Exhibit 4.1. ANNEX I
DEFINED TERMS
"364-Day Commitment Fee Rate" means, on any date, the number
of Basis Points per annum set forth below based on the Applicable
Rating Level on such date:
Applicable Applicable 364-Day Commitment
Rating Level Fee Rate
Level I 7.0
Level II 8.5
Level III 10.0
Level IV 12.5
Level V 15.0
Level VI 22.5
Level VII 27.5
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such
specified Person, including, without limitation, Indebtedness
incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien
encumbering any assets acquired by such specified Person, and any
refinancing of the foregoing indebtedness on similar terms, taking
into account current market conditions.
"Adjusted Canadian Dollar Eurodollar Rate" means, for any
Canadian Dollar Eurodollar Loan for any Eurodollar Interest Period
therefor, the per annum rate equal to the sum of (a) the Applicable
Margin plus (b) the rate per annum (rounded upwards, if necessary,
to the nearest 1/1000 of 1%) determined by Canadian Agent to be
equal to the quotient obtained by dividing (i) the Canadian Dollar
Eurodollar Rate for such Canadian Dollar Eurodollar Loan for such
Eurodollar Interest Period by (ii) 1 minus the Reserve Requirement
for such Canadian Dollar Eurodollar Loan for such Interest Period.
The Adjusted Canadian Dollar Eurodollar Rate for any Canadian Dollar
Eurodollar Loan shall change whenever the Applicable Margin or the
Reserve Requirement changes. No Adjusted Canadian Dollar Eurodollar
Rate charged by any Person shall ever exceed the Highest Lawful
Rate.
"Adjusted US Dollar Eurodollar Rate" means, for any US Dollar
Eurodollar Loan for any Eurodollar Interest Period therefor, the per
annum rate equal to the sum of (a) the Applicable Margin plus (b)
the rate per annum (rounded upwards, if necessary, to the nearest
1/1000 of 1%) determined by Agent to be equal to the quotient
obtained by dividing (i) the US Dollar Eurodollar Rate for such US
Dollar Eurodollar Loan for such Eurodollar Interest Period by (ii) 1
minus the Reserve Requirement for such US Dollar Eurodollar Loan for
such Interest Period. The Adjusted US Dollar Eurodollar Rate for
any US Dollar Eurodollar Loan shall change whenever the Applicable
Margin or the Reserve Requirement changes. No Adjusted US Dollar
Eurodollar Rate charged by any Person shall ever exceed the Highest
Lawful Rate.
"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. A Person shall be deemed to be "controlled by"
any other Person if such other Person possesses, directly or
indirectly, power
(a) to vote 20% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners; or
(b) to direct or cause the direction of the management
and policies of such Person whether by contract or otherwise.
"Applicable Currency" means (i) when used with respect to any
US Loan or US LC Obligations, US Dollars, and (ii) when used with
respect to any Canadian Prime Rate Loan, any Canadian Dollar
Eurodollar Loan or any Bankers' Acceptance, Canadian Dollars, and
(iii) when used with respect to any Canadian Base Rate Loan or an US
Dollar Eurodollar Loan made under the Canadian Agreement, US Dollars.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
Affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
Affiliate of such Lender) as such Lender may from time to time
specify to US Agent, Canadian Agent, and Borrowers by written notice
in accordance with the terms hereof as the office by which its Loans
of such Type are to be made and maintained.
"Applicable Margin" means when used in the Canadian Agreement
and when used in the US Agreement on any date, the number of Basis
Points per annum set forth below based on the Applicable Rating
Level on such date:
Applicable Applicable
Rating Level Margin
Level I 30.0
Level II 35.0
Level III 45.0
Level IV 60.0
Level V 75.0
Level VI 100.0
Level VII 125.0
In the event that the Canadian Revolving Loans convert into Canadian
Term Loans pursuant to Section 1.7 of the Canadian Agreement, then
as of April 20, 2004, and at all times thereafter the Applicable
Margin as set forth above on such Canadian Term Loans shall increase
by fifteen (15) Basis Points per annum. Changes in the Applicable
Margin will occur automatically without prior notice as changes in
the Applicable Rating Level occur. US Agent will give notice
promptly to Borrowers and the Lenders of changes in the Applicable
Margin.
"Applicable Rating Level" means for any day, the highest
Rating Level (as such term is defined below in this paragraph)
issued by S&P or Moody's (collectively, in this definition called
the "Designated Rating Agencies"), provided that if the Rating Level
issued by one Designated Rating Agency is more than one level higher
than the Rating Level issued by the other Designated Rating Agency,
the "Applicable Rating Level" will be one level above the lowest
Rating Level. As used in this definition, (i) the term "Rating
Level" means for any day with respect to any of the Designated
Rating Agencies, the rating level described below (or its then
equivalent) applicable on such day, issued by such Designated Rating
Agency, from time to time, with respect to US Borrower's Long-Term
Debt or if such rating is unavailable, equivalents thereof,
including counterparty ratings, implied ratings and corporate
ratings; (ii) "US Borrower's Long-Term Debt" means senior,
unsecured, non-credit enhanced long-term indebtedness for borrowed
money of US Borrower, and (iii) " " means a rating equal to or more
favorable than and " " means a rating equal to or less favorable
than.
Rating Level S&P Moody's
Level I A A2
Level II A- A3
Level III BBB+ Baa1
Level IV BBB Baa2
Level V BBB- Baa3
Level VI BB+ Ba1
Level VII BB Ba2
If either of the Designated Rating Agencies shall not have in effect
a rating for US Borrower's Long-Term Debt or if the rating system of
any of the Designated Rating Agencies shall change, or if either of
the Designated Rating Agencies shall cease to be in the business of
rating corporate debt obligations, US Borrower and Required Lenders
shall negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings from
such Designated Rating Agency, but until such an agreement shall be
reached, the Applicable Rating Level shall be based only upon the
rating by the remaining Designated Rating Agency.
"BA Discount Rate" means, in respect of a BA being accepted
by a Lender on any date, (i) for a Lender that is listed in Schedule
I to the Bank Act (Canada), the average bankers' acceptance rate as
quoted on Reuters CDOR page (or such other page as may, from time to
time, replace such page on that service for the purpose of
displaying quotations for bankers' acceptances accepted by leading
Canadian financial institutions) at approximately 10:00 a.m.
(Toronto time) on such drawdown date for bankers' acceptances having
a comparable maturity date as the maturity date of such BA (the
"CDOR Rate"); or, if such rate is not available at or about such
time, the average of the bankers' acceptance rates (expressed to
five decimal places) as quoted to the Agent by the Schedule I BA
Reference Banks as of 10:00 a.m. (Toronto time) on such drawdown
date for bankers' acceptances having a comparable maturity date as
the maturity date of such BA; and (ii) for a Lender that is listed
in Schedule II to the Bank Act (Canada), the rate established by the
Canadian Agent to be the lesser of (A) the CDOR Rate plus 10 Basis
Points; and (B) the average of the bankers' acceptance rates
(expressed to five decimal places) as quoted to the Canadian Agent
by the Schedule II BA Reference Banks as of 10:00 a.m. (Toronto
time) on such drawdown date for bankers' acceptances having a
comparable maturity date as the maturity date of such BA;
"Bankers' Acceptance" or "BA" means a Canadian Dollar draft
of Canadian Borrower, for a term selected by such Canadian Borrower
of either 30, 60, 90 or 180 days (as reduced or extended by the
Lender, acting reasonably, to allow the maturity thereof to fall on
a Business Day) payable in Canada.
"Bankruptcy and Insolvency Act (Canada)" means the Bankruptcy
and Insolvency Act, S.C. 1992, c. 27, including the regulations made
and, from time to time, in force under that Act.
"Basis Point" means one one-hundredth of one percent (0.01%).
"Borrower" means any of US Borrower and Canadian Borrower.
"Borrowing" means a borrowing of new Loans of a single Type
pursuant to Section 1.2 or a Continuation or Conversion of existing
Loans into a single Type (and, in the case of Eurodollar Loans, with
the same Interest Period) pursuant to Section 1.3 of the US
Agreement or the Canadian Agreement or the acceptance or purchase of
Bankers' Acceptances issued by Canadian Borrower under the Canadian
Agreement or the Continuation or Conversion of existing Banker's
Acceptances into Canadian Loans of a single Type in the case of
Eurodollar Loans with the same Interest Period pursuant to Section
1.3 of the Canadian Agreement.
"Borrowing Notice" means a written or telephonic request, or
a written confirmation, made by any Borrower which meets the
requirements of Section 1.2 of the US Agreement or Section 1.2 of
the Canadian Agreement.
"Business Day" means (a) with respect to the Canadian
Agreement, a day, other than a Saturday or Sunday, on which
commercial banks are open for business with the public in Dallas,
Texas and Toronto, Ontario and (b) with respect to the US Agreement,
a day, other than a Saturday or Sunday, on which commercial banks
are open for business with the public in Dallas, Texas. Any Business
Day in any way relating to Eurodollar Loans (such as the day on
which an Interest Period begins or ends) must also be a day on
which, in the judgment of US Agent or Canadian Agent, as applicable,
significant transactions in dollars are carried out in the interbank
eurocurrency market.
"Canadian Advances" has the meaning given to such term in
Section 1.1 of the Canadian Agreement.
"Canadian Agent" means Bank of America Canada, as
administrative agent under the Canadian Agreement, and its
successors and assigns in such capacity.
"Canadian Agreement" means that certain Credit Agreement
dated the Closing Date among Canadian Borrower, Canadian Agent and
Lenders, as it may be amended, supplemented, restated or otherwise
modified and in effect from time to time.
"Canadian Base Rate Loan" means a Canadian Loan which bears
interest at the Canadian US Dollar Base Rate.
"Canadian Borrower" means Celsius Energy.
"Canadian Dollar" or "C$" means the lawful currency of Canada.
"Canadian Dollar Eurodollar Loan" means a Canadian Loan that
bears interest at the Adjusted Canadian Dollar Eurodollar Rate.
"Canadian Dollar Eurodollar Rate" means, for any Canadian
Dollar Eurodollar Loan within a Borrowing and with respect to the
related Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/1000 of 1%) appearing on the
Dow Jones Market Service (formerly Telerate Access Service) Page
3740 (or any successor page) as the London interbank offered rate
for deposits in Canadian Dollars at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any
reason such rate is not available, then such offered rate shall be
otherwise independently determined by Canadian Agent from an
alternate, substantially similar independent source available to
Canadian Agent or shall be calculated by Canadian Agent by a
substantially similar methodology as that theretofore used to
determine such offered rate on Dow Jones Market Service, in the
London interbank eurodollar market for a period of time equal or
comparable to the related Interest Period and in an amount equal to
or comparable to the principal amount of the eurodollar portion to
which such Interest Period relates.
"Canadian Facility Maturity Date" means the date which is
five years and one day after the Conversion Date.
"Canadian Facility Usage" means, at the time in question, the
US Dollar Exchange Equivalent of the aggregate amount of Canadian
Loans, Canadian LC Obligations, and BA's outstanding at such time.
"Canadian Guarantor" means US Borrower.
"Canadian LC Issuer" means Bank of America Canada in its
capacity as the issuer of Letters of Credit under the Canadian
Agreement, and its successors in such capacity. Canadian Agent may,
with the consent of Canadian Borrower and the Lender in question,
appoint any Canadian Resident Lender hereunder as a Canadian LC
Issuer in place of or in addition to Bank of America Canada.
"Canadian LC Obligations" means, at the time in question, the
sum of all Matured Canadian LC Obligations plus the maximum amounts
which Canadian LC Issuer might then or thereafter be called upon to
advance under all Letters of Credit then outstanding under the
Canadian Agreement.
"Canadian LC Sublimit" means C $5,000,000.
"Canadian Loan Documents" means the Canadian Agreement, the
Canadian Notes, the Letters of Credit issued under the Canadian
Agreement, the LC Applications related thereto, the BA's, the
Guaranty executed by Canadian Guarantor, and all other agreements,
certificates, documents, instruments and writings at any time
delivered in connection herewith or therewith (exclusive of term
sheets and commitment letters).
"Canadian Loans" means the Canadian Revolving Loans, the
Canadian Term Loans into which such Revolving Loans may be converted
and the Competitive Bid Loans made under the Canadian Agreement.
"Canadian Maximum Credit Amount" means the Canadian Dollar
Exchange Equivalent of US $58,000,000 on the Closing Date; provided
that the Canadian Maximum Credit Amount may be increased up to US
$70,000,000 pursuant to Section 1.1(b) of the Canadian Agreement.
"Canadian Notes" means each Lender's "Canadian Note", as
defined in Section 1.1 of the Canadian Agreement, and the
Competitive Bid Notes issued under the Canadian Agreement.
"Canadian Obligations" means all Liabilities from time to
time owing by Canadian Borrower to any Lender Party under or
pursuant to any of the Canadian Loan Documents, including all
Canadian LC Obligations owing thereunder. "Canadian Obligation"
means any part of the Canadian Obligations.
"Canadian Prime Rate" means on any day a fluctuating rate of
interest per annum equal to the higher of (i) the rate of interest
per annum most recently announced by Bank of America Canada as its
reference rate for Canadian Dollar commercial loans made to a Person
in Canada; and (ii) Bank of America Canada's Discount Rate for
Bankers' Acceptances having a maturity of thirty days plus the
Applicable Margin. No Canadian Prime Rate charged by any Person
shall ever exceed the Highest Lawful Rate
"Canadian Prime Rate Loan" means a Canadian Loan that bears
interest at the Canadian Prime Rate.
"Canadian Resident Lender" means each Lender identified as
such on the signature pages to the Canadian Agreement or any
Assignment and Acceptance executed by a new Lender, each being a
Person that is not a non-resident of Canada for the purposes of the
Income Tax Act (Canada).
"Canadian Revolving Loans" has the meaning given it in
Section 1.1 of the Canadian Agreement.
"Canadian Revolving Period" means the period from and
including the Closing Date until the Conversion Date (or, if
earlier, the day on which the obligations of Lenders to make
Canadian Loans or the obligations of Canadian LC Issuer to issue
Letters of Credit under the Canadian Agreement have been terminated
or the Canadian Notes first become due and payable in full).
"Canadian Term Loan" has the meaning given it in Section 1.7
of the Canadian Agreement.
"Canadian Term Period" means the period from and including
the day immediately following the Conversion Date until and
including the Canadian Facility Maturity Date.
"Canadian US Dollar Base Rate" means for a day, the rate per
annum equal to the higher of (a) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (b) the rate of interest per
annum most recently established by Bank of America Canada as its
reference rate for US Dollar commercial loans made to a Person in
Canada. Any change in the Canadian US Dollar Base Rate due to a
change in the Bank of America Canada's reference rate shall be
effective on the effective date of such change. No Canadian US
Dollar Base Rate charged by any Person shall ever exceed the Highest
Lawful Rate.
"CBRS" means CBRS Inc., or its successor.
"Celsius Energy" means Celsius Energy Resources Ltd., a
Canadian corporation organized under the laws of Alberta.
"Change of Control" means the occurrence of any of the
following events: (i) any Person (or syndicate or group (a "Group")
of Persons which is deemed a "person" for the purposes of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended)
acquires more than fifty percent (50%) of the outstanding stock of
either Borrower having ordinary voting power (disregarding changes
in voting power based on the occurrence of contingencies) for the
election of directors; (ii) during any period of twelve successive
months a majority of the Persons who were directors of either
Borrower at the beginning of such period cease to be directors of
either Borrower; or (iii) such Person or Group succeeds in having
sufficient of its nominees elected to the board of directors of
either Borrower, such that such nominees, when added to any existing
director or remaining director remaining on the board of directors
after such election who is an Affiliate of such Person or Group,
will constitute a majority of such board of directors.
"Closing Date" means April 19, 1999.
"Companies' Creditors Arrangement Act (Canada)" means the
Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36,
including the regulations made and from time to time in force under
that Act.
"Competitive Bid" means (i) with respect to the US Agreement,
a response from any Lender to an Invitation to Bid, substantially in
the form of Exhibit J to the US Agreement and (ii) with respect to
the Canadian Agreement, a response from any Canadian Resident Lender
to an Invitation to Bid, substantially in the form of Exhibit K to
the Canadian Agreement.
"Competitive Bid Accept/Reject Letter" means (i) with respect
to the US Agreement, a notice sent by US Borrower to US Agent,
substantially in the form of Exhibit K to the US Agreement,
indicating its acceptance or rejection of Competitive Bids from
various Lenders and (ii) with respect to the Canadian Agreement, a
notice sent by Canadian Borrower to Canadian Agent, substantially in
the form of Exhibit L to the Canadian Agreement, indicating its
acceptance or rejection of Competitive Bids from various Lenders.
"Competitive Bid Interest Period" means, with respect to any
Competitive Bid Loan, a period from seven days or more as specified
in the Competitive Bid applicable thereto until, in the case of
Competitive Bid Loans made under the US Agreement, the last day of
the US Facility Commitment Period and, in the case of Competitive
Bid Loans made under the Canadian Agreement, the last day of the
Canadian Revolving Period.
"Competitive Bid Loan" means (i) with respect to the US
Agreement, a loan from a Lender to US Borrower pursuant to the
bidding procedure described in Section 1.7 of the US Agreement and
(ii) with respect to the Canadian Agreement, a loan from a Canadian
Resident Lender to Canadian Borrower pursuant to the bidding
procedure described in Section 1.9 of the Canadian Agreement.
"Competitive Bid Note" (i) with respect to the US Agreement,
a "Competitive Bid Note" as defined in Section 1.7 of the US
Agreement and (ii) with respect to the Canadian Agreement, a
"Competitive Bid Note" as defined in Section 1.9 of the Canadian
Agreement.
"Competitive Bid Rate" means, for any Competitive Bid Loan,
the fixed rate at which such Lender is willing to make such
Competitive Bid Loan indicated in its Competitive Bid. The
Competitive Bid Rate shall in no event, however, exceed the Highest
Lawful Rate.
"Competitive Bid Request" means (i) with respect to the US
Agreement, a request by US Borrower in the form of Exhibit H to the
US Agreement for Lenders to submit Competitive Bids and (ii) with
respect to the Canadian Agreement, a request by Canadian Borrower in
the form of Exhibit I to the Canadian Agreement for Canadian
Resident Lenders to submit Competitive Bids.
"Consolidated" refers to the consolidation of any Person, in
accordance with US GAAP, with its properly consolidated
subsidiaries. References herein to a Person's Consolidated
financial statements, financial position, financial condition,
liabilities, etc. refer to the consolidated financial statements,
financial position, financial condition, liabilities, etc. of such
Person and its properly consolidated subsidiaries.
"Consolidated Assets" means the total assets of US Borrower
and its Restricted Subsidiaries which would be shown as assets on a
Consolidated balance sheet of US Borrower and its Restricted
Subsidiaries prepared in accordance with US GAAP, after eliminating
all amounts properly attributable to minority interest, if any, in
the stock and surplus of the Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, total
interest expense, whether paid or accrued, including without
limitation all commissions, discounts and other fees and charges
owed with respect to Letters of Credit.
"Consolidated Net Income" means, for any period, US
Borrower's and its properly Consolidated subsidiaries' gross
revenues for such period, including any cash dividends or
distributions actually received from any other Person during such
period, minus US Borrower's and such subsidiaries' expenses and
other proper charges against income (including taxes on income, to
the extent imposed), determined on a Consolidated basis after
eliminating earnings or losses attributable to outstanding minority
interests and excluding the net earnings of any Person other than
such a subsidiary in which US Borrower or any of such subsidiaries
has an ownership interest.
"Consolidated Net Worth" means as to US Borrower and its
properly Consolidated subsidiaries at any time, the remainder of all
Consolidated assets of US Borrower and such subsidiaries which would
be shown on their Consolidated balance sheet prepared as of such
time in accordance with GAAP, minus the sum of (a) all amounts which
would be shown on such balance sheet as minority interests in any
such subsidiaries, plus (b) all Consolidated Liabilities of US
Borrower and such subsidiaries which would be shown on such balance
sheet, adjusted by treating as Liabilities rather than equity all
capital stock and other equity securities which US Borrower or any
such subsidiary would be required to purchase, redeem or otherwise
acquire at the election of any holder thereof, upon the passage of
time, or upon the occurrence of any contingency (other than the
voluntary election of US Borrower or any such subsidiary to make
such purchase, redemption or acquisition).
"Continuation" (i) as used in the US Agreement shall refer to
the continuation pursuant to Section 1.3 thereof of a Eurodollar
Loan as a Eurodollar Loan from one Interest Period to the next
Interest Period and (ii) as used in the Canadian Agreement shall
refer to the continuation pursuant to Section 1.3 thereof of a
Eurodollar Loan as a Eurodollar Loan from one Interest Period to the
next Interest Period or a rollover of a Banker's Acceptance at
maturity.
"Continuation/Conversion Notice" means (i) with respect to
the US Agreement, a written or telephonic request, or a written
confirmation, made by Borrower which meets the requirements of
Section 1.3 of the US Agreement, and (ii) with respect to the
Canadian Agreement, a written or telephonic request, or a written
confirmation, made by the applicable Canadian Borrower which meets
the requirements of Section 1.3 of the Canadian Agreement.
"Conversion" (i) as used in the US Agreement shall refer to a
conversion pursuant to Section 1.3 or Article III of one Type of US
Loan into another Type of US Loan and (ii) as used in the Canadian
Agreement shall refer to a conversion pursuant to Section 1.3 or
Article III of one Type of Canadian Advance into another Type of
Canadian Advance.
"Conversion Date" means the date which is 364 days after the
Closing Date, or such later day to which the Conversion Date is
extended pursuant to Section 1.6 of the Canadian Agreement.
"DBRS" means Dominion Bond Rating Service Limited, or its
successor.
"Debt to Capitalization Ratio" means, at the time of
determination, the ratio of (a) Funded Debt to (b) the sum of the
Funded Debt plus Shareholders' Equity.
"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 time in question (i) with respect
to any US Base Rate Loan, the rate one percent (1.0%) above the US
Base Rate then in effect, (ii) with respect to any US Dollar
Eurodollar Loan, the rate one percent (1%) above the Adjusted US
Dollar Eurodollar Rate then in effect for such Loan, (iii) with
respect to any Canadian Prime Rate Loan, the rate one percent (1.0%)
above the Canadian Prime Rate then in effect for such Loan, (iv)
with respect to any Canadian Base Rate Loan, the rate one percent
(1%) above the Canadian US Dollar Base Rate then in effect for such
Loan, (v) with respect to any Canadian Dollar Eurodollar Loan, the
rate one percent (1%) above the Adjusted Canadian Dollar Eurodollar
Rate then in effect for such Loan; and (vi) with respect to any
Competitive Bid Loan, the rate one percent (1%) above the
Competitive Bid Rate then in effect for such Loan. No Default Rate
charged by any Person shall ever exceed the Highest Lawful Rate.
"Depository Bills and Notes Act (Canada)" means the
Depository Bills and Notes Act (Canada), R.S.C. 1998, c. 13,
including the regulations made and, from time to time, in force
under that Act.
"Disclosure Schedule" means (i) with respect to the US
Agreement, Schedule 1 thereto, and (ii) with respect to the Canadian
Agreement, Schedule 1 thereto.
"Discount Proceeds" means, in respect of each Bankers'
Acceptance, funds in an amount which is equal to:
((Face Amount) divided by (1 + (Rate x Term)) divided by 365
(where "Face Amount" is the principal amount of the Bankers'
Acceptance being purchased, "Rate" is the BA Discount Rate divided
by 100 and "Term" is the number of days in the term of the Bankers'
Acceptance.)
"Distribution" means (a) any dividend or other distribution
made by a Restricted Person on or in respect of any stock,
partnership interest, or other equity interest in such Restricted
Person (including any option or warrant to buy such an equity
interest), or (b) any payment made by a Restricted Person to
purchase, redeem, acquire or retire any stock, partnership interest,
or other equity interest in such Restricted Person (including any
such option or warrant).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
below its name on its signature page to the Canadian Agreement or
the US Agreement, or such other office as such Lender may from time
to time specify to any Borrower and Agent; with respect to LC
Issuer, the office, branch, or agency through which it issues
Letters of Credit; and, with respect to Agent, the office, branch,
or agency through which it administers this Agreement.
"Eligible Transferee" means a Person which either (a) is a
Lender or an Affiliate of a Lender, or (b) is consented to as an
Eligible Transferee by US Agent or Canadian Agent, as applicable,
and, so long as no Default or Event of Default is continuing, by the
Borrowers, in each case which consent will not be unreasonably
withheld; provided that the no consent shall be required for a
Person to be an "Eligible Transferee" for purposes of Section
10.6(d) of the US Agreement and Section 10.6(d) of the Canadian
Agreement.
"Environmental Laws" means any and all Laws relating to the
environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment
including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
"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 Affiliate" means US Borrower and all members of a
controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control that, together
with US Borrower, are treated as a single employer under Section 414
of the Internal Revenue Code.
"ERISA Plan" means any employee pension benefit plan subject
to Title IV of ERISA maintained by any ERISA Affiliate with respect
to which any Restricted Person has a fixed or contingent liability.
"Eurodollar Interest Period" means, with respect to each
particular Eurodollar Loan in a Borrowing, the period specified in
the Borrowing Notice or Continuation/Conversion Notice applicable
thereto, beginning on and including the date specified in such
Borrowing Notice or Continuation/Conversion Notice (which must be a
Business Day), and ending one, two, three, or six months thereafter,
as the applicable Borrower may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Business Day; (b) any Interest Period which begins on the last
Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day in a
calendar month; and (c) notwithstanding the foregoing, any Interest
Period which would otherwise end after the last day of the US
Facility Commitment Period or the Canadian Revolving Period shall
end on the last day of the US Facility Commitment Period or the
Canadian Revolving Period (or, if the last day of such period is not
a Business Day, on the next preceding Business Day).
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurodollar
Lending Office" below its name on the signature page hereto (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to Borrowers, Canadian Agent, and US Agent.
"Eurodollar Loan" means any Canadian Dollar Eurodollar Loan
and any US Dollar Eurodollar Loan.
"Event of Default" means (i) with respect to the US Agreement
the meaning given to such term in Section 8.1 thereof and (ii) with
respect to the Canadian Agreement the meaning given to such term in
Section 8.1 thereof.
"Exchange Equivalent" in respect of one currency (the
"Original Currency"), being Canadian Dollars or U.S. Dollars, as the
case may be, means, at the date of determination, the amount of
currency expressed in the other such currency necessary to purchase,
based on the Noon Rate on such date, the specified amount of the
Original Currency on such date.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of one
percent) 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 Dallas, Texas on the Business Day
next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so published
for any day, the Federal Funds Rate for such day shall be the
average rate quoted to US Agent on such day on such transactions as
determined by US Agent.
"Fiscal Quarter" means a three-month period ending on March
31, June 30, September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December
31 of any year.
"Five-Year Commitment Fee Rate" means, on any date, the
number of Basis Points per annum set forth below based on the
Applicable Rating Level on such date:
Applicable Applicable Five Year Commitment
Rating Level Fee Rate
Level I 8.5
Level II 10.0
Level III 12.5
Level IV 15.0
Level V 17.5
Level VI 25.0
Level VII 30.0
"Funded Debt" means the aggregate of the following
Indebtedness of US Borrower and its Subsidiaries, after elimination
of intercompany items and other Consolidation in accordance with
GAAP: (a) Indebtedness (including the Obligations) for borrowed
money, regardless of maturity, (b) Indebtedness constituting an
obligation to pay the deferred purchase price of property, (c)
Indebtedness evidenced by a bond, debenture, note or similar
instrument, and (d) Indebtedness which is due and payable at the
time in question, with respect to letters of credit or reimbursement
agreements therefor.
"Governmental Authority" means any domestic or foreign,
national, federal, provincial, state, municipal or other local
government or body and any division, agency, ministry, commission,
board or authority or any quasi-governmental or private body
exercising any statutory, regulatory, expropriation or taxing
authority under the authority of any of the foregoing, and any
domestic, foreign or international judicial, quasi-judicial,
arbitration or administrative court, tribunal, commission, board or
panel acting under the authority of any of the foregoing.
"Hazardous Materials" means any substances regulated under
any Environmental Law, whether as pollutants, contaminants, or
chemicals, or as industrial, toxic or hazardous substances or
wastes, or otherwise.
"Hedging Contract" means (a) any agreement providing for
options, swaps, floors, caps, collars, forward sales or forward
purchases involving interest rates, commodities or commodity prices,
equities, currencies, bonds, or indexes based on any of the
foregoing, (b) any option, futures or forward contract traded on an
exchange, and (c) any other derivative agreement or other similar
agreement or arrangement.
"Highest Lawful Rate" means, with respect to each Lender
Party to whom Obligations are owed, the maximum nonusurious rate of
interest that such Lender Party is permitted under applicable Law to
contract for, take, charge, or receive with respect to such
Obligations. All determinations herein of the Highest Lawful Rate,
or of any interest rate determined by reference to the Highest
Lawful Rate, shall be made separately for each Lender Party as
appropriate to assure that the Loan Documents are not construed to
obligate any Person to pay interest to any Lender Party at a rate in
excess of the Highest Lawful Rate applicable to such Lender Party.
"Income Tax Act (Canada)" means the Income Tax Act, S.C.
1970-71-72, c. 63, including the regulations made and, from time to
time, in force under that Act.
"Indebtedness" of any Person means Liabilities in any of the
following categories:
(a) Liabilities for borrowed money,
(b) Liabilities 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) Liabilities evidenced by a bond, debenture, note or
similar instrument,
(d) Liabilities arising under conditional sales or other
title retention agreements or under leases capitalized in accordance
with US GAAP, but excluding customary oil, gas or mineral leases,
(e) Liabilities with respect to payments received in
consideration of oil, gas, or other minerals yet to be acquired or
produced at the time of payment (including obligations under
"take-or-pay" contracts to deliver gas in return for payments
already received and the undischarged balance of any production
payment created by such Person or for the creation of which such
Person directly or indirectly received payment);
(f) Liabilities under Hedging Contracts,
(g) Liabilities with respect to letters of credit or
applications or reimbursement agreements therefor, or
(h) Liabilities under direct or indirect guaranties of
Liabilities of any Person or constituting obligations to purchase or
acquire or to otherwise protect or insure a creditor against loss in
respect of Indebtedness of the types described in paragraphs (a)
through (g) above of any Person (such as obligations under working
capital maintenance agreements, agreements to keep-well, or
agreements to purchase debt, assets, goods, securities or services,
but excluding endorsements in the ordinary course of business of
negotiable instruments in the course of collection),
provided, however, that the "Indebtedness" of any Person shall not
include Liabilities that were incurred by such Person on ordinary
trade terms to vendors, suppliers, or other Persons providing goods
and services for use by such Person in the ordinary course of its
business, unless and until such Liabilities are outstanding more
than 90 days past the original invoice or billing date therefor.
Any Indebtedness owed by a partnership shall be deemed Indebtedness
of any partner in such partnership to the extent such partner has
any liability of any kind therefor.
"Initial Financial Statements" means the audited annual
Consolidated financial statements of US Borrower dated as of
December 31, 1997 and December 31, 1998.
"Interest Act (Canada)" means the Interest Act, R.S.C. 1985,
c. I-15, including the regulations made and, from time to time, in
force under that Act.
"Interest Payment Date" means (a) with respect to each US
Base Rate Loan, Canadian US Dollar Base Rate Loan, and Canadian
Prime Rate Loan, the last day of each March, June, September and
December beginning June 30, 1999, and (b) with respect to each
Eurodollar Loan, the last day of the Eurodollar Interest Period that
is applicable thereto and, if such Eurodollar Interest Period is six
months in length, the date specified by Agent which is approximately
three months after such Eurodollar Interest Period begins; provided
that the last day of each calendar month shall also be an Interest
Payment Date for each such Loan so long as any Event of Default
exists under Section 8.1 (a) or (b).
"Interest Period" means (i) with respect to any Eurodollar
Loan, the related Eurodollar Interest Period and (ii) with respect
to any Competitive Bid Loan, the related Competitive Bid Interest
Period.
"Internal Revenue Code" means the United States Internal
Revenue Code of 1986, as amended from time to time and any successor
statute or statutes.
"Investment" means any investment made directly or
indirectly, in any Person, whether by acquisition of shares of
capital stock, indebtedness or other obligations or securities or by
loan, advance, capital contribution or otherwise and whether made in
cash, by the transfer of property, or by any other means.
"Invitation to Bid" means (i) with respect to the US
Agreement, an invitation by US Agent to each Lender, substantially
in the form of Exhibit I thereto, inviting such Lender to submit
Competitive Bids in response to a Competitive Bid Request under the
US Agreement, and (ii) with respect to the Canadian Agreement, an
invitation by Canadian Agent to each Lender, substantially in the
form of Exhibit J thereto, inviting such Lender to submit
Competitive Bids in response to a Competitive Bid Request under the
Canadian Agreement.
"Judgment Interest Act (Alberta)" means the Judgment Interest
Act, S.A. 1984 c. J-O.5, including the regulations made and, from
time to time, in force under that Act.
"Law" means any statute, law, regulation, ordinance, rule,
treaty, judgment, order, decree, permit, concession, franchise,
license, agreement or other governmental restriction of the United
States or Canada or any state, province or political subdivision
thereof or of any foreign country or any department, province or
other political subdivision thereof.
"LC Application" means any application for a Letter of Credit
hereafter made by any Borrower to US LC Issuer or Canadian LC Issuer.
"LC Collateral" (i) as used in the US Agreement, has the
meaning given to such term in Section 2.6 of the US Agreement and
(ii) as used in the Canadian Agreement, has the meaning given such
term in Section 2.11 of the Canadian Agreement.
"Lender Parties" means US Agent, Canadian Agent, US LC
Issuer, Canadian LC Issuer, and all Lenders.
"Lenders" means each signatory to the US Agreement and the
Canadian Agreement (other than any Borrower), including NationsBank,
N.A. and Bank of America Canada in their capacity as a Lender
hereunder rather than as US Agent or Canadian Agent and US LC Issuer
or Canadian LC Issuer, respectively, and the successors of each such
party as holder of a US Note or a Canadian Note.
"Lenders Schedule" means Annex II to the US Agreement and
Annex II to the Canadian Agreement which are the same.
"Letter of Credit" means any letter of credit issued by US LC
Issuer under the US Agreement or by Canadian LC Issuer under the
Canadian Agreement at the application of any Borrower.
"Liabilities" means, as to any Person, all indebtedness,
liabilities and obligations of such Person, whether matured or
unmatured, liquidated or unliquidated, primary or secondary, direct
or indirect, absolute, fixed or contingent, and whether or not
required to be considered pursuant to US GAAP.
"Lien" means, with respect to any property or assets, any
lien, mortgage, security interest, pledge, deposit, production
payment, rights of a vendor under any title retention or conditional
sale agreement or lease substantially equivalent thereto, tax lien,
mechanic's or materialman's lien, or any other charge or encumbrance
for security purposes, whether arising by Law or agreement or
otherwise, but excluding any right of offset. "Lien" also means any
filed financing statement, any registration of a pledge (such as
with an issuer of uncertificated securities), or any other
arrangement or action which would serve to perfect a Lien described
in the preceding sentence, regardless of whether such financing
statement is filed, such registration is made, or such arrangement
or action is undertaken before or after such Lien exists.
"Loan Documents" means, collectively, the Canadian Loan
Documents and the US Loan Documents.
"Loans" means, collectively, the Canadian Loans and the US
Loans.
"Majority Lenders" means Lenders whose aggregate Percentage
Shares exceed sixty-six and two thirds percent (66 2/3%).
"Material Adverse Effect" means any event which would
reasonably be expected to have a material and adverse effect upon
(a) US Borrower's Consolidated financial condition, (b) US
Borrower's Consolidated operations, properties or prospects,
considered as a whole, (c) US Borrower's ability to timely pay the
Obligations, or (d) the enforceability of the material terms of any
Loan Documents.
"Matured Canadian LC Obligations" means all amounts paid by
Canadian LC Issuer on drafts or demands for payment drawn or made
under or purported to be under any Letter of Credit issued under the
Canadian Agreement and all other amounts due and owing to Canadian
LC Issuer under any LC Application for any such Letter of Credit, to
the extent the same have not been repaid to Canadian LC Issuer (with
the proceeds of Loans or otherwise).
"Matured US LC Obligations" means all amounts paid by US LC
Issuer on drafts or demands for payment drawn or made under or
purported to be under any Letter of Credit issued under the US
Agreement and all other amounts due and owing to US LC Issuer under
any LC Application for any such Letter of Credit, to the extent the
same have not been repaid to US LC Issuer (with the proceeds of
Loans or otherwise).
"Maximum Canadian Drawing Amount" means at the time in
question the sum of the maximum amounts which Canadian LC Issuer
might then or thereafter be called upon to advance under all Letters
of Credit issued pursuant to the Canadian Agreement which are then
outstanding.
"Maximum US Drawing Amount" means at the time in question the
sum of the maximum amounts which US LC Issuer might then or
thereafter be called upon to advance under all Letters of Credit
issued pursuant to the US Agreement which are then outstanding.
"Moody's" means Moody's Investor Service, Inc., or its
successor.
"Net Proceeds" means with respect to any Bankers' Acceptance,
the Discount Proceeds less the amount equal to the applicable
Stamping Fee Rate multiplied by the face amount of such Bankers'
Acceptance..
"Non-resident Lender" means any Lender which is not a
Canadian Resident Lender, and shall initially mean each Lender
identified as such on the signature pages to the Canadian Agreement
or thereafter on any Assignment and Acceptance.
"Noon Rate" means, in relation to the conversion of one
currency into another currency, the rate of exchange for such
conversion as quoted by the Bank of Canada (or, if not so quoted,
the spot rate of exchange quoted for wholesale transactions made by
Canadian Agent at Toronto, Ontario at approximately noon (Toronto
local time)).
"Notes" mean, collectively, the Canadian Notes and the US Notes.
"Obligations" means, collectively, the US Obligations and the
Canadian Obligations.
"Offer of Extension" means (a) with respect to the Canadian
Agreement, a written offer by Canadian Agent, for and on behalf of
Required Lenders, to Canadian Borrower to extend the Canadian
Facility Revolving Period to a date 364 days from acceptance by
Canadian Borrower of such offer, and setting forth, if applicable,
the terms and conditions on which such extension is offered by the
Lenders and as may be accepted by Canadian Borrower, and (b) with
respect to the US Agreement, a written offer by US Agent, for and on
behalf of Required Lenders, to US Borrower to extend the Tranche B
Revolving Period to a date 364 days from acceptance by US Borrower
of such offer, and setting forth, if applicable, the terms and
conditions on which such extension is offered by the Lenders and as
may be accepted by US Borrower.
"Percentage Share" means
(a) under the US Agreement with respect to any Lender (i)
when used in Article I or Article II of the US Agreement, in any
Borrowing Notice thereunder or when no US Loans are outstanding, the
percentage set forth opposite such Lender's name on the Lenders
Schedule as modified by assignments of a Lender's rights and
obligations under the US Agreement made by or to such Lender in
accordance with the terms of the US Agreement or pursuant to Section
1.1(f) of the US Agreement, and (ii) when used otherwise, the
percentage obtained by dividing (x) the sum of the unpaid principal
balance of such Lender's US Loans and such Lender's Percentage Share
of the US LC Obligations, by (y) the sum of the aggregate unpaid
principal balance of all US Loans at such time plus the aggregate
amount of all US LC Obligations outstanding at such time; and
(b) under the Canadian Agreement with respect to any
Lender (i) when used in Article I or Article II of the Canadian
Agreement, in any Borrowing Notice thereunder or when no Canadian
Advances are outstanding, the percentage set forth opposite such
Lender's name on the Lenders Schedule as modified by assignments of
a Lender's rights and obligations under the Canadian Agreement made
by or to such Lender in accordance with the terms of the Canadian
Agreement or pursuant to Section 1.1(b) of the Canadian Agreement,
and (ii) when used otherwise, the percentage obtained by dividing
(x) the sum of the unpaid principal balance of such Lender's
Canadian Advances and such Lender's Percentage Share of the Canadian
LC Obligations, by (y) the sum of the aggregate unpaid principal
balance of all Canadian Advances at such time plus the aggregate
amount of all Canadian LC Obligations outstanding at such time.
"Permitted Liens" means:
(a) operators' liens under customary operating
agreements, statutory Liens for taxes, statutory mechanics' and
materialmen's Liens, and other similar statutory Liens, provided
such Liens secure only Liabilities which are not delinquent or which
are being contested as provided in Section 6.7 of the US Agreement
or Section 6.7 of the Canadian Agreement;
(b) Liens on any oil and gas properties which neither
have developed reserves (producing or non-producing) properly
attributable thereto nor are otherwise held under lease by
production of other reserves;
(c) Liens on the Restricted Persons' office facilities;
(d) Liens on property securing non-recourse debt
permitted under Section 7.1(f) of the US Agreement and Section
7.1(f) of the Canadian Agreement which is acquired with proceeds or
developed with proceeds of the non-recourse debt; and
(e) Liens to secure the Obligations
provided that nothing in this definition shall in and of itself
constitute or be deemed to constitute an agreement or acknowledgment
by the US Agent or the Canadian Agent or any Lender that the
Indebtedness subject to or secured by any such Permitted Lien ranks
(apart from the effect of any Lien included in or inherent in any
such Permitted Liens) in priority to the Obligations.
"Person" means an individual, corporation, partnership,
limited liability company, association, joint stock company, trust
or trustee thereof, estate or executor thereof, unincorporated
organization or joint venture, Tribunal, or any other legally
recognizable entity.
"Rating Agency" means any 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 an Offer of Extension" means (a) with respect to
the Canadian Agreement, a written request made by Canadian Borrower
to the Lenders to have Required Lenders issue an offer to Canadian
Borrower extending the Canadian Revolving Period for a further 364
days, and (b) with respect to the US Agreement, a written request
made by US Borrower to the Lenders to have Required Lenders issue an
offer to US Borrower extending the Tranche B Revolving Period for a
further 364 days.
"Required Lenders" means Lenders whose aggregate Percentage
Shares equal or exceed fifty percent (50%).
"Reserve Requirement" means, at any time, the maximum rate
at which reserves (including any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System of the United States of America (or any successor) by
member banks of such Federal Reserve System against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member
banks with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted US Dollar Eurodollar
Rate or the Adjusted Canadian Dollar Eurodollar Rate is to be
determined, or (b) any category of extensions of credit or other
assets which include US Dollar Eurodollar Loans or Canadian Dollar
Eurodollar Loans.
"Restricted Person" means any of US Borrower and each
Restricted Subsidiary.
"Restricted Subsidiary" means Canadian Borrower and any other
Subsidiary of US Borrower that is not an Unrestricted Subsidiary.
"S & P" means Standard & Poor's Ratings Services (a division
of McGraw Hill Companies, Inc.), or its successor.
"Schedule I BA Reference Banks" means the Lenders listed in
Schedule I to the Bank Act (Canada) as are, at such time, designated
by Canadian Agent, with the prior consent of Canadian Borrower
(acting reasonably), as the Schedule I BA reference Banks.
"Schedule II BA Reference Banks" means the Lenders listed in
Schedule II to the Bank Act (Canada) as are, at such time,
designated by Canadian Agent, with the prior consent of Canadian
Borrower (acting reasonably), as the Schedule II BA Reference Banks.
"Shareholders' Equity" means the remainder of (i) US
Borrower's Consolidated assets minus (ii) the sum of (x) US
Borrower's Consolidated liabilities plus (y) all treasury stock of
US Borrower and its Subsidiaries.
"Stamping Fee Rate" means with respect to any Bankers'
Acceptance accepted by any Canadian Resident Lender at any time, the
Applicable Margin then in effect; provided that if an Event of
Default has occurred and is continuing, the Stamping Fee Rate shall
be increased by one hundred (100) Basis Points.
"Subsidiary" means, with respect to any Person, any
corporation, association, partnership, limited liability company,
joint venture, or other business or corporate entity, enterprise or
organization which is directly or indirectly (through one or more
intermediaries) controlled by or owned fifty percent or more by such
Person, provided that (a) associations, joint ventures or other
relationships (i) which are established pursuant to a standard form
operating agreement or similar agreement or which are partnerships
for purposes of federal income taxation only, (ii) which are not
corporations or partnerships (or subject to the Uniform Partnership
Act) under applicable state Law, and (iii) whose businesses are
limited to the exploration, development and operation of oil, gas or
mineral properties, transportation and related facilities and
interests owned directly by the parties in such associations, joint
ventures or relationships, shall not be deemed to be "Subsidiaries"
of such Person and (b) associations, joint ventures or other
relationships (i) which are not corporations or partnerships under
applicable provincial Law, and (ii) whose businesses are limited to
the exploration, development and operation of oil, gas or mineral
properties, transportation and related facilities and interests
owned directly by the parties in such associations, joint ventures
or relationships, shall not be deemed to be "Subsidiaries" of such
Person.
"Termination Event" means (a) the occurrence with respect to
any ERISA Plan of (i) a reportable event described in Sections
4043(b)(5) or (6) of ERISA or (ii) 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 ERISA Affiliate 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.
"Total Capitalization" means the sum (without duplication) of
(i) the Consolidated Total Funded Debt of US Borrower plus (ii) the
Consolidated Shareholder's Equity of US Borrower.
"Total Funded Debt" means Liabilities referred to in clauses
(a), (b), (c), (d), and (e) of the definition of "Indebtedness".
"Tranche A Facility Usage" means, at the time in question,
the aggregate amount of Tranche A Loans and existing US LC
Obligations outstanding at such time under the US Agreement.
"Tranche A Loan" has the meaning given it in Section 1.1(a)
of the US Agreement.
"Tranche A Maximum Credit Amount" means $150,000,000;
provided that the Tranche A Maximum Credit Amount may be increased
up to $180,000,000 pursuant to Section 1.1(f) of the US Agreement.
"Tranche A Note" has the meaning given it in Section 1.1(a)
of the US Agreement.
"Tranche B Conversion Date" means the date which is 364 days
after the Closing Date, or such later day to which the Tranche B
Conversion Date is extended pursuant to Section 1.1 of the US
Agreement.
"Tranche B Facility Usage" means, at the time in question,
the aggregate amount of Tranche B Loans outstanding at such time
under the US Agreement.
"Tranche B Loan" has the meaning given it in Section 1.1(b)
of the US Agreement.
"Tranche B Maturity Date" means the date which is two (2)
years after the Tranche B Conversion Date.
"Tranche B Maximum Credit Amount" means $42,000,000; provided
that the Tranche B Maximum Credit Amount may be increased up to
$50,000,000 pursuant to Section 1.1(f) of the US Agreement.
"Tranche B Note" has the meaning given it in Section 1.1(b)
of the US Agreement.
"Tranche B Revolving Period" means the period from the
Closing Date until the Tranche B Conversion Date.
"Tribunal" means any government, any arbitration panel, any
court or any governmental department, commission, board, bureau,
agency or instrumentality of the United States of America or Canada
or any state, province, commonwealth, nation, territory, possession,
county, parish, town, township, village or municipality, whether now
or hereafter constituted or existing.
"Type" means (i) with respect to any US Loans, the
characterization of such US Loans as either US Base Rate Loans or US
Dollar Eurodollar Loans and (ii) with respect to any Canadian
Advances, the characterization of such Canadian Advances as Canadian
Base Rate Loans, Canadian Prime Rate Loans, US Dollar Eurodollar
Loans, Canadian Dollar Eurodollar Loans or Bankers' Acceptances.
"Unrestricted Subsidiary" means any corporation, association,
partnership, limited liability company, joint venture, or other
business or corporate entity, enterprise or organization in which
US Borrower does not presently own an interest (directly or
indirectly) which hereafterbecomes a Subsidiary of US Borrower and
which, within 90 days thereafter, is designated as an Unrestricted
Subsidiary by USBorrower to US Agent, provided that US Borrower may
not designate asan Unrestricted Subsidiary any Subsidiary in which it
has made anInvestment of more than US $25,000,000 (directly or indirectly)
by any means other than newly issued stock or treasury stock of US
Borrower, which may be used to make an Investment in Unrestricted
Subsidiaries without limit and provided further that in the event
the book value of the assets of any Unrestricted Subsidiary at any
time exceeds US $25,000,000, such Subsidiary shall cease to be an
Unrestricted Subsidiary and shall automatically become a Restricted
Person.
"Utilization Fee Rate" means, on any date, the number of
Basis Points per annum set forth below based on the Applicable
Rating Level on such date:
Applicable Applicable Utilization
Rating Level Fee Rate
Level I 10.0
Level II 10.0
Level III 15.0
Level IV 15.0
Level V 20.0
Level VI 20.0
Level VII 20.0
"US Account" means an account established by Canadian Agent
in New York into which funds to be advanced to Canadian Borrower by
Lenders in US Dollars and funds to be paid by Canadian Borrower to
Lenders in US Dollars will be deposited.
"US Agent" means NationsBank, N.A., as administrative agent,
under the US Agreement and its successors and assigns in such
capacity.
"US Agreement" means that certain Credit Agreement of even
date herewith among US Borrower, Agent and the Lenders, as it may be
amended, supplemented, restated or otherwise modified and in effect
from time to time.
"US Base Rate" means, for any day, the rate per annum equal
to the higher of (a) the Federal Funds Rate for such day plus
one-half of one percent (0.5%) and (b) the US Reference Rate for
such day. Any change in the US Base Rate due to a change in the US
Reference Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the US Reference Rate or Federal
Funds Rate. No US Base Rate charged by any Person shall ever exceed
the Highest Lawful Rate.
"US Base Rate Loan" means a US Loan made in US Dollars which
bears interest at the US Base Rate.
"US Borrower" means Questar Market Resources, Inc., a Utah
corporation.
"US Dollar" or "US $" means the lawful currency of the United
States of America.
"US Dollar Equivalent" means, with respect to an amount
denominated in Canadian Dollars, the amount of US Dollars required
to purchase the relevant stated amount of Canadian Dollars on the
date of determination.
"US Dollar Eurodollar Loan" means a US Loan or a Canadian
Loan, in each case, which bears interest at the Adjusted US Dollar
Eurodollar Rate.
"US Dollar Eurodollar Rate" means, for any US Dollar
Eurodollar Loan within a Borrowing and with respect to the related
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/1000 of 1%) appearing on the Dow Jones
Market Service (formerly Telerate Access Service) Page 3750 (or any
successor page) as the London interbank offered rate for deposits in
US Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is
not available, the term "US Dollar Eurodollar Rate" shall mean, for
any US Dollar Eurodollar Loan within a Borrowing and with respect to
the related Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/1000 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits of US Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/1000 of 1%).
"US Facility Commitment Period" means the period from and
including the Closing Date until the US Facility Maturity Date (or,
if earlier, the day on which the obligations of Lenders to make US
Loans hereunder or the obligations of US LC Issuer to issue Letters
of Credit hereunder have been terminated or the US Notes first
become due and payable in full).
"US Facility Maturity Date" means April 19, 2004.
"US Facility Usage" means, at the time in question, the
aggregate amount of US Loans and existing US LC Obligations
outstanding at such time under the US Agreement.
"US GAAP" means those generally accepted accounting
principles and practices which are recognized as such from time to
time by the Financial Accounting Standards Board (or any generally
recognized successor) and which, in the case of US Borrower and its
Consolidated Subsidiaries, are applied for all periods after the
Closing Date in a manner consistent with the manner in which such
principles and practices were applied to the Initial Financial
Statements.
"US LC Issuer" means NationsBank, N.A. in its capacity as the
issuer of Letters of Credit under the US Agreement, and its
successors in such capacity.
"US LC Obligations" means, at the time in question, with
respect to the US Agreement, the sum of all Matured US LC
Obligations plus the maximum amounts which US LC Issuer might then
or thereafter be called upon to advance under all Letters of Credit
then outstanding.
"US LC Sublimit" means US $8,000,000.
"US Loans" means the Tranche A Loans, the Tranche B Loans and
Competitive Bid Loans made under the US Agreement.
"US Loan Documents" means the US Agreement, the US Notes
issued under the US Agreement, the Letters of Credit issued under
the US Agreement, the LC Applications related thereto, and all other
agreements, certificates, documents, instruments and writings at any
time delivered in connection herewith or therewith (exclusive of
term sheets and commitment letters).
"US Maximum Credit Amount" means the amount of US
$192,000,000; provided that the US Maximum Credit Amount may be
increased up to US $230,000,000 pursuant to Section 1.1(f) of the US
Agreement.
"US Notes" means the Tranche A Notes, the Tranche B Notes and
the Competitive Bid Notes issued under the US Agreement.
"US Obligations" means all Liabilities from time to time
owing by any Restricted Person to any Lender Party under or pursuant
to any of the US Loan Documents, including all US LC Obligations
owing thereunder. "US Obligation" means any part of the US
Obligations.
"US Reference Rate" means the per annum rate of interest
established from time to time by NationsBank, N.A. as its prime
rate, which rate may not be the lowest rate of interest charged by
NationsBank, N.A. to its customers.
"Withholding Tax" has the meaning given it in Section 3.2(d)
of the Canadian Agreement.
US Schedules and Exhibits
SCHEDULE 1
DISCLOSURE SCHEDULE
EXHIBIT A-1
PROMISSORY NOTE
US$ _______________ ___________, 1999
FOR VALUE RECEIVED, the undersigned, Questar Market
Resources, Inc., a Utah corporation (herein called "Borrower"),
hereby promises to pay to the order of
(herein called "Lender"), the principal
sum of
Dollars (US$ ), or, if greater
or less, the aggregate unpaid principal amount of the Tranche A
Loans made under this Note by Lender to Borrower pursuant to the
terms of the Credit Agreement (as hereinafter defined), 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 offices of US
Agent under the Credit Agreement, 901 Main Street, Dallas, Texas or
at such other place within Dallas County, Texas, as from time to
time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain US
Credit Agreement of even date herewith among Borrower, NationsBank,
N.A., individually and as administrative agent ("US Agent"), and the
lenders (including Lender) referred to therein (herein, as from time
to time supplemented, amended or restated, called the "Credit
Agreement"), and is a "Tranche A Note" as defined therein and (b) is
subject to the terms and provisions of the Credit Agreement, which
contains provisions for payments and prepayments hereunder and
acceleration of the maturity hereof upon the happening of certain
stated 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 defined herein.
The principal amount of this Note, together with all interest
accrued hereon, shall be due and payable in full on the US Facility
Maturity Date.
Tranche A Loans that are US Base Rate Loans (exclusive of any
past due principal or interest) from time to time outstanding shall
bear interest on each day outstanding at the US Base Rate in effect
on such day; provided that if an Event of Default has occurred and
is continuing, US Base Rate Loans shall bear interest on each day
outstanding at the applicable Default Rate in effect on such day.
On each Interest Payment Date Borrower shall pay to the holder
hereof all unpaid interest which has accrued on the US Base Rate
Loans to but not including such Interest Payment Date. Each Tranche
A Loan that is a US Dollar Eurodollar Loan (exclusive of any past
due principal or interest) shall bear interest on each day during
the related Interest Period at the related Adjusted US Dollar
Eurodollar Rate in effect on such day; provided that if an Event of
Default has occurred and is continuing, such US Dollar Eurodollar
Loan shall bear interest on each day outstanding at the applicable
Default Rate in effect on such day. On each Interest Payment Date
relating to such US Dollar Eurodollar Loan, Borrower shall pay to
the holder hereof all unpaid interest which has accrued on such US
Dollar Eurodollar Loan to but not including such Interest Payment Date.
All past due principal of and past due interest on the Loans
shall bear interest on each day outstanding at the applicable
Default Rate in effect on such day, and such interest shall be due
and payable daily as it accrues. Notwithstanding the foregoing
provisions of this paragraph: (a) this Note shall never bear
interest in excess of the Highest Lawful Rate, and (b) if at any
time the rate at which interest is payable on this Note is limited
by the Highest Lawful Rate (by the foregoing subsection (a) or by
reference to the Highest Lawful Rate in the definitions of US Base
Rate, Adjusted US Dollar Eurodollar Rate, and Default Rate), this
Note shall bear interest at the Highest Lawful Rate and shall
continue to bear interest at the Highest Lawful Rate until such time
as the total amount of interest accrued hereon equals (but does not
exceed) the total amount of interest which would have accrued hereon
had there been no Highest Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other
provisions of this Note, in no event shall the interest payable
hereon, whether before or after maturity, exceed the maximum amount
of interest which, under applicable Law, may be charged on this
Note, 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. The term "applicable Law" as used in this
Note shall mean the laws of the State of Utah or the laws of the
United States, whichever laws allow the greater interest, as such
laws now exist or may be changed or amended or come into effect in
the future.
If this Note is placed in the hands of an attorney for
collection after 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, 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.
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.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH (WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME
ARE GOVERNED BY APPLICABLE FEDERAL LAW.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT A-2
PROMISSORY NOTE
US$ _______________ ___________, 1999
FOR VALUE RECEIVED, the undersigned, Questar Market
Resources, Inc., a Utah corporation (herein called "Borrower"),
hereby promises to pay to the order of
(herein called "Lender"), the principal
sum of
Dollars (US$ ), or, if greater
or less, the aggregate unpaid principal amount of the Tranche B
Loans made under this Note by Lender to Borrower pursuant to the
terms of the Credit Agreement (as hereinafter defined), 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 offices of US
Agent under the Credit Agreement, 901 Main Street, Dallas, Texas or
at such other place within Dallas County, Texas, as from time to
time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain US
Credit Agreement of even date herewith among Borrower, NationsBank,
N.A., individually and as administrative agent ("US Agent"), and the
lenders (including Lender) referred to therein (herein, as from time
to time supplemented, amended or restated, called the "Credit
Agreement"), and is a "Tranche B Note" as defined therein and (b) is
subject to the terms and provisions of the Credit Agreement, which
contains provisions for payments and prepayments hereunder and
acceleration of the maturity hereof upon the happening of certain
stated 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 defined herein.
The principal amount of this Note, together with all interest
accrued hereon, shall be due and payable in full on the Tranche B
Maturity Date.
Tranche B Loans that are US Base Rate Loans (exclusive of any
past due principal or interest) from time to time outstanding shall
bear interest on each day outstanding at the US Base Rate in effect
on such day; provided that if an Event of Default has occurred and
is continuing, US Base Rate Loans shall bear interest on each day
outstanding at the applicable Default Rate in effect on such day.
On each Interest Payment Date Borrower shall pay to the holder
hereof all unpaid interest which has accrued on the US Base Rate
Loans to but not including such Interest Payment Date. Each Tranche
B Loan that is a US Dollar Eurodollar Loan (exclusive of any past
due principal or interest) shall bear interest on each day during
the related Interest Period at the related Adjusted US Dollar
Eurodollar Rate in effect on such day; provided that if an Event of
Default has occurred and is continuing, such US Dollar Eurodollar
Loan shall bear interest on each day outstanding at the applicable
Default Rate in effect on such day. On each Interest Payment Date
relating to such US Dollar Eurodollar Loan, Borrower shall pay to
the holder hereof all unpaid interest which has accrued on such US
Dollar Eurodollar Loan to but not including such Interest Payment Date.
All past due principal of and past due interest on the Loans
shall bear interest on each day outstanding at the applicable
Default Rate in effect on such day, and such interest shall be due
and payable daily as it accrues. Notwithstanding the foregoing
provisions of this paragraph: (a) this Note shall never bear
interest in excess of the Highest Lawful Rate, and (b) if at any
time the rate at which interest is payable on this Note is limited
by the Highest Lawful Rate (by the foregoing subsection (a) or by
reference to the Highest Lawful Rate in the definitions of US Base
Rate, Adjusted US Dollar Eurodollar Rate, and Default Rate), this
Note shall bear interest at the Highest Lawful Rate and shall
continue to bear interest at the Highest Lawful Rate until such time
as the total amount of interest accrued hereon equals (but does not
exceed) the total amount of interest which would have accrued hereon
had there been no Highest Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other
provisions of this Note, in no event shall the interest payable
hereon, whether before or after maturity, exceed the maximum amount
of interest which, under applicable Law, may be charged on this
Note, 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. The term "applicable Law" as used in this
Note shall mean the laws of the State of Utah or the laws of the
United States, whichever laws allow the greater interest, as such
laws now exist or may be changed or amended or come into effect in
the future.
If this Note is placed in the hands of an attorney for
collection after 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, 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.
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.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH (WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME
ARE GOVERNED BY APPLICABLE FEDERAL LAW.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT B
BORROWING NOTICE
Reference is made to that certain US Credit Agreement dated
as of April 19, 1999 (as from time to time amended, the
"Agreement"), by and among Questar Market Resources, Inc., a Utah
corporation ("US Borrower"), NationsBank, N.A., as individually and
as administrative agent ("US Agent"), and certain financial
institutions ("Lenders"). Terms which are defined in the Agreement
are used herein with the meanings given them in the Agreement.
Pursuant to the terms of the Agreement, US Borrower hereby requests
Lenders to make [Tranche A/Tranche B] Loans to US Borrower as follows:
Aggregate amount of US Loans: US $ ___________________
Type of US Loans in Borrowing: ___________________
[US Base Rate Loans or US Dollar Eurodollar Loans]
Date on which US Loans are to be made: ___________________
Length of Interest Period for Eurodollar Loans____________ months
[1, 2, 3 or 6 months]
To induce Lenders to make such Loans, US Borrower hereby
represents, warrants, acknowledges, and agrees to and with US Agent
and each Lender that:
(a) The officer of US Borrower or such other Person duly
authorized by the President of US Borrower signing this
instrument is the duly elected, qualified and acting officer
of US Borrower or such other Person duly authorized by the
President of US Borrower as indicated below such officer's
signature hereto having all necessary authority to act for US
Borrower in making the request herein contained.
(b) The representations and warranties of US Borrower set
forth in the Agreement and the other US Loan Documents are
true and correct on and as of the date hereof (except to the
extent that the facts on which such representations and
warranties are based have been changed by the extension of
credit under the Agreement), 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 10.1(a) of the
Agreement; nor will any such Default exist upon US Borrower's
receipt and application of the Loans requested hereby. US
Borrower will use the Loans hereby requested in compliance
with Section 1.4 of the Agreement.
(d) Except to the extent waived in writing as provided in
Section 10.1(a) of the Agreement, US Borrower has performed
and complied with all agreements and conditions in the
Agreement required to be performed or complied with by US
Borrower on or prior to the date hereof, and each of the
conditions precedent to US Loans contained in the Agreement
remains satisfied.
(e) The US Facility Usage, after the making of the Loans
requested hereby, will not be in excess of the US Maximum
Credit Amount on the date requested for the making of such
Loans. [The Tranche A Facility Usage, after the making of
the Loans requested hereby, will not be in excess of the
Tranche A Maximum Credit Amount on the date requested for the
making of such Loans./ The Tranche B Loans, after the making
of such Loans, will not be in excess of the Tranche B
Maximum Credit Amount.]
(f) The US 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 10.1(a) of the Agreement. The Agreement and
the other US Loan Documents are hereby ratified, approved,
and confirmed in all respects.
The officer of US Borrower or such other Person duly
authorized by the President of US Borrower signing this instrument
hereby certifies that, to the best of his knowledge after due
inquiry, the above representations, warranties, acknowledgments, and
agreements of US Borrower are true, correct and complete.
IN WITNESS WHEREOF, this instrument is executed as of
____________, 1999.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
Reference is made to that certain US Credit Agreement dated
as of April 19, 1999 (as from time to time amended, the
"Agreement"), by and among Questar Market Resources, Inc., a Utah
corporation ("US Borrower"), NationsBank, N.A., individually and as
administrative agent ("US Agent"), and certain financial
institutions ("Lenders"). Terms which are defined in the Agreement
and which are used but not defined herein are used herein with the
meanings given them in the Agreement.
US Borrower hereby requests a conversion or continuation of
existing [Tranche A/Tranche B] Loans into a new Borrowing pursuant
to Section 1.3 of the Agreement as follows:
Existing Borrowing(s) to be continued or converted:
US $____________ of US Dollar Eurodollar Loans with
Eurodollar Interest Period ending ______________
US $____________ of US Base Rate Loans
If being combined with new US Loans, US $____________ of new
US Loans to be advanced on ____________, ________
Aggregate amount of new Borrowing: US $__________________
Type of US Loans in new Borrowing: __________________
Date of continuation or conversion: __________________
Length of Eurodollar Interest Period for US Dollar Eurodollar Loans
(1, 2, 3 or 6 months): ___________ months
To meet the conditions set out in the Credit Agreement for such
conversion/continuation, US Borrower hereby represents, warrants,
acknowledges, and agrees to and with US Agent and each Lender that:
(a) The officer of US Borrower or such other Person duly
authorized by the President of US Borrower signing this
instrument is the duly elected, qualified and acting officer of
US Borrower or such other Person duly authorized by the
President of US Borrower as indicated below such officer's
signature hereto having all necessary authority to act for US
Borrower in making the request herein contained.
(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 10.1(a) of the Credit Agreement.
(c) The US 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 10.1(a) of the Agreement. The Credit Agreement and
the other US Loan Documents are hereby ratified, approved, and
confirmed in all respects.
The officer of US Borrower or such other Person duly authorized
by the President of US Borrower signing this instrument hereby
certifies that, to the best of his knowledge after due inquiry, the
above representations, warranties, acknowledgments, and agreements
of US Borrower are true, correct and complete.
IN WITNESS WHEREOF this instrument is executed as of
__________________, 1999.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT D
CERTIFICATE ACCOMPANYING
FINANCIAL STATEMENTS
Reference is made to that certain US Credit Agreement dated
as of April 19, 1999 (as from time to time amended, the
"Agreement"), by and among Questar Market Resources, Inc., a Utah
corporation ("US Borrower"), NationsBank, N.A., individually and as
administrative agent ("US Agent"), and certain financial
institutions ("Lenders"), which Agreement is in full force and
effect on the date hereof. Terms which are defined in the Agreement
are used herein with the meanings given them in the Agreement.
This Certificate is furnished pursuant to Section 6.1(b) of
the Agreement. Together herewith US Borrower is furnishing to US
Agent and each Lender US Borrower's *[audited/unaudited] financial
statements (the "Financial Statements") as at
(the "Reporting Date"). US Borrower hereby represents, warrants,
and acknowledges to US Agent and each Lender that:
(a) the officer of US Borrower signing this instrument is
the duly elected, qualified and acting Vice President -
Finance of US Borrower and as such is US Borrower's chief
financial officer;
(b) the Financial Statements are accurate and complete
and satisfy the requirements of the Agreement;
(c) attached hereto is a schedule of calculations showing
US Borrower's compliance as of the Reporting Date with the
requirements of Sections of the
Agreement *[and US Borrower's non-compliance as of such date
with the requirements of Section(s) 7.11 and 7.12 of the
Agreement];
(d) on the Reporting Date US Borrower was, and on the
date hereof US Borrower is, in full compliance with the
disclosure requirements of Section 6.2(c) and 6.4 of the
Agreement, and no Default otherwise existed on the Reporting
Date or otherwise exists on the date of this instrument
*[except for Default(s) under Section(s)
of the Agreement, which *[is/are] more fully described on a
schedule attached hereto].
(e) *[Unless otherwise disclosed on a schedule attached
hereto,] The representations and warranties of US Borrower
set forth in the Agreement and the other US Loan Documents
are true and correct on and as of the date hereof (except to
the extent that the facts on which such representations and
warranties are based have been changed by the extension of
credit under the Agreement), with the same effect as though
such representations and warranties had been made on and as
of the date hereof.
The officer of US 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 US Borrower and, to the best of his knowledge, such
representations, warranties, and acknowledgments are true, correct
and complete.
IN WITNESS WHEREOF, this instrument is executed as of
____________, 1999.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT E
OPINION OF US BORROWER'S COUNSEL
[To be inserted.]
EXHIBIT F
ASSIGNMENT AND ACCEPTANCE
Reference is made to the US Credit Agreement dated as of
April 19, 1999 (the "Credit Agreement") among Questar Market
Resources, Inc., a Utah corporation (the "US Borrower"), the Lenders
(as defined in the Credit Agreement) and NationsBank, N.A.,
individually and as administrative agent for the Lenders (the "US
Agent"). Terms defined in the Credit Agreement are used herein with
the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse and without representation or warranty
except as expressly set forth herein, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to the
Assignor's rights and obligations under the Credit Agreement and the
other US Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement and the other US
Loan Documents. After giving effect to such sale and assignment,
the Assignee's Maximum US Credit Amount and the amount of the Loans
owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the US Loan Documents
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the US Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any Restricted Person or the
performance or observance by any Restricted Person of any of its
obligations under the US Loan Documents or any other instrument or
document furnished pursuant thereto; and (iv) attaches the US Note
held by the Assignor and requests that US Agent exchange such US
Note for new US Notes payable to the order of the Assignee in an
amount equal to the Maximum US Credit Amount assumed by the Assignee
pursuant hereto and to the Assignor in an amount equal to the
Maximum US Credit Amount retained by the Assignor, if any, as
specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 6.2 thereof and such other
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without
reliance upon US Agent, the Assignor or any other Lender and based
on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement; (iii) confirms that it is
an Eligible Transferee; (iv) appoints and authorizes US Agent to
take such action as US Agent on its behalf and to exercise such
powers and discretion under the Credit Agreement as are delegated to
US Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations
that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section 3.9
4. Following the execution of this Assignment and
Acceptance, it will be delivered to US Agent for acceptance and
recording by US Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance
hereof by US Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by US Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by US Agent, from
and after the Effective Date, US Agent shall make all payments under
the Credit Agreement and the US Notes in respect of the interest
assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the US Notes
for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the Laws of the State of Utah.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and
the same agreement. Delivery of an executed counterpart of Schedule
1 to this Assignment and Acceptance by telecopier shall be effective
as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: _____%
Assignee's Maximum US Credit Amount: US $ _____
Aggregate outstanding principal amount
of Loans assigned: US $ _____
Principal amount of US Note payable to Assignee: US $ _____
Principal amount of US Note payable to Assignor: US $ _____
Effective Date (if other than date
of acceptance by US Agent): *_____,___
[NAME OF ASSIGNOR], as Assignor
By:
Title:
Dated: ,
[NAME OF ASSIGNEE], as
Assignee
By:
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business
Days after the delivery of this Assignment and
Acceptance to US Agent.
Accepted [and Approved] **
this day of , 19 _
[NationsBank, N.A./Bank of America]
By:
Title:
[Approved this day
of , 19
QUESTAR MARKET RESOURCES, INC.
By: ]**
Title:
** Required if the Assignee is an Eligible Transferee
solely by reason of subsection (b) of the definition
of "Eligible Transferee".
EXHIBIT G
LETTER OF CREDIT APPLICATION AND AGREEMENT
[To Be Inserted]
EXHIBIT H
COMPETITIVE BID REQUEST
NationsBank, N.A.
as US Agent
901 Main Street
Post Office Box 830104
Dallas, Texas 75202
Attention: ____________________ [Date]
QUESTAR MARKET RESOURCES, INC.
Ladies and Gentlemen:
Reference is made to that certain US Credit Agreement dated as
of April 19, 1999 (as from time to time amended, the "Agreement"),
by and among Questar Market Resources, Inc. ("US Borrower"),
NationsBank, N.A., individually and as administrative agent ("US
Agent"), and certain financial institutions ("Lenders"). Terms
which are defined in the Agreement and which are used but not
defined herein are used herein with the meanings given them in the
Agreement. US Borrower hereby gives notice pursuant to Section
2.__(a) of the Agreement that it requests Competitive Bids under the
Agreement on the terms set forth below:
1. Proposed Date of Competitive Bid Loan: .
(which is a Business Day)
2. Aggregate Principal Amount of Competitive Bid Loan:
US $ .
(US $5,000,000 or greater integral multiple of US
$1,000,000)
3. Competitive Bid Interest Period and last day thereof:
.
(1 day to 7 days)
To induce Lenders to make such Competitive Bids, US Borrower
hereby represents, warrants, acknowledges, and agrees to and with US
Agent and each Lender that:
(a) The officer of US Borrower signing this
instrument is the duly elected, qualified and acting officer of
US Borrower as indicated below such officer's signature hereto
having all necessary authority to act for US Borrower in making
the request herein contained.
(b) The representations and warranties of US
Borrower set forth in the Agreement and the other US Loan
Documents, except as expressly made as of specific date, are
true and correct in all material respects on and as of the date
hereof (except to the extent that the facts on which such
representations and warranties are based have been changed by
the extension of credit under the Agreement), 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 10.1(a) of the
Agreement; nor will any such Default exist upon US Borrower's
receipt and application of any Competitive Bid Loan made
pursuant hereto.
(d) The sum of (i) the aggregate unpaid principal
balance of the US Loans, after the making of any Competitive
Bid Loan in the amount indicated hereby, plus (ii) the US LC
Obligations outstanding, will not be in excess of the Maximum
US Credit Amount on the date requested for the making of such
Loans.
The officer of US Borrower signing this instrument hereby
certifies that, to the best of his knowledge after due inquiry, the
above representations, warranties, acknowledgments, and agreements
of US Borrower are true, correct and complete.
IN WITNESS WHEREOF, this instrument is executed as of
, 1999.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT I
INVITATION TO BID
To Lenders under the
(as defined below)
Attention: ____________________ [Date]
QUESTAR MARKET RESOURCES, INC.
Ladies and Gentlemen:
Reference is made to that certain US Credit Agreement dated as
of April 19, 1999 (as from time to time amended, the "Agreement"),
by and among Questar Market Resources, Inc. ("US Borrower"),
NationsBank, N.A., individually and as administrative agent ("US
Agent"), and certain financial institutions ("Lenders"). Terms
which are defined in the Agreement and which are used but not
defined herein are used herein with the meanings given them in the
Agreement. US Borrower has delivered a Competitive Bid Request
dated pursuant to Section 1.7(a)
of the Agreement, and you are invited to submit a Competitive Bid by
not later than 9:00 a.m., Dallas, Texas time on the date specified
for the proposed Competitive Bid Loan. Your Competitive Bid must
comply with Section 1.7(b) of the Agreement and the following terms
as set forth in US Borrower's Competitive Bid Request:
1. Proposed Date of Competitive Bid Loan:
.
(which is a Business Day)
2. Aggregate Principal Amount of Competitive Bid Loan:
US $ .
(US $5,000,000 or greater integral multiple of US
$1,000,000)
3. Competitive Bid Interest Period and last day thereof:
.
(from 7 days or more to the last day of the US Facility
Commitment Period)
NATIONSBANK, N.A.,
as US Agent
By:
Name:
Title:
EXHIBIT J
COMPETITIVE BID
NationsBank, N.A.
as US Agent
901 Main Street
Post Office Box 830104
Dallas, Texas 75202
Attention: _______________ [Date]
QUESTAR MARKET RESOURCES, INC.
Ladies and Gentlemen:
Reference is made to that certain US Credit Agreement dated as
of April 19, 1999 (as from time to time amended, the "Agreement"),
by and among Questar Market Resources, Inc.. ("US Borrower"),
NationsBank, N.A., individually and as administrative agent ("US
Agent"), and certain financial institutions ("Lenders"). Terms
which are defined in the Agreement and which are used but not
defined herein are used herein with the meanings given them in the
Agreement. The undersigned Lender hereby makes a Competitive Bid
pursuant to Section 1.7(b) of the Agreement, in response to the
Competitive Bid Request of US Borrower dated ____________________,
on the following terms:
1. Principal Amount: US $ .
(US $5,000,000 or greater integral multiple of US
$1,000,000; multiple Competitive Bids may be accepted by
US Borrower)
2. Competitive Bid Rate: percent (__%) .
(expressed in decimal form to no more than four decimal
places)
3. Competitive Bid Interest Period and last day thereof:
.
(1 day to 7 days)
The undersigned Lender hereby confirms that it is prepared to
extend credit to US Borrower upon acceptance by US Borrower of this
Competitive Bid pursuant to Section 1.7(d) of the Agreement.
, Lender
By:
Name:
Title:
EXHIBIT K
COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.
as US Agent
901 Main Street
Post Office Box 830104
Dallas, Texas 75202
Attention: ____________________ [Date]
QUESTAR MARKET RESOURCES, INC.
Ladies and Gentlemen:
Reference is made to that certain US Credit Agreement dated as
of April 19, 1999 (as from time to time amended, the "Agreement"),
by and among Questar Market Resources, Inc. ("US Borrower"),
NationsBank, N.A., individually and as administrative agent ("US
Agent"), and certain financial institutions ("Lenders"). Terms
which are defined in the Agreement and which are used but not
defined herein are used herein with the meanings given them in the
Agreement. Pursuant to Section 1.7(c) of the Agreement, US Borrower
hereby accepts the following Competitive Bids made in response to US
Borrower's Competitive Bid Request dated ____________________ for
Competitive Bid Loans maturing ____________________:
Lender Principal Amount Interest Rate
US $ %
US $ %
US $ %
US Borrower hereby rejects the following Competitive Bids:
Lender Principal Amount Interest Rate
US $ %
US $ %
US $ %
The proceeds of the Competitive Bid Loans made pursuant to the
Competitive Bids accepted hereby should be deposited in NationsBank,
N.A. account number __________ on ____________________ [or wire
transferred to __________________].
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
EXHIBIT L
COMPETITIVE BID NOTE
___________ ____________, 1999
FOR VALUE RECEIVED, the undersigned, Questar Market Resources,
Inc., a Utah corporation ("Borrower"), hereby promises to pay to the
order of
("Lender"), the aggregate unpaid principal
amount of all Competitive Bid Loans made under this Note by Lender
to Borrower pursuant to the terms of the Credit Agreement (as
hereinafter defined), 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 offices of US Agent under the Credit
Agreement, 901 Main Street, Dallas, Texas or at such other place
within Dallas County, Texas, as from time to time may be designated
by the holder of this Note.
This Note (a) is issued and delivered under that certain US
Credit Agreement dated as of [___________], 1999, among Borrower,
NationsBank, N.A., individually and as administrative agent ("US
Agent"), and the lenders (including Lender) referred to therein (as
from time to time supplemented, amended or restated, 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 payments and prepayments hereunder and
acceleration of the maturity hereof upon the happening of certain
stated 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 defined herein.
For the purposes of this Note, "Competitive Bid Rate Payment
Date" means, with respect to each Competitive Bid Loan: (i) the day
on which the related Competitive Bid Interest Period ends, and (ii)
any day on which past due interest or past due principal is owed
hereunder with respect to such Competitive Bid Loan and is unpaid.
If the terms hereof or of the Credit Agreement provide that payments
of interest or principal with respect to such Competitive Bid Loan
shall be deferred from one Competitive Bid Rate Payment Date to
another day, such other day shall also be a Competitive Bid Rate
Payment Date.
The principal amount of this Note and interest accrued hereon,
shall be due and payable as set forth in the Credit Agreement, and
shall in any event be due in full on the last day of the US Facility
Commitment Period.
Each Competitive Bid Loan (exclusive of any past due principal
or past due interest) shall bear interest on each day during the
related Competitive Bid Interest Period at the Competitive Bid Rate
in effect on such day for such Competitive Bid Loan, provided that
if an Event of Default has occurred and is continuing such
Competitive Bid Loan shall bear interest on each day outstanding at
the applicable Default Rate in effect on such day. On each
Competitive Bid Rate Payment Date relating to any Competitive Bid
Loan, Borrower shall pay to the holder hereof all unpaid interest
which has accrued on such Competitive Bid Loan to but not including
such Competitive Bid Rate Payment Date.
All past due principal of and past due interest on Competitive
Bid Loans shall bear interest on each day outstanding at the
applicable Default Rate in effect on such day, and such interest
shall be due and payable daily as it accrues. Notwithstanding the
foregoing provisions of this paragraph: (a) this Note shall never
bear interest in excess of the Highest Lawful Rate, and (b) if at
any time the rate at which interest is payable on this Note is
limited by the Highest Lawful Rate (by the foregoing clause (a) or
by reference to the Highest Lawful Rate in the definitions of
Competitive Bid Rate and Default Rate), this Note shall bear
interest at the Highest Lawful Rate and shall continue to bear
interest at the Highest Lawful Rate until such time as the total
amount of interest accrued hereon equals (but does not exceed) the
total amount of interest which would have accrued hereon had there
been no Highest Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other
provisions of this Note, in no event shall the interest payable
hereon, whether before or after maturity, exceed the maximum amount
of interest which, under applicable Law, may be charged on this
Note, 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. The term "applicable Law" as used in this
Note shall mean the laws of the State of Utah or the laws of the
United States, whichever laws allow the greater interest, as such
laws now exist or may be changed or amended or come into effect in
the future.
If this Note is placed in the hands of an attorney for
collection after 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, 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.
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.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF UTAH (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE
GOVERNED BY APPLICABLE FEDERAL LAW.
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
[Execution]
FOURTH AMENDMENT TO US CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO US CREDIT AGREEMENT (herein called
the "Amendment") dated effective as of April 17, 2000, by and among
Questar Market Resources, Inc., a Utah corporation ("US Borrower"),
Bank of America, N.A. ("Bank of America"), individually and as
administrative agent for the Lenders, as defined below ("US Agent"),
and the undersigned Lenders.
W I T N E S S E T H:
WHEREAS, US Borrower, US Agent and the lenders as signatories
thereto (the "Original Lenders") entered into that certain US Credit
Agreement dated as of April 19, 1999, as amended by that certain
First Amendment to US Credit Agreement dated as of May 17, 1999, as
amended by that certain Second Amendment to US Credit Agreement
dated as of July 30, 1999, and as amended by that certain Third
Amendment to US Credit Agreement dated as of November 30, 1999 (the
"Original Agreement"), for the purpose and consideration therein
expressed, whereby the Original Lenders became obligated to make
loans to US Borrower as therein provided; and
WHEREAS, US Borrower, Agent and The Sumitomo Bank, Limited
("Sumitomo") desire that Sumitomo make a commitment under the US
Credit Agreement in the aggregate amount of $7,666,666.67, of which
fifty percent (50%) shall be through assignment from Bank of America
(the "Bank of America Assigned Amount") and fifty percent (50%)
shall be through an increase in the US Maximum Credit Amount, the
Tranche A Maximum Credit Amount and the Tranche B Maximum Credit
Amount; and
WHEREAS, US Borrower, Agent, Mellon Bank, N.A. ("Mellon"),
and The Industrial Bank of Japan, Limited ("IBJ") desire that IBJ
make a commitment under the US Credit Agreement in the aggregate
amount of $7,666,666.67, all of which shall be through assignment
from Mellon (the "Mellon Assigned Amount"); and
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, Bank of America and Sumitomo are entering into that
certain Assignment and Acceptance dated of even date herewith,
whereby Bank of America is selling and assigning to Sumitomo the
Bank of America Assigned Amount of Bank of America's rights and
obligations under the US Credit Agreement and the other US Loan
Documents as of the date hereof; and
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, Mellon and IBJ are entering into that certain
Assignment and Acceptance dated of even date herewith, whereby
Mellon is selling and assigning to IBJ the Mellon Assigned Amount of
Mellon's rights and obligations under the US Credit Agreement and
the other US Loan Documents as of the date hereof; and
WHEREAS, US Borrower, US Agent, Sumitomo, IBJ and the other
undersigned Lenders desire to amend the definitions of the Tranche A
Maximum Credit Amount, the Tranche B Conversion Date, the Tranche B
Maximum Credit Amount and the US Maximum Credit Amount, and desire
to amend the Lenders Schedule; and
WHEREAS, the increases in the US Maximum Credit Amount, the
Tranche A Maximum Credit Amount and the Tranche B Maximum Credit
Amount will be provided by commitments of Sumitomo, and the
obligations of the Original Lenders to make Loans will not be
increased by this Amendment; and
WHEREAS, now that the US Maximum Credit Amount is fully
committed by US Lenders, minor adjustments in the Tranche B Note
amounts shall be made and new Tranche B Notes shall be issued to US
Lenders;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the Original
Agreement, in consideration of the loans which may hereafter be made
by Lenders to US Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement.
Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms defined in the Original Agreement shall
have the same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context
otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this Section 1.2.
"Amendment" means this Fourth Amendment to US Credit Agreement.
"Amendment Documents" means this Amendment, the IBJ
Assignment and Acceptance, the Sumitomo Assignment and
Acceptance and the New US Notes.
"IBJ Assignment and Acceptance" means the Assignment and
Acceptance of even date herewith by and between IBJ, Mellon,
Agent and US Borrower, in form attached hereto as Exhibit C-1.
"Lenders" means the Original Lenders, IBJ and Sumitomo.
"New US Notes" means (i) the Tranche A Notes of even date
herewith made payable to the order of each of Bank of
America, IBJ, Mellon and Sumitomo, in form attached hereto as
Exhibit A-1, with appropriate insertions, (ii) the Tranche B
Notes of even date herewith made payable to the order of US
Lenders, in form attached hereto as Exhibit A-2, with
appropriate insertions, and (iii) the Competitive Bid Notes
of even date herewith made payable to the order of IBJ and
Sumitomo, in form attached hereto as Exhibit A-3.
"Sumitomo Assignment and Acceptance" means the Assignment
and Acceptance of even date herewith by and between Bank of
America, Sumitomo and US Borrower, in form attached hereto as
Exhibit C-2.
"US Credit Agreement" means the Original Agreement as
amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms. The definitions of "US Maximum
Credit Amount", "Tranche A Maximum Credit Amount", "Tranche B
Maximum Credit Amount" and "Tranche B Conversion Date" in Annex I of
the Original Agreement are hereby amended in their entirety to read
as follows:
"'Tranche B Conversion Date' means April 16, 2001, or such
later day to which the Tranche B Conversion Date is extended
pursuant to Section 1.1 of the US Agreement."
"'Tranche A Maximum Credit Amount' means the amount of US
$180,000,000."
"'Tranche B Maximum Credit Amount' means the amount of US
$50,000,000."
"'US Maximum Credit Amount' means the amount of US
$230,000,000."
Section 2.2. Lenders Schedule. Annex II to the Original
Agreement is hereby amended in its entirety to read as set forth in
Exhibit B attached hereto.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become
effective as of the date first above written when, and only when:
(i) US Agent shall have received, at US Agent's office, a
counterpart of this Amendment executed and delivered by Required
Lenders, US Borrower, IBJ and Sumitomo;
(ii) US Borrower shall have issued and delivered to US Agent,
for subsequent delivery to IBJ, a Tranche A Note with appropriate
insertions payable to the order of IBJ, duly executed on behalf of
US Borrower, dated the date hereof;
(iii) US Borrower shall have issued and delivered to US
Agent, for subsequent delivery to Mellon, a Tranche A Note with
appropriate insertions payable to the order of Mellon, duly executed
on behalf of US Borrower, dated the date hereof;
(iv) US Borrower shall have issued and delivered to US Agent,
for subsequent delivery to Sumitomo, a Tranche A Note with
appropriate insertions payable to the order of Sumitomo, duly
executed on behalf of US Borrower, dated the date hereof;
(v) US Borrower shall have issued and delivered to US Agent,
a Tranche A Note with appropriate insertions payable to the order of
Bank of America, duly executed on behalf of US Borrower, dated the
date hereof;
(vi) US Borrower shall have issued and delivered to US Agent,
for subsequent delivery to each US Lender, a Tranche B Note for each
US Lender with appropriate insertions payable to the order of the
appropriate US Lender;
(vii) US Borrower shall have issued and delivered to US
Agent, for subsequent delivery to IBJ, a Competitive Bid Note with
appropriate insertions payable to the order of IBJ, duly executed on
behalf of US Borrower, dated the date hereof;
(viii) US Borrower shall have issued and delivered to US
Agent, for subsequent delivery to Sumitomo, a Competitive Bid Note
with appropriate insertions payable to the order of Sumitomo, duly
executed on behalf of US Borrower, dated the date hereof;
(ix) US Agent shall have received, at US Agent's office, a
counterpart of the IBJ Assignment and Acceptance executed and
delivered by US Borrower, Mellon and IBJ;
(x) US Agent shall have received, at US Agent's office, a
counterpart of the Sumitomo Assignment and Acceptance executed and
delivered by US Borrower and Sumitomo;
(xi) US Agent shall have received, at US Agent's office, a
certificate of the Secretary or Assistant Secretary and of the
President, Chief Financial Officer or Vice President of
Administrative Services of US Borrower dated the date of this
Amendment certifying: (a) that resolutions adopted in connection
with the Original Agreement by the Board of Directors of the US
Borrower authorize the execution, delivery and performance of this
Amendment by US Borrower, (b) to the names and true signatures of
the officers of the US Borrower authorized to sign this Amendment,
and (c) that all of the representations and warranties set forth in
Article IV hereof are true and correct at and as of the time of such
effectiveness; and
(xii) US Agent shall have additionally received from US
Borrower, in connection with such US Loan Documents, all other fees
and reimbursements to be paid to US Agent pursuant to any US Loan
Documents, or otherwise due US Agent and including fees and
disbursements of US Agent's attorneys.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In
order to induce US Agent and the undersigned Lenders to enter into
this Amendment, US Borrower represents and warrants to US Agent that:
(a) The representations and warranties contained in
Article V of the Original Agreement are true and correct at
and as of the time of the effectiveness hereof; except that
US Borrower currently has a Subsidiary by the name of Canor
Energy Ltd. ("Canor"), which is not listed in the Disclosure
Schedule. Canor shall be merged with and into Celsius Energy
Resources, Ltd. ("Celsius"), with the surviving entity being
Celsius by December 31, 2000.
(b) US Borrower has duly taken all action necessary to
authorize the execution and delivery by it of the Amendment
Documents and to authorize the consummation of the
transactions contemplated hereby and thereby and the
performance of its obligations hereunder and thereunder. US
Borrower is duly authorized to borrow funds under the US
Credit Agreement.
(c) The execution and delivery by the various Restricted
Persons of the Amendment Documents to which each is a party,
the performance by each of its obligations under such
Amendment Documents and the consummation of the transactions
contemplated by the various Amendment Documents do not and
will not (a) conflict with any provision of (i) any Law, (ii)
the organizational documents of any Restricted Person, or
(iii) any agreement, judgment, license, order or permit
applicable to or binding upon any Restricted Person, or (b)
result in the acceleration of any Indebtedness owed by any
Restricted Person, or (c) result in or require the creation
of any Lien upon any assets or properties of any Restricted
Person, except as expressly contemplated or permitted in the
Loan Documents. Except as expressly contemplated in the Loan
Documents no consent, approval, authorization or order of,
and no notice to or filing with any Tribunal or third party
is required in connection with the execution, delivery or
performance by any Restricted Person of any Amendment
Document or to consummate any transactions contemplated by
the Amendment Documents.
(d) This Amendment is, and the other Amendment Documents
when duly executed and delivered will be, a legal, valid and
binding obligation of each Restricted Person 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 and by
equitable principles of general application relating to the
enforcement of creditor's rights.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in all
respects. The US Loan Documents, as they may be amended or affected
by the various Amendment Documents, are hereby ratified and
confirmed in all respects. Any reference to the US Credit Agreement
in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. Any reference to the Lenders
or the Lender Parties in any Loan Document shall be deemed to
include IBJ and Sumitomo. Any reference to the Tranche A Notes, the
Tranche B Notes and the Competitive Bid Notes in any other US Loan
Document shall be deemed to include a reference to the New US Notes
issued and delivered pursuant to this Amendment. The execution,
delivery and effectiveness of this Amendment and each of the New US
Notes shall not, except as expressly provided herein or therein,
operate as a waiver of any right, power or remedy of Lenders under
the US Credit Agreement, the US Notes, or any other US Loan Document
nor constitute a waiver of any provision of the US Credit Agreement,
the US Notes or any other US Loan Document.
Section 5.2. Survival of Agreements; Cumulative Nature. All
of Restricted Persons' various representations, warranties,
covenants and agreements herein shall survive the execution and
delivery of this Amendment and the other Amendment Documents and the
performance hereof and thereof, including without limitation the
making or granting of the US Loans and the delivery of the New US
Notes and shall further survive until all of the US Obligations are
paid in full to each Lender Party and all of Lender Parties'
obligations to US Borrower are terminated. All statements and
agreements contained in any certificate or instrument delivered by
any Restricted Person hereunder or under the US Credit Agreement to
any Lender Party shall be deemed representations and warranties by
US Borrower or agreements and covenants of US Borrower under this
Amendment and under the US Credit Agreement. The representations,
warranties, indemnities, and covenants made by Restricted Persons in
the US Loan Documents, and the rights, powers, and privileges
granted to Lender Parties in the US Loan Documents, are cumulative,
and, except for expressly specified waivers and consents, no Loan
Document shall be construed in the context of another to diminish,
nullify, or otherwise reduce the benefit to any Lender Party of any
such representation, warranty, indemnity, covenant, right, power or
privilege. In particular and without limitation, no exception set
out in this Amendment or any other Amendment Document to any
representation, warranty, indemnity, or covenant herein or therein
contained shall apply to any similar representation, warranty,
indemnity, or covenant contained in any other Loan Document, and
each such similar representation, warranty, indemnity, or covenant
shall be subject only to those exceptions which are expressly made
applicable to it by the terms of the various US Loan Documents.
Section 5.3. Loan Documents. This Amendment, the IBJ
Assignment and Acceptance, the Sumitomo Assignment and Acceptance
and the New US Notes are each a US Loan Document, and all provisions
in the US Credit Agreement pertaining to US Loan Documents apply
hereto and thereto.
Section 5.5. Governing Law. This Amendment, the IBJ
Assignment and Acceptance, the Sumitomo Assignment and Acceptance
and the New US Notes shall each be governed by and construed in
accordance the laws of the State of Utah and any applicable laws of
the United States of America in all respects, including
construction, validity and performance. US Borrower hereby
irrevocably submits itself and each other Restricted Person to the
non-exclusive jurisdiction of the state and federal courts sitting
in the State of Utah and agrees and consents that service of process
may be made upon it or any Restricted Person in any legal proceeding
relating to the Amendment Documents or the Obligations by any means
allowed under Utah or federal law.
Section 5.6. Counterparts. This Amendment may be separately
executed in any number of counterparts and by the different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to constitute one and the same Amendment. This
Amendment may be validly executed and delivered by facsimile or
other electronic transmission.
THIS AMENDMENT AND THE OTHER US 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.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, this Amendment is executed as of the date
first above written.
QUESTAR MARKET RESOURCES, INC.
US Borrower
By:
G. L. Nordloh
President and Chief Executive
Officer
BANK OF AMERICA, N.A.,
Administrative Agent, US LC Issuer and
Lender
By:
Tracey S. Barclay
Principal
THE SUMITOMO BANK, LIMITED
Lender
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
Lender
By:
Name:
Title:
BANK OF MONTREAL
Lender
By:
Name:
Title:
BANK ONE, N.A. (Main Office Chicago)
Lender
By:
Name:
Title:
FIRST SECURITY BANK, N.A.
Lender
By:
Name:
Title:
MELLON BANK, N.A.
Lender
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
Lender
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
Lender
By:
Name:
Title:
EXHIBIT A-1
Tranche A Notes
EXHIBIT A-2
Tranche B Notes
EXHIBIT A-3
Competitive Bid Notes
EXHIBIT B
LENDER'S SCHEDULE
EXHIBIT C-1
IBJ ASSIGNMENT AND ACCEPTANCE
EXHIBIT C-2
SUMITOMO ASSIGNMENT AND ACCEPTANCE
[Execution]
FIFTH AMENDMENT TO US CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO US CREDIT AGREEMENT (herein called
the "Amendment") made as of October 6, 2000, by and among Questar
Market Resources, Inc., a Utah corporation ("US Borrower"), Bank of
America, N.A., individually and as administrative agent for the
Lenders as defined below ("US Agent"), and the undersigned Lenders.
W I T N E S S E T H:
WHEREAS, US Borrower, US Agent and the lenders as signatories
thereto (the "Lenders") entered into that certain US Credit
Agreement dated as of April 19, 1999, as amended by that certain
First Amendment to US Credit Agreement dated as of May 17, 1999, as
amended by that certain Second Amendment to US Credit Agreement
dated as of July 30, 1999, as amended by that certain Third
Amendment to US Credit Agreement dated as of November 30, 1999, and
as amended by that certain Fourth Amendment to US Credit Agreement
dated as of April 17, 2000 (the "Original Agreement"), for the
purpose and consideration therein expressed, whereby the Lenders
became obligated to make loans to US Borrower as therein provided; and
WHEREAS, US Borrower, US Agent and the undersigned Lenders
desire to amend the Original Agreement for the purposes as provided
herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein and in the Original
Agreement, in consideration of the loans which may hereafter be made
by Lenders to US Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement.
Unless the context otherwise requires or unless otherwise expressly
defined herein, the terms defined in the Original Agreement shall
have the same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context
otherwise requires, the following terms when used in this Amendment
shall have the meanings assigned to them in this Section 1.2.
"Amendment" means this Fifth Amendment to US Credit Agreement.
"US Credit Agreement" means the Original Agreement as
amended hereby.
ARTICLE II.
Amendments to Original Agreement
Section 2.1. Hedging Contracts. Section 7.10(i)(B) of the
Original Agreement is hereby amended in its entirety to read as
follows:
"(B) such contracts do not require any Restricted Person
to provide any Lien or letter of credit to secure US
Borrower's obligations thereunder, other than Liens on cash
or cash equivalents and letters of credit; provided that the
aggregate amount of cash and cash equivalents subject to
Liens securing such contracts and the undrawn amount of all
letters of credit securing such contracts shall not exceed
(i) US $45,000,000 at any time, through and including
December 31, 2000 and (ii) US $30,000,000 at any time
thereafter."
ARTICLE III.
Waiver
Section 3.1. Waiver. US Borrower has informed US Agent
that US Borrower and Restricted Persons may have violated the
provisions of Section 7.10(i) of the Original Agreement for the
Fiscal Quarter ended September 30, 2000. US Agent and the
undersigned Lenders hereby (a) waive any such violation of Section
7.10(i) and (b) waive any Default or Event of Default resulting from
such violation.
ARTICLE IV.
Conditions of Effectiveness
Section 4.1. Effective Date. This Amendment shall become
effective as of the date first above written when, and only when,
(i) US Agent shall have received, at US Agent's office, a
counterpart of this Amendment executed and delivered by US Borrower
and Required Lenders, (ii) a certificate of the Secretary or
Assistant Secretary and of the President, Chief Financial Officer or
Vice President of Administrative Services of US Borrower dated the
date of this Amendment certifying: (a) that resolutions adopted in
connection with the Original Agreement by the Board of Directors of
the US Borrower authorize the execution, delivery and performance of
this Amendment by US Borrower, (b) to the names and true signatures
of the officers of the US Borrower authorized to sign this
Amendment, and (c) that all of the representations and warranties
set forth in Article V hereof are true and correct at and as of the
time of such effectiveness; and (iii) US Agent shall have
additionally received from US Borrower, in connection with such US
Loan Documents, all other fees and reimbursements to be paid to US
Agent pursuant to any US Loan Documents, or otherwise due US Agent
and including fees and disbursements of US Agent's attorneys.
ARTICLE V.
Representations and Warranties
Section 5.1. Representations and Warranties of Borrower.
In order to induce US Agent and Lenders to enter into this
Amendment, US Borrower represents and warrants to US Agent that:
(a) The representations and warranties contained in
Article V of the Original Agreement are true and correct at
and as of the time of the effectiveness hereof.
(b) US Borrower has duly taken all action necessary to
authorize the execution and delivery by it of this Amendment
and to authorize the consummation of the transactions
contemplated hereby and the performance of its obligations
hereunder. US Borrower is duly authorized to borrow funds
under the US Credit Agreement.
(c) The execution and delivery by US Borrower of this
Amendment, the performance by US Borrower of its obligations
hereunder and the consummation of the transactions
contemplated herein do not and will not (a) conflict with any
provision of (i) any Law, (ii) the organizational documents
of US Borrower, or (iii) any agreement, judgment, license,
order or permit applicable to or binding upon US Borrower, or
(b) result in the acceleration of any Indebtedness owed by US
Borrower, or (c) result in or require the creation of any
Lien upon any assets or properties of US Borrower, except as
expressly contemplated or permitted in the Loan Documents.
Except as expressly contemplated in the Loan Documents no
consent, approval, authorization or order of, and no notice
to or filing with any Tribunal or third party is required in
connection with the execution, delivery or performance by US
Borrower of this Amendment or to consummate any transactions
contemplated herein.
(d) This Amendment is a legal, valid and binding
obligation of US Borrower, 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
equitable principles of general application relating to the
enforcement of creditor's rights.
ARTICLE VI.
Miscellaneous
Section 6.1. Ratification of Agreements. The Original
Agreement as hereby amended is hereby ratified and confirmed in all
respects. The US Loan Documents, as they may be amended or affected
by this Amendment, are hereby ratified and confirmed in all
respects. Any reference to the US Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Agreement
as hereby amended. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders under
the US Credit Agreement, the US Notes, or any other US Loan Document
nor constitute a waiver of any provision of the US Credit Agreement,
the US Notes or any other US Loan Document.
Section 6.2. Survival of Agreements; Cumulative Nature.
All of US Borrower's various representations, warranties, covenants
and agreements herein shall survive the execution and delivery of
this Amendment and the performance hereof, including without
limitation the making or granting of the US Loans, and shall further
survive until all of the US Obligations are paid in full to each
Lender Party and all of Lender Parties' obligations to US Borrower
are terminated. All statements and agreements contained in any
certificate or instrument delivered by any Restricted Person
hereunder or under the US Credit Agreement to any Lender Party shall
be deemed representations and warranties by US Borrower or
agreements and covenants of US Borrower under this Amendment and
under the US Credit Agreement. The representations, warranties,
indemnities, and covenants made by Restricted Persons in the US Loan
Documents, and the rights, powers, and privileges granted to Lender
Parties in the US Loan Documents, are cumulative, and, except for
expressly specified waivers and consents, no Loan Document shall be
construed in the context of another to diminish, nullify, or
otherwise reduce the benefit to any Lender Party of any such
representation, warranty, indemnity, covenant, right, power or
privilege. In particular and without limitation, no exception set
out in this Amendment to any representation, warranty, indemnity, or
covenant herein contained shall apply to any similar representation,
warranty, indemnity, or covenant contained in any other Loan
Document, and each such similar representation, warranty, indemnity,
or covenant shall be subject only to those exceptions which are
expressly made applicable to it by the terms of the various US Loan
Documents.
Section 6.3. Loan Documents. This Amendment is a US Loan
Document, and all provisions in the US Credit Agreement pertaining
to US Loan Documents apply hereto.
Section 6.4. Governing Law. This Amendment shall be
governed by and construed in accordance the laws of the State of
Utah and any applicable laws of the United States of America in all
respects, including construction, validity and performance. US
Borrower hereby irrevocably submits itself and each other Restricted
Person to the non-exclusive jurisdiction of the state and federal
courts sitting in the State of Utah and agrees and consents that
service of process may be made upon it or any Restricted Person in
any legal proceeding relating to the Amendment Documents or the
Obligations by any means allowed under Utah or federal law.
Section 6.5. Counterparts. This Amendment may be
separately executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be validly executed and delivered by
facsimile or other electronic transmission.
THIS AMENDMENT AND THE OTHER US 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.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, this Amendment is executed as of the date
first above written.
QUESTAR MARKET RESOURCES, INC.
US Borrower
By:
G. L. Nordloh
President and Chief Executive
Officer
Mailing Address:
P.O. Box 45433
Salt Lake City, Utah 84145
Attention: Martin H. Craven
Street Address:
180 East 100 South
Salt Lake City, Utah 84111
Telephone: (801) 324-5497
Fax: (801) 324-5483
BANK OF AMERICA, N.A.
Administrative Agent, US LC Issuer
and Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
Lender
By:
Name:
Title:
BANK OF MONTREAL
Lender
By:
James Whitmore
Director
BANK ONE, N.A., f/k/a THE FIRST
NATIONAL BANK OF CHICAGO
Lender
By:
Name:
Title:
FIRST SECURITY BANK, N.A.
Lender
By:
Name:
Title:
MELLON BANK, N.A.
Lender
By:
Roger E. Howard
Vice President
U.S. BANK NATIONAL ASSOCIATION
Lender
By:
Mark E. Thompson
Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
Lender
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Lender
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
Lender
By:
Name:
Title:
