payment in full of all the Secured Obligations, and the
termination of all Commitments, shall be paid over to Pledgor or to whomsoever
may be lawfully entitled to receive such surplus.
SECTION 6.4 Indemnity and Expenses. Pledgor hereby indemnifies and
holds harmless Collateral Agent in accordance with Sections 6.4 of the Credit
Agreements.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1 Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
Exhibit M - 13
<PAGE>
SECTION 7.2 Amendments. No amendment to or waiver of any provision of
this Pledge Agreement, nor consent to any departure by Pledgor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
SECTION 7.3 Protection of Collateral. Collateral Agent may from time
to time, at its option, perform any act which Pledgor agrees hereunder to
perform and which Pledgor shall fail to perform after being requested in writing
so to perform after the occurrence and continuance of an Event of Default and
Collateral Agent may from time to time take any other action which Collateral
Agent reasonably deems necessary for the maintenance, preservation or protection
of any of the Collateral or of its security interest therein.
SECTION 7.4 Obligations Not Affected. The obligations of Pledgor
under this Pledge Agreement shall remain in full force and effect without regard
to, and shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the Credit
Agreements, any Note, any other Loan Documents, any instrument delivered in
connection therewith, or any assignment or transfer thereof;
(b) any exercise, non-exercise, or waiver by Collateral Agent or any Lender of
any right, remedy, power, or privilege under or in respect of, or any
release of any guaranty or collateral provided pursuant to, this Pledge
Agreement, the Credit Agreements, Pledgor's Guaranty or any other Loan
Document;
(c) any waiver, consent, extension, indulgence, or other action or inaction in
respect of this Pledge Agreement, the Credit Agreements, Pledgor's Guaranty
or any other Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation, or the like, of Pledgor or any other Person,
whether or not Pledgor shall have notice or knowledge of any of the
foregoing.
SECTION 7.5 Notices. All notices, requests, consents, demands and
other communications required or permitted hereunder shall be in writing, unless
otherwise specifically provided herein and shall be deemed sufficiently given or
furnished if delivered by personal delivery, by telecopy (with telephonic
confirmation of transmission, by delivery
Exhibit M - 14
<PAGE>
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, to Pledgor at the address of Pledgor specified on the
signature pages hereto and to each Agent and each Lender at their addresses
specified on the signature pages to the Credit Agreements (unless changed by
similar notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given:
(a) in the case of personal delivery service, as of the date of first attempted
delivery at the address provided herein; (b) in the case of telecopy, upon
receipt; or (c) in the case of registered or certified United States mail, three
days after deposit in the mail, postage prepaid.
SECTION 7.6 No Waiver; Remedies. No failure on the part of any Lender
Party or any holder of a Note, an LC Application, or an interest in an LC
Obligation to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 7.7 Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.8 Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION 7.9 Governing Law, Entire Agreement. THIS PLEDGE AGREEMENT
SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF
TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THIS PLEDGE AGREEMENT AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 7.10 Waiver of Jury Trial. EACH OF PLEDGOR, AGENTS AND LENDERS
HEREBY (a) IRREVOCABLY WAIVES, THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
Exhibit M - 15
<PAGE>
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH,
BEFORE OR AFTER MATURITY; (b) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (c) 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 (d)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO AND ACCEPT THIS PLEDGE
AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION.
SECTION 7.11 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF LENDER PARTIES OR
PLEDGOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY
MAY BE BROUGHT, AT COLLATERAL AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. FOR
PURPOSES OF ANY ACTION OR PROCEEDING INSTITUTED IN THE FEDERAL OR STATE COURTS
OF TEXAS, THE UNDERSIGNED HEREBY IRREVOCABLY DESIGNATES BORROWER WITH OFFICES ON
THE DATE HEREOF AT 303 WEST WALL STREET, SUITE 101, MIDLAND, TEXAS 79701 TO
RECEIVE FOR AND ON BEHALF OF THE UNDERSIGNED SERVICE OF PROCESS IN TEXAS.
PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
Exhibit M - 16
<PAGE>
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
THIS WRITTEN PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
Exhibit M - 17
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[Pledgor]
--------------------------------------
By:
Name:
Title:
Address: 303 West Wall
Suite 101
P. O. Box 3178
Midland, Texas 79701
Attention: Curt Kamradt
Telephone: (915) 571-3171
Telecopy: (915) 571-5696
with a copy to:
Garrett Smith
1400 Williams Square West
5205 North O'Connor Blvd.
Irving, Texas 75039
Telephone: (972) 402-7013
Telecopy: (972) 402-7028
Exhibit M - 18
<PAGE>
NATIONSBANK OF TEXAS, N.A.
By
Name: Frank K. Stowers
Title: Vice President
Address: 303 W. Wall
P. O. Box 1599
Midland, Texas
79701
Attention: Frank K. Stowers
Exhibit M - 19
<PAGE>
ACKNOWLEDGMENT
The undersigned hereby agrees and consents to the terms and provisions
of the foregoing Pledge Agreement, including, without limitation, Section 2.3
and Article IV of the Pledge Agreement. The undersigned hereby acknowledges the
registration on its books of the pledge and security interest created by the
Pledge Agreement in the manner required by Section 8-301(1)(b) of the U.C.C. and
that undersigned will not permit any sale, transfer, pledge or other encumbrance
of the Pledged Interests without the prior written consent of the Agent.
By:
Name:
Title:
Exhibit M - 20
<PAGE>
ATTACHMENT 1
to
Pledge Agreement
Pledged Shares
- --------------
Pledged Share Issuer
- --------------------
Outstanding Shares
Shares Delivered
----------- ---------
- -------------------------------- ----------- ---------
Exhibit M - 21
<PAGE>
ATTACHMENT 2
to
Pledge Agreement
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ( ) shares
----------------------------------------------- -------------------
of common stock in , a corporation,
----------------------------- ---------------
represented by the attached Certificate No. herewith and do hereby
---------------
irrevocably constitute and appoint attorney
--------------------------------------
to transfer the said stock on the books of with full power
-----------------------
of substitution in the premises.
DATED
-----------------
[PLEDGOR]
------------------------------
By:
Name:
Title:
IN PRESENCE OF
- --------------------------------
Exhibit M - 22
<PAGE>
Exhibit N
Request for Competitive Bid Offer
,
--------- ---
To: The Lenders party to the Credit Agreement, NationsBank of Texas, N.A.,
as agent (the "Administrative Agent")
From: (the "Borrower")
--------------------------
Re: 364 Day Facility - Credit Facility Agreement dated as of August 7, 1997
by and among Borrower, NationsBank of Texas, N.A., as Administrative
Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company
of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from
time to time parties thereto (the "Credit Agreement")
Pursuant to Section 2.22 of the Credit Agreement, we hereby request
Competitive Bid Offers for the following proposed Competitive Bid Advance(s):
Borrowing Date: ,
--------------- ----
Principal Amount (1) Requested Maturity Date (2)
- -------------------- ---------------------------
$
Upon acceptance by the undersigned of any or all of the Competitive Bid
Offers tendered by Lenders in response to this request, the undersigned shall be
deemed to affirm as of the borrowing date thereof the representations and
warranties made by the Obligors in the Credit Agreement and the other Loan
Documents to the extent specified in Section 3.2 thereof (except to the extent
such representations and warranties relate solely to an earlier date).
- --------
(1) Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
(2) At least 15 and up to 360 days.
Exhibit N - 1
<PAGE>
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
PIONEER NATURAL
RESOURCES USA, INC.
By:
Name:
Title:
Exhibit N - 2
<PAGE>
Exhibit O
Competitive Bid Offer
,
--------- ----
To:
--------------------------
Attn:
----------------
Re: 364 Day Facility - Competitive Bid Offer to Pioneer Natural Resources
USA, Inc. (the "Borrower")
In response to the Borrower's Request for Competitive Bid Offer dated
, 199 , we hereby make the following Competitive Bid Offer pursuant
to Section 2.22 of the Credit Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:
-------------------------
2. Person to contact at Lender:
---------------------
3. Borrowing Date: , (1)
------------- -----
4. We hreeby offer to make Competitive Bid Advance(s) in the following
principal amounts, for the following periods and at the following
rates:
Principal Maturity Competitive
Amount (2) Date (3) Bid Rate(4)
- ---------- -------- -----------
$
- -------------------
(1) As specified in the related Request for Competitive Bid Offer.
(2) Principal amount bid for each maturity date may not exceed the principal
amount requested. Bids must be made for at least $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(3) At least 15 and up to 360 days, as specified in the related Request for
Competitive Bid Offer.
(4) Specify rate of interest per annum (rounded to the nearest 1/10,000 of
1%).
Exhibit O - 1
<PAGE>
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in that certain Credit
Facility Agreement dated as of August 7, 1997 by and among Borrower, NationsBank
of Texas, N.A., as Administrative Agent, CIBC Inc., as Documentation Agent,
Morgan Guaranty Trust Company of New York, as Documentation Agent, The Chase
Manhattan Bank, as Syndication Agent, the Co-Agents party thereto, and the
Lenders from time to time parties thereto (the "Credit Agreement"), irrevocably
obligates us to make the Competitive Bid Advance(s) for which any offer(s) are
accepted, in whole or in part. Capitalized terms used herein and not otherwise
defined herein shall have their meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: ,
------------ ---- By:
-----------------------------
Authorized Officer
Exhibit O - 2
<PAGE>
Exhibit P
Bid Acceptance
,
---------- ----
To: [Name of Lender]
Re: 364 Day Facility - Request for Competitive Bid Offer from Pioneer Natural
Resources USA, Inc. (the "Borrower")
Pursuant to that certain Credit Facility Agreement dated as of August 7,
1997 by and among Borrower, NationsBank of Texas, N.A., as Administrative Agent,
CIBC Inc., as Documentation Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, the
Co-Agents party thereto, and the Lenders from time to time parties thereto (the
"Credit Agreement"), we accept your Competitive Bid Offer for the following
proposed Competitive Bid Advance(s) and reject any Competitive Bid Offer to the
Competitive Bid Borrower not described below:
Borrowing Date: ,
--------------- ----
Principal Amount Maturity Date Competitive Bid Rate
- ---------------- ------------- --------------------
$
Capitalized terms used herein have the meanings assigned to them in the
Credit Agreement.
PIONEER NATURAL
RESOURCES USA, INC.
By:
-------------------------
Authorized Officer
Exhibit P - 1
<PAGE>
Exhibit Q
[Form of]
Certificate of Extension
,
---------- ---
NationsBank of Texas, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attn: Ruth De la Garza
Re: Extension of Maturity Date - 364 Day Facility
Gentlemen:
Reference is made to that certain Credit Facility Agreement dated as of
August 7, 1997 by and among Borrower, NationsBank of Texas, N.A., as
Administrative Agent, CIBC Inc., as Documentation Agent, Morgan Guaranty Trust
Company of New York, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, the Co-Agents party thereto, and the Lenders from time to
time parties thereto (the "Credit Agreement"). Terms which are defined in the
Credit Agreement and which are used but not defined herein are used herein with
the meanings ascribed to them in the Credit Agreement.
Pursuant to the terms of Section 2.12 of the Credit Agreement, Borrower
hereby requests that an extension of the Maturity Date under the Credit
Agreement for a period of 364 days from the current Maturity Date.
To induce Lenders to make such an extension of the current Maturity
Date, Borrower hereby presents, warrants, acknowledges, and agrees to and with
each Agent and each Lender that:
(a) The Designated Officer of Borrower signing this intrument is a duly
selected qualified and acting officer of Borrower, holding the office
indicated below such officer's signature hereto and having all necessary
authority to act for Borrower in making and delivering this Certificate of
Extension.
(b) The representations and warranties of Borrower and each other Obligor set
forth in the Credit Agreement and the other Loan Documents are true and
correct on and as of the date hereof, with the same effect as though such
representations and warranties had been made on and as of the date hereof.
(c) There does not exist on the date hereof any condition or event which
constitutes a Default which has not been waived in writing as provided in
Section 6.1 of the Credit Agreement.
Exhibit Q - 1
<PAGE>
(d) Except to the extent waived in writing as provided in Section 6.1 of the
Credit Agreement, Borrower has performed and complied with all agreements
and conditions in the Credit Agreement required to be performed or complied
with by Borrower on or prior to the date hereof.
(g) The Loan Documents have not been modified, amended or supplemented by any
unwritten representations or promises, by any course of dealing or by any
other means not provided for in Section 8.1 of the Credit Agreement. The
Credit Agreement and the other Loan Documents are hereby ratified,
approved, and confirmed in all respects.
Borrower agrees that if, prior to the time of the extension of the
current Maturity Date requested hereby, any matter certified to herein by it
will not be true and correct at such time as if then made, it will immediately
so notify Administrative Agent. Except to the extent, if any, that, prior to the
time of the extension of the current Maturity Date requested hereby,
Administrative Agent shall have received written notice from Borrower to the
contrary, each matter certified herein shall be deemed once again to be
certified as true and correct as of the date of such extension as if then made.
The Designated Officer of Borrower signing this instrument hereby
certifies that, to the best of his knowledge, the above representations,
warranties, acknowledgments and agreements of Borrower are true, correct and
complete.
PIONEER NATURAL
RESOURCES USA, INC.
By:
Name:
Title
Exhibit Q-2
<PAGE>
Schedule 1
Schedule of Lenders' Commitments and Percentage Share
Schedule 1 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 1 - 1
<PAGE>
Schedule 2
Disclosure Schedule
Schedule 2 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 2 - 1
<PAGE>
Schedule 3
Schedule of Restricted Subsidiaries
Schedule 3 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 3 - 1
<PAGE>
Schedule 4
Schedule of Insurance
Schedule 4 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 4 - 1
<PAGE>
Schedule 5
Schedule of Security Instruments
Schedule 5 has been omitted from this filing as (i) it is not material to an
investment decision and (ii) the information that it contains has been disclosed
elsewhere if disclosure of such information is required. Pioneer Natural
Resources Company agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
Schedule 5 - 1
<PAGE>
