<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
Form 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended June 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
--------------- ---------------
Commission File Number 1-1204
----------------------
AMERADA HESS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
13-4921002
(I.R.S. employer identification number)
1185 AVENUE OF THE AMERICAS, NEW YORK, N.Y.
(Address of principal executive offices)
10036
(Zip Code)
(Registrant's telephone number, including area code is (212) 997-8500)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
At June 30, 1997, 91,739,105 shares of Common Stock were outstanding.
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<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
AMERADA HESS CORPORATION AND CONSOLIDATED SUBSIDIARIES
STATEMENT OF CONSOLIDATED INCOME
(in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30 Ended June 30
----------------------- ----------------------
1997 1996 1997 1996
---------- ---------- --------- ----------
<S> <C> <C> <C> <C>
REVENUES
SALES (excluding excise taxes) and
other operating revenues $1,833,960 $2,094,840 $4,230,790 $4,309,377
Non-operating revenues
Asset sales 16,463 429,009 16,463 429,009
Other 28,401 19,907 47,669 37,918
---------- ---------- ---------- ----------
Total revenues 1,878,824 2,543,756 4,294,922 4,776,304
---------- ---------- ---------- ----------
COSTS AND EXPENSES
Cost of products sold and operating expenses 1,360,588 1,597,520 3,231,487 3,242,391
Exploration expenses, including dry holes 79,143 61,489 129,323 123,175
Selling, general and administrative expenses 158,806 151,570 307,880 301,702
Interest expense 33,755 41,902 67,407 94,707
Depreciation, depletion, amortization
and lease impairment 170,331 183,559 367,826 385,108
Provision for income taxes 34,544 131,269 144,754 186,797
---------- ---------- ---------- ----------
Total costs and expenses 1,837,167 2,167,309 4,248,677 4,333,880
---------- ---------- ---------- ----------
NET INCOME $ 41,657 $ 376,447 $ 46,245 $ 442,424
========== ========== ========== ==========
NET INCOME PER SHARE $ .45 $ 4.04 $ .50 $ 4.75
========== ========== ========== ==========
WEIGHTED AVERAGE NUMBER OF SHARES
OUTSTANDING 92,256 93,132 92,604 93,077
COMMON STOCK DIVIDENDS PER SHARE $ .15 $ .15 $ .30 $ .30
</TABLE>
See accompanying notes to consolidated financial statements.
1
<PAGE> 3
PART I - FINANCIAL INFORMATION (CONT'D.)
AMERADA HESS CORPORATION AND CONSOLIDATED SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(in thousands of dollars)
<TABLE>
<CAPTION>
A S S E T S
JUNE 30, DECEMBER 31,
1997 1996
------------ ------------
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 186,957 $ 112,522
Accounts receivable 520,339 848,129
Inventories 993,253 1,272,312
Other current assets 141,450 193,881
------------ ------------
Total current assets 1,841,999 2,426,844
------------ ------------
INVESTMENTS AND ADVANCES 233,159 218,573
------------ ------------
PROPERTY, PLANT AND EQUIPMENT
Total - at cost 12,090,972 11,902,419
Less reserves for depreciation, depletion,
amortization and lease impairment 7,114,764 6,995,136
------------ ------------
Property, plant and equipment - net 4,976,208 4,907,283
------------ ------------
DEFERRED INCOME TAXES AND OTHER ASSETS 296,439 231,781
------------ ------------
TOTAL ASSETS $ 7,347,805 $ 7,784,481
============ ============
L I A B I L I T I E S A N D S T O C K H O L D E R S ' E Q U I T Y
CURRENT LIABILITIES
Accounts payable - trade $ 481,099 $ 666,172
Accrued liabilities 429,898 501,369
Deferred revenue 2,003 103,031
Taxes payable 314,694 258,723
Notes payable 155,000 18,000
Current maturities of long-term debt 189,685 189,685
------------ ------------
Total current liabilities 1,572,379 1,736,980
------------ ------------
LONG-TERM DEBT 1,493,771 1,660,998
------------ ------------
CAPITALIZED LEASE OBLIGATIONS 39,058 50,818
------------ ------------
DEFERRED LIABILITIES AND CREDITS
Deferred income taxes 586,316 616,900
Other 350,279 335,154
------------ ------------
Total deferred liabilities and credits 936,595 952,054
------------ ------------
STOCKHOLDERS' EQUITY
Preferred stock, par value $1.00
Authorized - 20,000,000 shares for issuance in series -- --
Common stock, par value $1.00
Authorized - 200,000,000 shares
Issued - 91,739,105 shares at June 30, 1997;
93,073,305 shares at December 31, 1996 91,739 93,073
Capital in excess of par value 755,210 754,559
Retained earnings 2,565,235 2,613,920
Equity adjustment from foreign currency translation (106,182) (77,921)
------------ ------------
Total stockholders' equity 3,306,002 3,383,631
------------ ------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 7,347,805 $ 7,784,481
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
2
<PAGE> 4
PART I - FINANCIAL INFORMATION (CONT'D.)
AMERADA HESS CORPORATION AND CONSOLIDATED SUBSIDIARIES
STATEMENT OF CONSOLIDATED CASH FLOWS
Six Months Ended June 30
(in thousands)
<TABLE>
<CAPTION>
1997 1996
--------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 46,245 $ 442,424
Adjustments to reconcile net income to net cash
provided by operating activities
Depreciation, depletion, amortization and lease impairment 367,826 385,108
Exploratory dry hole costs 76,466 67,039
Pre-tax gain on asset sales (16,463) (429,009)
Changes in operating assets and liabilities 343,315 121,270
Deferred income taxes and other items (25,640) (10,556)
--------- -----------
Net cash provided by operating activities 791,749 576,276
--------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures (611,958) (330,666)
Proceeds from asset sales and other 59,873 877,164
--------- -----------
Net cash provided by (used in) investing activities (552,085) 546,498
--------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (decrease) in notes payable 137,000 (77,200)
Long-term borrowings 29,000 --
Repayment of long-term debt and capitalized lease obligations (205,910) (1,027,558)
Cash dividends paid (41,637) (41,794)
Common stock acquired (81,965) --
--------- -----------
Net cash used in financing activities (163,512) (1,146,552)
--------- -----------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (1,717) 1,857
--------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 74,435 (21,921)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 112,522 56,071
--------- -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 186,957 $ 34,150
========= ===========
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 5
PART I - FINANCIAL INFORMATION (CONT'D.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands)
Note 1 - The financial statements included in this report reflect all normal
and recurring adjustments which, in the opinion of management, are
necessary for a fair presentation of the Company's consolidated
financial position at June 30, 1997 and December 31, 1996, and the
consolidated results of operations for the three and six-month
periods ended June 30, 1997 and 1996 and the consolidated cash flows
for the six-month periods ended June 30, 1997 and 1996. The
unaudited results of operations for the interim periods reported are
not necessarily indicative of results to be expected for the full
year.
Certain notes and other information have been condensed or omitted
from these interim financial statements. Such statements, therefore,
should be read in conjunction with the consolidated financial
statements and related notes included in the 1996 Annual Report to
Stockholders, which have been incorporated by reference in the
Corporation's Form 10-K for the year ended December 31, 1996.
Note 2 - Inventories consist of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
-------- ----------
<S> <C> <C>
Crude oil and other charge stocks $341,579 $ 441,071
Refined and other finished products 554,452 734,141
Materials and supplies 97,222 97,100
-------- ----------
Total inventories $993,253 $1,272,312
======== ==========
</TABLE>
Note 3 - The provision for income taxes consisted of the following:
<TABLE>
<CAPTION>
Three months Six months
ended June 30 ended June 30
------------------------ -------------------------
1997 1996 1997 1996
-------- -------- --------- --------
<S> <C> <C> <C> <C>
Current $ 44,620 $101,992 $ 145,406 $177,776
Deferred (10,076) 29,277 (652) 9,021
-------- -------- --------- --------
Total $ 34,544 $131,269 $ 144,754 $186,797
======== ======== ========= ========
</TABLE>
Note 4 - Foreign currency exchange transactions are reflected in selling,
general and administrative expenses. The net effect, after
applicable income taxes, amounted to losses of $1,832 and $449,
respectively, for the three and six-month periods ended June 30,
1997 compared to gains of $516 and $2,643 for the corresponding
periods of 1996.
4
<PAGE> 6
PART I - FINANCIAL INFORMATION (CONT'D.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands)
Note 5 - The Corporation uses futures, forwards, options and swaps to reduce
the impact of fluctuations in the prices of crude oil, natural gas
and refined products. These contracts correlate to movements in the
value of inventory and the prices of crude oil and natural gas, and
as hedges, any resulting gains or losses are recorded as part of the
hedged transaction. Net deferred losses resulting from the
Corporation's hedging activities were approximately $6,000 at June
30, 1997, including $1,000 of unrealized losses.
Note 6 - Interest cost related to certain long-term construction projects has
been capitalized in accordance with FAS No. 34. During the three and
six-month periods ended June 30, 1997, interest cost of $1,770 and
$3,287, respectively, was capitalized. There was no interest
capitalized for the corresponding periods of 1996.
Note 7 - In the second quarter of 1997, the Corporation refinanced its
revolving credit agreements in the United States and the United
Kingdom. These agreements were replaced with a new revolving credit
facility with an available global borrowing capacity of $2,000,000.
The Corporation's United Kingdom and Norwegian subsidiaries may
borrow on an unguaranteed basis subject to sub-limits of $1,000,000
and $250,000, respectively. Other subsidiaries may borrow with a
parent company guarantee.
The new facility is due in 2002 and may be extended with the consent
of the lenders. Capacity may be increased by $400,000, also with
lender approval. Borrowings bear interest at a margin above the
London Interbank Offered Rate ("LIBOR") based on the Corporation's
capitalization ratio. The current borrowing rate is .165% above
LIBOR. Facility fees of .11% per annum are payable on the amount of
the credit line.
5
<PAGE> 7
PART I - FINANCIAL INFORMATION (CONT'D.)
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION.
RESULTS OF OPERATIONS
Income excluding asset sales for the second quarter of 1997
amounted to $31 million compared with $26 million for the second
quarter of 1996. Income excluding asset sales for the first half of
1997 was $35 million compared with $92 million for the first half of
1996. Net gains on asset sales amounted to $11 million in 1997 and
$350 million in 1996.
The after-tax results by major operating activity for the three
and six month periods ended June 30, 1997 and 1996 were as follows (in
millions):
<TABLE>
<CAPTION>
Three months Six months
ended June 30 ended June 30
----------------- ------------------
1997 1996 1997 1996
---- ----- ----- -----
<S> <C> <C> <C> <C>
Exploration and production $ 64 $ 31 $ 161 $ 99
Refining, marketing and shipping 3 35 (53) 79
Corporate (7) (6) (14) (11)
Interest expense (29) (34) (59) (75)
---- ----- ----- -----
Income excluding asset sales 31 26 35 92
Net gains on asset sales 11 350 11 350
---- ----- ----- -----
Net income $ 42 $ 376 $ 46 $ 442
==== ===== ===== =====
Net income per share $.45 $4.04 $ .50 $4.75
==== ===== ===== =====
</TABLE>
The 1997 asset sale represents the sale of a small onshore United
States natural gas property. The 1996 asset sales reflect the
disposals of the Corporation's Canadian operations, certain United
States oil and gas properties and Abu Dhabi assets.
Excluding asset sales, earnings from exploration and production
activities increased by $33 million in the second quarter of 1997 and
$62 million in the first half of 1997, compared with the corresponding
periods of 1996. The increases were primarily due to higher crude oil
selling prices (including the effects of hedging) in the United States,
increased earnings of a foreign equity investment and lower effective
income tax rates on foreign earnings.
6
<PAGE> 8
PART I - FINANCIAL INFORMATION (CONT'D.)
RESULTS OF OPERATIONS (CONTINUED)
The Corporation's average selling prices, including the effects of
hedging, were as follows:
<TABLE>
<CAPTION>
Three months Six months
ended June 30 ended June 30
----------------------- -----------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Crude oil and natural gas liquids
(per barrel)
United States $ 17.92 $ 15.41 $ 19.29 $ 15.61
Foreign 17.66 19.12 19.61 18.66
Natural gas (per Mcf)
United States(*) 2.11 2.20 2.42 2.42
Foreign 2.32 1.79 2.34 1.75
</TABLE>
(*) Includes sales of purchased gas.
The increase in the United States crude oil selling price
indicated above largely reflects improved hedging results in 1997. The
increase in the average foreign natural gas price reflects higher
selling prices in the United Kingdom and the absence of lower priced
Canadian gas in 1997. The Corporation's Canadian operations were sold
in April 1996.
The Corporation's net daily worldwide production was as follows:
<TABLE>
<CAPTION>
Three months Six months
ended June 30 ended June 30
-------------------- ---------------------
1997 1996 1997 1996
------- ------- ------- -------
<S> <C> <C> <C> <C>
Crude oil and natural gas liquids
(barrels per day)
United States 43,158 55,197 43,018 56,186
Foreign 164,867 182,980 178,297 190,201
------- ------- ------- -------
Total 208,025 238,177 221,315 246,387
======= ======= ======= =======
Natural gas (Mcf per day)
United States 313,570 361,114 319,728 381,062
Foreign 250,823 316,373 286,857 446,641
------- ------- ------- -------
Total 564,393 677,487 606,585 827,703
======= ======= ======= =======
</TABLE>
7
<PAGE> 9
PART I - FINANCIAL INFORMATION (CONT'D.)
RESULTS OF OPERATIONS (CONTINUED)
United States crude oil and natural gas production was lower in
1997, principally reflecting asset sales in the second and third
quarters of 1996. The decrease in foreign crude oil production
reflects lower United Kingdom volumes due to temporary production
interruptions on certain fields, partially offset by production from
new fields. 1996 asset sales also contributed to reduced foreign crude
oil and natural gas production, particularly the sale of the
Corporation's Canadian operations.
Depreciation, depletion, amortization and lease impairment charges
were lower in 1997 primarily reflecting the lower production volumes
discussed above. Exploration expenses were higher in the second
quarter of 1997, due to increased activity in the North Sea and other
international areas, partially offset by reduced exploration expenses
in the United States. The effective income tax rate on foreign
exploration and production earnings was lower in 1997, primarily due
to lower Petroleum Revenue Taxes ("PRT") in the United Kingdom,
reflecting lower pre-tax earnings from PRT paying fields and increased
deductible allowances. Income taxes were also reduced by the
utilization of a net operating loss carryforward of a foreign
subsidiary. It is expected that this subsidiary will be in a taxable
position in the second half of the year.
The Corporation's exploration and production earnings are subject
to changes in the selling prices of crude oil and natural gas, the
level of exploration spending, the extent of field maintenance,
effective income tax rates and other factors. The Corporation
anticipates that a substantial amount of its 1997 exploration
expenditures will be incurred in the third quarter.
Refining, marketing and shipping operations had income of $3
million in the second quarter of 1997 compared with $35 million in the
second quarter of 1996. The decrease was due to lower refined product
margins. Selling prices decreased by approximately $2.00 per barrel,
while product costs, accounted for on the first-in, first-out and
average cost methods, decreased to a lesser extent.
In the first half of 1997, refining, marketing and shipping
operations incurred a loss of $53 million compared with income of $79
million in the first half of 1996. Refined product margins were lower
in 1997, including margins for distillates and residual fuel oils
which were negatively impacted by the relatively mild winter on the
east coast of the United States. A substantial amount of the 1997 loss
related to a refining subsidiary for which income tax benefits are not
provided due to a cumulative loss carryforward.
Refined product sales volumes amounted to 95 million barrels in
the first half of 1997 compared with 101 million barrels in the first
half of 1996. Refining and marketing earnings will continue to be
volatile because of competitive industry conditions and other supply
and demand factors, including the effects of weather.
8
<PAGE> 10
PART I - FINANCIAL INFORMATION (CONT'D.)
RESULTS OF OPERATIONS (CONTINUED)
Interest expense (after-tax) decreased by 15% in the second
quarter of 1997 and 21% in the first half of 1997, compared with the
corresponding periods of 1996, due to lower debt levels. Interest in
the second half of 1997 is expected to approximate the amount incurred
in the corresponding period of 1996.
Corporate expenses were comparable in the second quarters of 1997
and 1996, but increased slightly in the first half of 1997 compared
with the first half of 1996. The increase resulted largely from
Corporate income tax adjustments.
Sales and other operating revenues decreased by 12% in the second
quarter of 1997, principally reflecting lower sales volumes and
selling prices of refined products. Sales and operating revenues in
the first half of 1997 were 2% below the corresponding period of 1996
due to lower refined product sales volumes. Non-operating revenues
included the gain of $429 million from the Corporation's program of
asset sales in the first half of 1996. Selling, general and
administrative expenses include approximately $16 million and $12
million in the first half of 1997 and 1996, respectively, for the
Corporation's financial reengineering project and related systems and
software.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities, including changes in
operating assets and liabilities, amounted to $792 million in the
first half of 1997 compared with $576 million in the first half of
1996. The increase was primarily due to changes in working capital
components. Cash flow resulting from net income excluding asset sales,
adjusted for non-cash charges, amounted to $479 million and $553
million in the first half of 1997 and 1996, respectively. In 1996, the
Corporation generated proceeds of approximately $860 million from
asset sales, resulting in a substantial decrease in debt.
Total debt was $1,898 million at June 30, 1997 compared with
$1,939 million at December 31, 1996, resulting in debt to total
capitalization ratios of 36.5% and 36.4%, respectively. At June 30,
1997, the Corporation had additional borrowing capacity available
under its revolving credit agreement of $1,523 million and additional
unused lines of credit under uncommitted arrangements with banks of
$378 million.
In the second quarter of 1997, the Corporation refinanced its
revolving credit agreements in the United States and the United
Kingdom with a $2 billion, five-year, unsecured global revolving
credit facility. The new facility replaced $2.2 billion in credit
facilities, which would have begun to expire in 1999. The new facility
has interest rate differentials and fees which are lower than under
the credit agreements that were replaced.
9
<PAGE> 11
PART 1 - FINANCIAL INFORMATION (CONT'D.)
LIQUIDITY AND CAPITAL RESOURCES (CONTINUED)
Since inception of the Corporation's stock repurchase program in
August 1996, through June 30, 1997, 1,756,400 shares have been
purchased at a cost of approximately $91 million, including $82
million in 1997.
In the second quarter of 1997, the Corporation received
approximately $25 million under a United Kingdom court ruling in a
legal dispute related to a natural gas pipeline partially owned by the
Corporation. A substantial amount of the after-tax gain has been
deferred pending the outcome of an appeal of the ruling.
The Corporation uses futures, forwards, options and swaps to
reduce the effects of fluctuations in the prices of crude oil, natural
gas and refined products. These instruments are used to set the
selling prices of crude oil, natural gas and refined products and the
related gains or losses are an integral part of the Corporation's
selling prices. At June 30, 1997, the Corporation had open hedge
positions equal to 6% of its estimated worldwide crude oil production
over the next twelve months. In certain circumstances, hedge
counterparties may elect to purchase up to an additional 1% of this
production. The Corporation also had open contracts equal to 3% of its
estimated United States natural gas production over the next twelve
months and approximately 1% of its production for the succeeding
twelve months. The Corporation had hedges covering 64% of its refining
and marketing inventories and had additional short positions
approximating 6% of refined products to be manufactured in the next
twelve months. As market conditions change, the Corporation will
adjust its hedge positions.
Capital expenditures in the first half of 1997 amounted to $612
million compared with $331 million in the first half of 1996. Capital
expenditures in 1997 include $155 million for the acquisition of oil
and gas properties in the United Kingdom North Sea and a chain of
retail marketing properties in Florida. Capital expenditures for
exploration and production activities were $507 million in the first
half of 1997 compared with $314 million in the first six months of
1996.
Capital expenditures for the remainder of 1997 are currently
expected to be approximately $700 million, the majority of which is
expected to be financed by internally generated funds and the
remainder by increased long-term borrowings.
10
<PAGE> 12
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS.
The Annual Meeting of Stockholders of the Registrant was held on
May 7, 1997. The Inspectors of Election reported that 78,343,285
shares of Common Stock of the Registrant were represented in person or
by proxy at the meeting, constituting 84.9% of the votes entitled to
be cast. At the meeting, stockholders voted upon the election of five
nominees for the Board of Directors for the three-year term expiring
in 2000 and the ratification of the selection by the Board of
Directors of Ernst & Young LLP as the independent auditors of the
Registrant for the fiscal year ended December 31, 1997.
With respect to the election of directors, the inspectors of
election reported as follows:
<TABLE>
<CAPTION>
For Withhold Authority to Vote
Name Nominee Listed For Nominee Listed
---- -------------- --------------------------
<S> <C> <C>
Peter S. Hadley 77,165,932 1,177,353
John B. Hess 77,173,045 1,170,240
William R. Johnson 70,116,670 8,226,615
John Y. Schreyer 77,173,103 1,170,182
William I. Spencer 77,147,970 1,195,315
</TABLE>
The inspectors further reported that 78,157,723 votes were cast
for the ratification of the selection of Ernst & Young LLP as
independent auditors for the fiscal year ending December 31, 1997,
76,966 votes were cast against said ratification and holders of 108,596
votes abstained.
There were no broker non-votes with respect to the election of
directors or the ratification of the selection of independent auditors.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
4 - Credit Agreement dated as of May 20, 1997 among Registrant, the
Subsidiary Borrowers thereunder, The Chase Manhattan Bank as
Administrative Agent and the Lenders party thereto.
(b) Reports on Form 8-K
The Registrant filed no report on Form 8-K during the three
months ended June 30, 1997.
11
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERADA HESS CORPORATION
(REGISTRANT)
By s/s John B. Hess
----------------------------
JOHN B. HESS
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
By s/s John Y.Schreyer
----------------------------
JOHN Y. SCHREYER
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
Date: August 11, 1997
12
<PAGE> 14
EXHIBIT INDEX
4 - Credit Agreement dated as of May 20, 1997 among Registrant, the
Subsidiary Borrowers thereunder, The Chase Manhattan Bank as
Administrative Agent and the Lenders party thereto.
<PAGE> 1
CREDIT AGREEMENT
dated as of
May 20, 1997
among
AMERADA HESS CORPORATION,
AMERADA HESS LIMITED,
AMERADA HESS NORGE A/S,
AMERADA HESS A/S,
THE OTHER SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$2,000,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C> <C>
ARTICLE I
Definitions.............................. 2
SECTION 1.01. Defined Terms......................................... 2
SECTION 1.02. Classification of Loans and Borrowings................ 20
SECTION 1.03. Terms Generally....................................... 20
SECTION 1.04. Accounting Terms; GAAP................................ 21
ARTICLE II
The Credits.............................. 21
SECTION 2.01. Commitments........................................... 21
SECTION 2.02. Loans, Acceptances and Borrowings..................... 21
SECTION 2.03. Requests for Revolving Borrowings..................... 23
SECTION 2.04. Bid Procedure for Competitive Loans................... 24
SECTION 2.05. Bid Procedure for Bankers' Acceptances................ 27
SECTION 2.06. Funding of Borrowings................................. 31
SECTION 2.07. Interest Elections.................................... 32
SECTION 2.08. Termination and Reduction of Commitments; Extension of
Maturity Date....................................... 33
SECTION 2.09. Repayment of Loans; Evidence of Debt.................. 35
SECTION 2.10. Prepayment of Loans................................... 36
SECTION 2.11. Fees.................................................. 37
SECTION 2.12. Interest.............................................. 37
SECTION 2.13. Alternate Rate of Interest............................ 38
SECTION 2.14. Increased Costs....................................... 39
SECTION 2.15. Break Funding Payments................................ 40
SECTION 2.16. Taxes................................................. 41
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs............................................ 42
SECTION 2.18. Mitigation Obligations; Replacement of Lenders........ 44
SECTION 2.19. Controls; Because of Currency Exchange Rate
Fluctuations........................................ 45
SECTION 2.20. Commitment Increases.................................. 45
ARTICLE III
Company Representations and Warranties............ 46
SECTION 3.01. Corporate Existence and Power; Compliance with Law.... 47
SECTION 3.02. Corporate Authority................................... 47
SECTION 3.03. Enforceability........................................ 47
SECTION 3.04. Financial Condition................................... 47
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.05. Litigation............................................ 48
SECTION 3.06. ERISA................................................. 48
SECTION 3.07. Environmental Matters................................. 48
SECTION 3.08. Federal Regulations................................... 48
SECTION 3.09. Investment and Holding Company Status................. 48
ARTICLE IV
Subsidiary Borrower Representations and Warranties........... 49
SECTION 4.01. Corporate Existence and Power; Compliance with Law.... 49
SECTION 4.02. Corporate Authority................................... 49
SECTION 4.03. Enforceability........................................ 49
SECTION 4.04. Financial Condition................................... 50
SECTION 4.05. Litigation............................................ 50
SECTION 4.06. Environmental Matters................................. 50
SECTION 4.07. Federal Regulations................................... 51
SECTION 4.08. Investment and Holding Company Status................. 51
ARTICLE V
Conditions............................... 51
SECTION 5.01. Effective Date........................................ 51
SECTION 5.02. Conditions to Credit Event of the Company............. 53
SECTION 5.03. Conditions to Credit Event of any Subsidiary
Borrower............................................ 54
ARTICLE VI
Affirmative Covenants of the Company.................. 54
SECTION 6.01. Financial Statements and Other Information............ 54
SECTION 6.02. Notices of Material Events............................ 56
SECTION 6.03. Existence; Conduct of Business........................ 56
SECTION 6.04. Compliance with Contractual Obligations............... 56
SECTION 6.05. Records, etc.......................................... 56
SECTION 6.06. Insurance............................................. 56
SECTION 6.07. Compliance with Laws.................................. 57
SECTION 6.08. Use of Proceeds and Acceptances....................... 57
ARTICLE VII
Affirmative Covenants of Unguaranteed Borrowers............ 57
SECTION 7.01. Financial Statements and Other Information............ 57
SECTION 7.02. Notices of Material Events............................ 59
SECTION 7.03. Existence; Conduct of Business........................ 59
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 7.04. Compliance with Contractual Obligations............... 59
SECTION 7.05. Records, etc.......................................... 59
SECTION 7.06. Insurance............................................. 59
SECTION 7.07. Compliance with Laws.................................. 60
ARTICLE VIII
Negative Covenants of the Company................... 60
SECTION 8.01. Financial Covenant.................................... 61
SECTION 8.02. Liens................................................. 61
SECTION 8.03. Fundamental Changes................................... 62
SECTION 8.04. Restrictive Agreements................................ 62
ARTICLE IX
Negative Covenants of Unguaranteed Borrowers.............. 63
SECTION 9.01. Financial Covenant.................................... 63
SECTION 9.02. Liens................................................. 63
SECTION 9.03. Fundamental Changes................................... 64
ARTICLE X
Events of Default........................... 65
ARTICLE XI
Guarantee............................... 68
SECTION 11.01. Guarantee............................................ 68
SECTION 11.02. No Subrogation....................................... 69
SECTION 11.03. Amendments, etc...................................... 69
SECTION 11.04. Guarantee Absolute and Unconditional................. 70
SECTION 11.05. Reinstatement........................................ 71
SECTION 11.06. Payments............................................. 71
ARTICLE XII
The Administrative Agent........................ 71
ARTICLE XIII
Miscellaneous............................. 73
SECTION 13.01. Notices.............................................. 73
SECTION 13.02. Waivers; Amendments.................................. 74
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 13.03. Expenses; Indemnity; Damage Waiver................... 77
SECTION 13.04. Successors and Assigns............................... 78
SECTION 13.05. Survival............................................. 81
SECTION 13.06. Counterparts; Integration; Effectiveness............. 81
SECTION 13.07. Severability......................................... 81
SECTION 13.08. Right of Setoff...................................... 82
SECTION 13.09. Governing Law; Jurisdiction; Consent to Service
of Process; Process Agent; Waiver of Immunity...... 82
SECTION 13.10. WAIVER OF JURY TRIAL................................. 83
SECTION 13.11. Headings............................................. 83
SECTION 13.12. Confidentiality...................................... 84
SECTION 13.13. Judgment............................................. 84
</TABLE>
SCHEDULES:
Schedule A -- Cancelled Credit Facilities
Schedule B -- Designated Foreign Currencies
Schedule C -- Subsidiary Borrowers
Schedule D -- Calculation of the MLA Cost
Schedule 2.01 -- Commitments
Schedule 2.05 -- Information Concerning Transactions Financed by
Acceptances
Schedule 8.02 -- Existing Liens of the Company
Schedule 9.02 -- Existing Liens of Unguaranteed Borrowers
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Draft
Exhibit C-1 -- Form of Opinion of U.S. Counsel to the Parent Borrower
Exhibit C-2 -- Form of Opinion of Foreign Counsel to a Subsidiary
Borrower
Exhibit D -- Form of Joinder Agreement
Exhibit E -- Form of Commitment Increase Supplement
Exhibit F -- Form of New Lender Supplement
Exhibit G -- Form of Power of Attorney
Exhibit H -- Forms of Notes
-iv-
<PAGE> 6
CREDIT AGREEMENT, dated as of May 20, 1997, among:
(i) AMERADA HESS CORPORATION, a Delaware corporation (the
"Company");
(ii) AMERADA HESS LIMITED, an English corporation ("AHL"), AMERADA
HESS NORGE A/S, a Norwegian corporation ("AHN"), and any other Subsidiary
of the Company from time to time designated as an Unguaranteed Borrower in
the manner specified in Section 13.02 (AHL, AHN and such other
Subsidiaries so designated, collectively, the "Unguaranteed Borrowers");
(iii) AMERADA HESS A/S, a Danish corporation ("Hess-Denmark"), and
any other Subsidiary of the Company from time to time designated as a
Guaranteed Borrower in the manner specified in Section 13.02 (Hess-Denmark
and such other Subsidiaries so designated, collectively the "Guaranteed
Borrowers"; the Guaranteed Borrowers, together with the Company and the
Unguaranteed Borrowers, collectively, the "Borrowers");
(iv) the LENDERS party hereto; and
(v) THE CHASE MANHATTAN BANK, a New York banking corporation, as
Administrative Agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to establish credit
facilities to be used by the Company and its Subsidiaries to refinance certain
existing indebtedness and for other general corporate purposes; and
WHEREAS, the Lenders are willing to establish such credit facilities
on and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
<PAGE> 7
ARTICLE I
2
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, means that
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acceptance" means a Draft that is drawn by the Company or any New
York Subsidiary Borrower on an Acceptance Lender and accepted by such Lender in
accordance with this Agreement.
"Acceptance Bid" means an offer by an Acceptance Lender to create
and discount Acceptances in accordance with Section 2.05.
"Acceptance Bid Request" means a request by the Company or any New
York Subsidiary Borrower for Acceptance Bids in accordance with Section 2.05.
"Acceptance Date" means, in respect of an Acceptance, the date on
which an Acceptance Lender creates such Acceptance pursuant to Section 2.05.
"Acceptance Lenders" means Lenders from time to time designated as
Acceptance Lenders by the Company by written notice to the Administrative Agent
(which notice the Administrative Agent shall transmit to each such Acceptance
Lender).
"Acceptance Obligation" means, in respect of each Acceptance, the
obligation of the Borrower in respect thereof to the Acceptance Lender creating
such Acceptance to pay the face amount thereof as required by Section 2.05.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/32 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning ascribed to it in the
Preamble.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
<PAGE> 8
3
"AHL" has the meaning ascribed to it in the Preamble.
"AHN" has the meaning ascribed to it in the Preamble.
"Allocated Commitment Amount" means, with respect to any Borrower,
the portion of the Commitments of the Lenders allocated by the Company from time
to time pursuant to Section 2.01(b) for usage by such Borrower.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurocurrency Spread" or "Facility Fee Rate", as the case may
be, based upon the Company Capitalization Ratio applicable on such day:
<PAGE> 9
4
<TABLE>
<CAPTION>
============================================================================================
Company Eurocurrency Spread Facility Fee Rate
Capitalization Ratio:
- --------------------------------------------------------------------------------------------
<S> <C> <C>
Less than 30% .135% .09%
- --------------------------------------------------------------------------------------------
Greater than or Equal to 30% and less than 45% .165% .11%
- --------------------------------------------------------------------------------------------
Greater than or Equal to 45% .20% .125%
============================================================================================
</TABLE>
Changes in the Applicable Rate resulting from changes in the Company
Capitalization Ratio shall become effective on the first day (the "Adjustment
Date") of the month following the month in which financial statements are
delivered to the Lenders pursuant to Section 6.01 (a) and (b) and shall remain
in effect until the next change to be effected pursuant to this paragraph (it
being agreed that until the first Adjustment Date, the Company Capitalization
Ratio shall be deemed to be 34.7%). If any financial statements referred to
above are not delivered within the time periods specified above, then, from the
date on which such financial statements are due pursuant to Section 6.01 (a) and
(b) until such financial statements are delivered, the Company Capitalization
Ratio as at the end of the fiscal period that would have been covered thereby
shall for the purposes of this definition be deemed to be greater than 45%.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 13.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
<PAGE> 10
5
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" has the meaning ascribed to it in the Preamble.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by a Borrower for Revolving
Loans in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that the term "Business Day" shall also exclude (i)
when used in connection with a Eurocurrency Loan in dollars, any day on which
banks are not open for dealings in dollar deposits in the London interbank
market and (ii) when used in connection with a Eurocurrency Loan in any
Designated Foreign Currency, any day on which banks are not open for dealings in
such Designated Foreign Currency in London, England or the principal financial
center of such Designated Foreign Currency.
"Capital Lease" means, with respect to any Person which is the
lessee thereunder, any lease or charter of property, real or personal, which
would, in accordance with GAAP, be recorded as an asset under a capital lease on
a balance sheet of such Person.
"Capitalized Lease Obligation" means, with respect to any Person on
any date, the amount which would, in accordance with GAAP, be recorded as an
obligation under a Capital Lease on a balance sheet of such Person as lessee
under such Capital Lease as at such date. For all purposes of this Agreement,
Capitalized Lease Obligations shall be deemed to be Debt secured by a Lien.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
<PAGE> 11
6
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 or Section 13.02(d), (b) increased from
time to time pursuant to Section 2.20 and (c) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 13.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable.
"Commitment Increase Supplement" means a Commitment Increase
Supplement, substantially in the form of Exhibit E, executed and delivered
pursuant to Section 2.08 or Section 2.20.
"Company" has the meaning ascribed to it in the Preamble.
"Company Capitalization Ratio" means, on any date, the ratio,
expressed as a percentage of Total Consolidated Debt of the Company and its
Consolidated Subsidiaries on such date to Total Capitalization of the Company
and its Consolidated Subsidiaries on such date.
"Competitive", when used in reference to any Loan or Borrowing,
means that such Loan, or the Loans comprising such Borrowing, are being made in
accordance with Section 2.04.
"Competitive Bid" means an offer by a Competitive Loan Lender to
make a Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Competitive Loan
Lender making such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan Lenders" means Lenders from time to time
designated as Competitive Loan Lenders by the Company by written notice to the
Administrative Agent (which notice the Administrative Agent shall transmit to
each such Competitive Lender).
<PAGE> 12
7
"Consolidated Current Liabilities" means, with respect to any Person
on any date, all amounts which, in conformity with GAAP, would be classified as
current liabilities on a consolidated balance sheet of such Person and its
Consolidated Subsidiaries as at such date.
"Consolidated Intangibles" means, with respect to any Person on any
date, all assets of such Person and its Consolidated Subsidiaries, determined on
a consolidated basis, that would, in conformity with GAAP, be classified as
intangible assets on a consolidated balance sheet of such Person and its
Consolidated Subsidiaries as at such date, including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of the fair market value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of all write-ups in the book value of assets resulting from any
revaluation thereof (other than revaluations arising out of foreign currency
valuations in conformity with GAAP).
"Consolidated Net Tangible Assets" means, with respect to any Person
on any date, the amount equal to (a) the amount that would, in conformity with
GAAP, be included as assets on the consolidated balance sheet of such Person and
its Consolidated Subsidiaries as at such date minus (b) the sum of (i)
Consolidated Intangibles of such Person at such date and (ii) Consolidated
Current Liabilities of such Person at such date.
"Consolidated Subsidiaries" means, with respect to any Person on any
date, all Subsidiaries and other entities whose accounts are consolidated with
the accounts of such Person as of such date in accordance with the principles of
consolidation reflected in the audited financial statements of such Person as of
such date delivered in accordance with Section 6.01 or 7.01, as the case may be.
"Continuing Directors" has the meaning set forth in Article X.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Debt" means with respect to any Person (i) indebtedness for
borrowed money (including, without limitation, indebtedness evidenced by debt
securities); (ii) obligations to pay the deferred purchase price of property or
services, except trade accounts payable in the ordinary course of business; and
(iii) Capitalized Lease
<PAGE> 13
8
Obligations, in the case of each of the foregoing clauses (i) through (iii), for
which such Person or any of its Consolidated Subsidiaries shall be liable as
primary obligor or under any Guaranty of any such indebtedness or other such
obligations of an entity not included in such Person's consolidated financial
statements and (iv) any such indebtedness or other such obligations of any
entity not included in such Person's consolidated financial statements secured
in any manner by any Lien upon any assets of such Person or any of its
Consolidated Subsidiaries; provided that for purposes of the computation of any
Debt under this Agreement there shall be no duplication of any item of primary
or other indebtedness or other obligation referred to hereinabove, whether such
item reflects the indebtedness or other obligation of such Person or any of its
Consolidated Subsidiaries or of any entity not included in such Person's
consolidated financial statements; and provided, further, that when computing
Debt of the Company under this Agreement the first $100,000,000 in the aggregate
for which the Company and its Consolidated Subsidiaries shall be liable under
any Guaranty of any such indebtedness or other such obligations of an entity not
included in the Company's consolidated financial statements shall be excluded
from the computation of Debt of the Company.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Foreign Currencies" means the currencies set forth on
Schedule B and any other available and freely convertible foreign currency
requested by the Company and approved by the Administrative Agent and all of the
Lenders in accordance with Section 13.02(c)(v).
"Designated Maximum" means (a) with respect to AHL, subject to
subsection 5.01(h), $1,000,000,000, (b) with respect to AHN, $250,000,000 and
(c) with respect to any Subsidiary of the Company that becomes an Unguaranteed
Borrower after the Effective Date in the manner specified in Section 13.02, the
amount determined by the Lenders pursuant to such Section as the Designated
Maximum of such Unguaranteed Borrower, in each case as such amounts may be
reduced in the manner specified in Section 2.08(b) or increased with the written
consent of all Lenders in accordance with Section 13.02.
"Dollar Equivalent" means, with respect to any amount outstanding in
any currency other than dollars, at any date of determination thereof, an amount
in dollars equivalent to such principal amount or such other amount calculated
on the basis of the Spot Rate of Exchange.
"dollars" or "$" refers to lawful money of the United States of
America.
<PAGE> 14
9
"Draft" means a draft, substantially in the form of Exhibit B, drawn
hereunder by the Company or any New York Subsidiary Borrower on an Acceptance
Lender.
"Effective Date" means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 13.02).
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or the release of any
materials into the environment.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any of its
Consolidated Subsidiaries directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency", when used in reference to any Loan or Borrowing,
means that such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in
Article X.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of any Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which any Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by any Borrower under
Section 2.18(b)) or any foreign branch or Affiliate of a Lender caused by such
Lender to make a Loan under Section 2.02(b), any withholding tax that is imposed
by the United States of America, the United Kingdom, Norway or Denmark on
amounts payable to such Foreign
<PAGE> 15
10
Lender at the time such Foreign Lender becomes a party to this Agreement or such
foreign branch or Affiliate is caused to make such a Loan or is attributable to
such Foreign Lender's or such foreign branch's or Affiliate's failure or
inability to comply with Section 2.16(e), except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from any Borrower with respect to such withholding tax
pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means, with respect to a Borrower, the chief
financial officer, principal accounting officer, treasurer or controller or, in
the case of AHL, AHN or Hess Denmark, a director of such Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than
a Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Currency" means, with respect to any Competitive Loan
requested by a Borrower to be denominated in any currency other than dollars,
any Designated Foreign Currency or other freely-convertible currency requested
by such Borrower and acceptable to the Lender that submits a Competitive Loan
Bid with respect to such requested Competitive Loan (such acceptability being
evidenced by submission of such Competitive Loan Bid in such requested
currency).
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower from such Lender is
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"GAAP" means for all purposes hereof generally accepted accounting
principles in the United States of America; provided, that when such term is
used for purposes of Section 4.04 or Section 7.01(a) in respect of audited
financial statements of any Person that is incorporated under the laws of any
jurisdiction outside the United States and whose financial statements are
prepared and reported on in accordance with
<PAGE> 16
11
generally accepted accounting principles of such jurisdiction, such term shall
mean such generally accepted accounting principles.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guaranteed Borrower" has the meaning ascribed to it in the
Preamble; each Guaranteed Borrower is listed on Schedule C, as such Schedule may
be amended from time to time in accordance with Section 13.02.
"Guaranteed Borrower Obligations" means the unpaid principal of, and
interest on (including post-petition interest), the Loans made to any of the
Guaranteed Borrowers, the Acceptances created for the account of any of the
Guaranteed Borrowers and other obligations and liabilities of any of the
Guaranteed Borrowers to the Administrative Agent and the Lenders, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement (including, without limitation, any amendment and restatement hereof),
the Loans made to any of the Guaranteed Borrowers, the Acceptances created for
the account of any of the Guaranteed Borrowers or any other document executed
and delivered in connection with any of the foregoing, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or any Lender) or otherwise.
"Guaranty" by any Person means any direct or indirect undertaking to
assume, guaranty, endorse, contingently agree to purchase or to provide funds
for the payment of, or otherwise become liable in respect of, any obligation of
any other Person, excluding endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by a Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.07.
<PAGE> 17
12
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
during such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than 7 days or
more than 365 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period, (iii) except with respect to
any Competitive Loan Lender which otherwise agrees, any Interest Period that
otherwise would extend beyond the Maturity Date applicable to any Lender shall
end on the Maturity Date applicable to such Lender and (iv) any Interest Period
pertaining to a Eurocurrency Borrowing denominated in any Designated Foreign
Currency being replaced by the currency of the European Monetary Union that
would otherwise extend beyond the date on which such replacement becomes
effective shall end on such date. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Joinder Agreement" means a Joinder Agreement, substantially in the
form of Exhibit D, executed and delivered pursuant to Section 13.02(c)(i).
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other
<PAGE> 18
13
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance.
"LIBO Rate" means, with respect to each Interest Period pertaining
to a Eurocurrency Loan, the rate per annum determined by the Administrative
Agent to be the offered rate for deposits in such currency with a term
comparable to such Interest Period that appears on the applicable Telerate Page
at approximately 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period plus, in the case of any such Eurocurrency
Loan denominated in Pounds Sterling, the MLA Cost; provided, however, that if at
any time for any reason such offered rate for any such currency does not appear
on the applicable Telerate Page, "LIBO Rate" shall mean, with respect to each
day during each Interest Period pertaining to a Eurocurrency Loan denominated in
such currency, the rate per annum equal to the average (rounded upward to the
nearest 1/32nd of 1%) of the respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate at which such Reference
Lender is offered deposits in such currency at or about 11:00 A.M., London time,
two Business Days prior to the beginning of such Interest Period in the London
interbank market for delivery on the first day of such Interest Period for the
number of days comprised therein.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing), any conditional sale or other title retention agreement, or any
lease in the nature thereof.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"London Subsidiary Borrower" has the meaning set forth in Section
2.03.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means (a) when used in any representation
and warranty or covenant of the Company on and as of the Effective Date, any
event, development or circumstance that has had or could reasonably be expected
to have a material adverse effect on (i) the business, assets, property or
financial condition of the Company and its Consolidated Subsidiaries taken as a
whole, or (ii) the validity or enforceability of this Agreement or the rights
and remedies of the Administrative Agent and the Lenders hereunder, (b) when
used in any representation and warranty or covenant of any Unguaranteed Borrower
on and as of the Effective Date, any event, development or circumstance that has
had or could reasonably be expected to have a material adverse effect on (i) the
business, assets, property or financial condition of the Company and its
Consolidated Subsidiaries taken as a whole or of such Unguaranteed Borrower and
its
<PAGE> 19
14
Consolidated Subsidiaries taken as a whole, or (ii) the validity or
enforceability of any of this Agreement or the rights and remedies of the
Administrative Agent and the Lenders hereunder, (c) when used in any
representation and warranty or covenant of the Company on any date after the
Effective Date, any change in the consolidated financial condition or operations
of the Company and its Consolidated Subsidiaries from that set forth in the
consolidated balance sheet of the Company dated as of December 31, 1996 that is
likely to materially and adversely affect the Company's ability to comply with
Section 8.01 or to perform its other obligations to the Lenders under this
Agreement and (d) when used in any representation and warranty or covenant of
any Unguaranteed Borrower on any date after the Effective Date, any change in
the consolidated financial condition or operations of such Unguaranteed Borrower
and its Consolidated Subsidiaries from that set forth in the consolidated
balance sheet of such Unguaranteed Borrower dated December 31, 1996, in the case
of AHL, dated December 31, 1996, in the case of AHN and dated the date of the
first fiscal year balance sheet provided by any other Unguaranteed Borrower to
the Lenders hereunder, in the case of any other Unguaranteed Borrower, that, in
each case, is likely to materially and adversely affect such Unguaranteed
Borrower's ability to comply with Section 9.01 or to perform its other
obligations to the Lenders under this Agreement.
"Material Indebtedness" means Debt (other than the Loans and
Acceptances) of any one or more of the Borrowers in an aggregate principal
amount exceeding $10,000,000.
"Maturity Date" means May 20, 2002, as such date may be extended
pursuant to Section 2.08(d).
"Maximum Outstandings" means, (a) with respect to the Company or any
Guaranteed Borrower at any time, the Allocated Commitment Amount of the Company
or such Guaranteed Borrower, as the case may be, at such time and (b) with
respect to any Unguaranteed Borrower at any time, the lesser of (i) the
Allocated Commitment Amount of such Unguaranteed Borrower at such time and (ii)
the sum of (A) the Designated Maximum for such Borrower at such time plus (B)
the Supplemental Guaranteed Amount, if any, for such Unguaranteed Borrower at
such time.
"MLA Cost" means, with respect to any Lender, the cost imputed to
such Lender of compliance with the Mandatory Liquid Assets requirements of the
Bank of England during the relevant Interest Period, determined in accordance
with Schedule D.
"New Lender Supplement" means a New Lender Supplement, substantially
in the form of Exhibit F, executed and delivered pursuant to Section 2.08 or
Section 2.20.
"New York Subsidiary Borrower" has the meaning set forth in Section
2.03.
<PAGE> 20
15
"Note" has the meaning set forth in Section 2.09(e).
"Offered Increase Amount" has the meaning set forth in
Section 2.20.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Permitted Encumbrances" means with respect to any Borrower:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in good faith by appropriate proceedings and as to which
appropriate reserves have been set aside in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, and
repairmen's Liens, Liens for crew's wages or salvage (or making deposits
to release such Liens) and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 30 days or are being contested in good faith by appropriate
proceedings and as to which appropriate reserves have been set aside in
accordance with GAAP;
(c) Liens on standard industry terms imposed by charter parties or
under contracts of affreightment;
(d) Liens arising out of judgments or awards against such Borrower
or any of its Consolidated Subsidiaries with respect to which such
Borrower or such Subsidiary at the time shall currently be prosecuting an
appeal or proceedings for review and with respect to which it shall have
secured a stay of execution pending such appeal or proceedings for review;
(e) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds or performance
bonds, margin posted to secure payment or performance under futures,
forwards or Swap Agreements, and other obligations of a like nature, in
each case in the ordinary course of business;
(g) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property and imperfections of titles imposed by law
or arising in the ordinary course of business that do not secure any
monetary
<PAGE> 21
16
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of any
Borrower or any of its Consolidated Subsidiaries;
(h) Liens on any oil and/or gas properties or other mineral
interests of such Borrower or any of its Consolidated Subsidiaries,
whether developed or undeveloped, arising (i) as security for such
Borrower or such Subsidiary's costs and expenses incurred by it in
connection with the exploration, development or operation of such
properties, in favor of a person who is conducting the exploration,
development or operation of such properties, or (ii) in connection with
farmout, dry hole, bottom hole, communitization, unitization, pooling and
operating agreements and/or other agreements of like general nature
incident to the acquisition, exploration, development and operation of
such properties or as required by regulatory agencies having jurisdiction
in the premises; and
(i) overriding royalties, royalties, production payments, net
profits interests or like interests to be paid out of production from oil
and/or gas properties or other mineral interests of such Borrower or any
of its Consolidated Subsidiaries, or to be paid out of the proceeds from
the sale of any such production;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Pounds Sterling" means pounds sterling in lawful currency
of the United Kingdom.
"Preferred AHL Intercompany Debt" means subordinated intercompany
Debt of AHL which is subordinated on terms and conditions acceptable to the
Required Lenders, as evidenced by the written approval thereof by the
Administrative Agent.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Reference Lenders" means The Chase Manhattan Bank, Citibank, N.A.,
Morgan Guaranty Trust Company of New York, Bank of America National Trust and
Savings Association and Barclays Bank PLC or such other banks as may from time
to time be requested by the Company and approved by the Administrative Agent.
<PAGE> 22
17
"Register" has the meaning set forth in Section 13.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, (a) at any time prior to the termination
of the Commitments pursuant to Article X, Lenders having Commitments
representing at least 51% of the aggregate Commitments at such time (provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article X, the outstanding Competitive Loans and the outstanding Acceptances of
the Lenders shall be included in their respective Commitments in determining the
Required Lenders) and (b) for all purposes after the termination of the
Commitments pursuant to Article X, Lenders having outstanding Loans and
Acceptances representing at least 51% of the aggregate outstanding principal
amount of Loans and undiscounted face amount of Acceptances.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the outstanding principal amount of such Lender's Revolving Loans
denominated in dollars plus the Dollar Equivalent of such Lender's Revolving
Loans denominated in any Designated Foreign Currency.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Spot Rate of Exchange" means, with respect to any Designated
Foreign Currency or Foreign Currency, at any date of determination thereof, the
spot rate of exchange in London that appears on the display page applicable to
such Designated Foreign Currency or Foreign Currency on the Telerate System
Incorporated Service (or such other page as may replace such page on such
service for the purpose of displaying the spot rate of exchange in London);
provided that if there shall at any time no longer exist such a page on such
service, the spot rate of exchange shall be determined by reference to another
similar rate publishing service selected by the Administrative Agent and if no
such similar rate publishing service is available by reference to the published
rate of the Administrative Agent in effect at such date for similar commercial
transactions.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D
<PAGE> 23
18
of the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or, in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise Controlled, by the parent or one or more Subsidiaries of the
parent or by the parent and one or more Subsidiaries of the parent.
"Subsidiary Borrowers" means, collectively, the Guaranteed Borrowers
and the Unguaranteed Borrowers.
"Supplemental Guaranteed Amount" means, with respect to any
Unguaranteed Borrower, the amount, if any, of principal of Loans made to, and
face amount of Acceptances created for the account of, such Unguaranteed
Borrower (together, in each case, with interest thereon and all other amounts
payable by such Unguaranteed Borrower hereunder with respect thereto) which the
Company, by a written agreement delivered to the Administrative Agent (in form
and substance satisfactory to the Administrative Agent) has agreed will be
guaranteed by the Company to the same extent as the Guaranteed Borrower
Obligations.
"Swap Agreement" means any interest rate, currency or commodity swap
agreement or other interest rate, currency or commodity price protection
agreement capable of financial settlement only.
"Swap Payment Obligation" means, with respect to any Person, an
obligation of such Person to pay money, either in respect of a periodic payment
or upon termination, to a counterparty under a Swap Agreement, after giving
effect to any netting arrangements between such Person and such counterparty and
such Person's rights of set-off in respect of such obligation provided for in
such Swap Agreement.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Telerate Page" means the display designated as Page 3750 (or such
other page on which any Foreign Currency or Designated Foreign Currency then
appears) on the Telerate System Incorporated Service (or such other page as may
replace such page on such service for the purpose of displaying the rates at
which dollar deposits or deposits
<PAGE> 24
19
in any Foreign Currency or Designated Foreign Currency are offered by leading
banks in the London interbank deposit market).
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Capitalization", of any Person on any date, means the sum of
(i) Total Consolidated Debt of such Person on such date and (ii) shareholders'
equity of such Person on such date, determined on a consolidated basis in
accordance with GAAP; provided, that Total Capitalization of AHL on any date
shall include Preferred AHL Intercompany Debt outstanding on such date.
"Total Consolidated Debt", of any Person on any date, means all Debt
of such Person and its Consolidated Subsidiaries on such date, determined on a
consolidated basis in accordance with GAAP; provided, that with respect to AHL,
Total Consolidated Debt shall exclude Preferred AHL Intercompany Debt
outstanding on such date.
"Total Exposure" means, with respect to any Lender at any time, the
sum of (i) the Revolving Credit Exposure of such Lender, (ii) the aggregate
outstanding principal amount of such Lender's Competitive Loans denominated in
dollars plus the Dollar Equivalent of the aggregate outstanding principal amount
of such Lender's Competitive Loans denominated in any Foreign Currency and (iii)
the aggregate discounted face amount of all outstanding Acceptances created by
such Lender.
"Total Outstandings" means, with respect to any Borrower at any
time, the sum of (i) the aggregate outstanding principal amount of all Revolving
Credit Loans denominated in dollars made to such Borrower plus the Dollar
Equivalent of the aggregate outstanding principal amount of all Revolving Credit
Loans denominated in any Designated Foreign Currency made to such Borrower, (ii)
the aggregate outstanding principal amount of Competitive Loans denominated in
dollars made to such Borrower plus the Dollar Equivalent of the aggregate
outstanding principal amount of Competitive Loans denominated in any Foreign
Currency made to such Borrower and (iii) the aggregate discounted face amount of
all outstanding Acceptances created for the account of such Borrower.
<PAGE> 25
20
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement, the borrowing of Loans and the creation of the
Acceptances hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"Unguaranteed Borrower" has the meaning ascribed to it in the
Preamble; each Unguaranteed Borrower is listed on Schedule C, as such Schedule
may be amended from time to time in accordance with Section 13.02.
"Unguaranteed Borrower Capitalization Ratio" means, with respect to
any Unguaranteed Borrower on any date, the ratio, expressed as a percentage, of
Total Consolidated Debt of such Unguaranteed Borrower and its Consolidated
Subsidiaries on such date to Total Capitalization of such Unguaranteed Borrower
and its Consolidated Subsidiaries on such date.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's permitted
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and
<PAGE> 26
21
to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such amendment is rejected or such provision is amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to each of the
Borrowers from time to time during the Availability Period in an aggregate
principal amount as to all the Borrowers not exceeding the amount of such
Lender's Commitment; provided, that after giving effect to each Revolving Credit
Loan (i) no Lender's Revolving Credit Exposure shall exceed such Lender's
Commitment, (ii) the sum of the Total Exposures of all the Lenders to all of the
Borrowers shall not exceed the sum of the Commitments of all Lenders and (iii)
the Total Outstandings of any Borrower shall not exceed the Maximum Outstandings
of such Borrower. Within the foregoing limits and subject to the terms and
conditions set forth herein, each Borrower may borrow, prepay and reborrow
Revolving Loans.
(b) Prior to submission of the initial Borrowing Request hereunder,
the Company will allocate the Commitments among the Borrowers by giving written
notice to the Administrative Agent of the Allocated Commitment Amount for each
Borrower (which notice the Administrative Agent will promptly transmit to each
Lender), and the Company may change such allocation at any time by giving
written notice to the Administrative Agent of the revised Allocated Commitment
Amounts at least five Business Days prior to the effective date of such change
(which notice the Administrative Agent will promptly transmit to each Lender).
SECTION 2.02. Loans, Acceptances and Borrowings. (a) Except as provided in
paragraph (e) of this Section, each Revolving Loan shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their
<PAGE> 27
22
respective Commitments. Each Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.04. Each Acceptance shall be created in
accordance with the procedures set forth in Section 2.05. The failure of any
Lender to make any Loan or create any Acceptance required to be made or created
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments, Competitive Bids and Acceptance Bids of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans or create Acceptances as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower
may request in accordance herewith and, subject to Section 2.17(f), shall be in
dollars or any Designated Foreign Currency, and (ii) each Competitive Borrowing
shall be comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the
relevant Borrower may request in accordance herewith and, subject to Section
2.17(f), shall be in dollars or (in the case of any Eurocurrency Loan only) any
Foreign Currency. Each Lender at its option may make any Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
relevant Borrower to repay such Loan or, in the case of a borrowing by a
Guaranteed Borrower, the Company to guarantee such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000 (or, if such
Borrowing is to be made in any Designated Foreign Currency, an amount in such
Designated Foreign Currency of which the Dollar Equivalent is approximately such
amount). At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $10,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments. Each Competitive Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $10,000,000 (or, if such
Borrowing is to be made in any Foreign Currency, an amount in such Foreign
Currency of which the Dollar Equivalent is approximately such amount).
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 20
Eurocurrency Revolving Borrowings outstanding to the Company, a total of 15
Eurocurrency Revolving Borrowings outstanding to AHL and a total of 10
Eurocurrency Revolving Borrowings outstanding to each other Borrower.
(d) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
<PAGE> 28
23
(e) If any bank, financial institution or other entity becomes a new
Lender pursuant to Section 2.08(f) or Section 2.20(b) or any Lender's Commitment
is increased pursuant to Section 2.08(g) or Section 2.20(c), additional
Revolving Loans made on or after the effective date of the New Lender Supplement
or the Commitment Increase Supplement, as the case may be (the "Re-Allocation
Date") shall be made by the Lenders ratably in accordance with their respective
Commitments in effect on and after such Re-Allocation Date (except to the extent
that any such ratable borrowings would result in any Lender making an aggregate
principal amount of Revolving Loans in excess of its Commitment, in which case
such excess amount will be allocated to, and made by, such new Lenders and/or
Lenders with such increased Commitments to the extent of, and ratably in
accordance with, their respective Commitments otherwise available for Revolving
Loans), and continuations of Eurocurrency Revolving Loans outstanding on such
Re-Allocation Date shall be effected by repayment of such Eurocurrency Revolving
Loans on the last day of the Interest Period applicable thereto and the making
of new Eurocurrency Revolving Loans by the Lenders ratably in accordance with
their respective Commitments. In the event that on any such Re-Allocation Date
there is an unpaid principal amount of ABR Loans, the Company shall make
prepayments thereof and borrowings of ABR Loans so that, after giving effect
thereto, the ABR Loans outstanding are held by the Lenders ratably in accordance
with their Commitments. In the event that on any such Re-Allocation Date there
is an unpaid principal amount of Eurocurrency Revolving Loans, such Eurocurrency
Revolving Loans shall remain outstanding with the respective holders thereof
until the expiration of their respective Interest Periods (unless the Company
elects to prepay any thereof in accordance with the applicable provisions of
this Agreement), and interest on and repayments of such Eurocurrency Revolving
Loans will be paid thereon to the respective Lenders holding such Eurocurrency
Revolving Loans pro rata based on the respective principal amounts thereof
outstanding.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the relevant Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurocurrency Borrowing made by the
Company or any Subsidiary Borrower which elects (with the approval of the
Administrative Agent) in the Joinder Agreement with respect to it to make
Eurocurrency Borrowings through the New York office of the Administrative Agent
(a "New York Subsidiary Borrower"), not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing, (b) in the
case of a Eurocurrency Borrowing made by AHL, AHN, Hess-Denmark or any
Subsidiary Borrower which elects (with the approval of the Administrative Agent)
in the Joinder Agreement with respect to it to make Eurocurrency Borrowings
through the London office of the Administrative Agent (AHL, AHN, Hess-Denmark or
any such other Subsidiary Borrower so electing, a "London Subsidiary Borrower"),
not later than 11:00 a.m., London time, three Business Days before the date of
the proposed Borrowing or (c) in the case of any ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
at its office set forth
<PAGE> 29
24
in Section 13.01 of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the relevant Borrower and, in the case of a
borrowing by a Guaranteed Borrower, the Company. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the identity of the Borrower and the aggregate amount of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period" and, if such Eurocurrency
Borrowing is to be made entirely or partly in any Designated Foreign
Currency, the Designated Foreign Currency thereof; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the relevant Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. Bid Procedure for Competitive Loans. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided,
that after giving effect to each Competitive Loan (i) the sum of the Total
Exposures of all the Lenders to all of the Borrowers shall not exceed the sum of
the Commitments of all Lenders and (ii) the Total Outstandings of any Borrower
shall not exceed the Maximum Outstandings of such Borrower. To request
Competitive Bids, a Borrower shall notify the Administrative Agent at its office
set forth in Section 13.01 of such request by telephone, (i) in the case of a
Eurocurrency Competitive Borrowing made by the Company or any New York
Subsidiary Borrower, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing, (ii) in the case of a
Eurocurrency Competitive Borrowing made by any London Subsidiary Borrower, not
later than 11:00 a.m., London
<PAGE> 30
25
time, four Business Days before the date of the proposed Borrowing, (iii) in the
case of a Fixed Rate Borrowing made by the Company or any New York Subsidiary
Borrower, not later than 10:00 a.m., New York City time, one Business Day before
the date of the proposed Borrowing and (iv) in the case of a Fixed Rate
Borrowing made by any London Subsidiary Borrower, not later than 10:00 a.m.,
London time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by such
Borrower and, in the case of Competitive Loans to a Guaranteed Borrower, the
Company. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the identity of the Borrower and the aggregate amount of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or
a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period";
(v) if such Borrowing is to be made entirely or partly in any
Foreign Currency, the Foreign Currency thereof;
(vi) the maturity date of such Borrowing, which shall be no less
than seven and no more than 365 days from the requested drawdown date of
such Borrowing; and
(vii) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Competitive Loan Lenders of
the details thereof by telecopy, inviting the Competitive Loan Lenders to submit
Competitive Bids.
(b) Each Competitive Loan Lender may (but shall not have any
obligation to) make one or more Competitive Bids to such Borrower in response to
a Competitive Bid Request. Each Competitive Bid by a Competitive Loan Lender
must be in a form approved by the Administrative Agent and must be received by
the Administrative Agent at its office set forth in Section 13.01 by telecopy,
(i) in the case of a Eurocurrency Competitive Borrowing made by the Company or
any New York Subsidiary Borrower, not later than 9:30 a.m., New York City time,
three Business Days before the date of the
<PAGE> 31
26
proposed Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing
made by any London Subsidiary Borrower, not later than 9:30 a.m., London time,
three Business Days before the date of the proposed Borrowing, (iii) in the case
of a Fixed Rate Borrowing made by the Company or any New York Subsidiary
Borrower, not later than 9:30 a.m., New York City time, on the proposed date of
such Competitive Borrowing and (iv) in the case of a Fixed Rate Borrowing made
by any London Subsidiary Borrower, not later than 9:30 a.m., London time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Administrative Agent may be
rejected by the Administrative Agent, and the Administrative Agent shall notify
the applicable Competitive Loan Lender of such rejection as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 (or, in
the case of Competitive Loans to be denominated in a Foreign Currency, an amount
in such Foreign Currency of which the Dollar Equivalent is at least equal to
$5,000,000) and which may equal the entire principal amount of the Competitive
Borrowing requested by such Borrower) of the Competitive Loan or Loans that the
Competitive Loan Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Competitive Loan Lender is prepared to make such Loan or
Loans (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) and (iii) the Interest Period applicable to each
such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the relevant
Borrower and, in the case of a proposed Competitive Borrowing by a Guaranteed
Borrower, the Company by telecopy of the Competitive Bid Rate and the principal
amount specified in each Competitive Bid and the identity of the Lender that
shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the relevant
Borrower may accept or reject any Competitive Bid. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it has decided
to accept or reject each Competitive Bid, (i) in the case of a Eurocurrency
Competitive Borrowing made by the Company or any New York Subsidiary Borrower,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Borrowing, (ii) in the case of a Eurocurrency Competitive
Borrowing made by any London Subsidiary Borrower, not later than 10:30 a.m.,
London time, three Business Days before the date of the proposed Borrowing,
(iii) in the case of a Fixed Rate Borrowing made by the Company or any New York
Subsidiary Borrower, not later than 10:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing and (iv) in the case of a Fixed Rate
Borrowing made by any London Subsidiary Borrower, not later than 10:30 a.m.,
London time, on the proposed date of such Competitive Borrowing; provided that
(i) the failure of the relevant Borrower to give such notice shall be deemed to
be a rejection of each Competitive Bid, (ii) the relevant Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if such
Borrower rejects a Competitive Bid made at a
<PAGE> 32
27
lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) of this proviso, such Borrower
may accept Competitive Bids at the same Competitive Bid Rate in part, which
acceptance, in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000
(or, in the case of Competitive Loans to be denominated in a Foreign Currency,
an amount in such Foreign Currency of which the Dollar Equivalent is at least
$5,000,000); provided further that if a Competitive Loan must be in an amount
less than $5,000,000 (or, in the case of Competitive Loans to be denominated in
a Foreign Currency, an amount in such Foreign Currency of which the Dollar
Equivalent is at least $5,000,000) because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of $1,000,000 (or, in the case
of Competitive Loans to be denominated in a Foreign Currency, an amount in such
Foreign Currency of which the Dollar Equivalent is at least $1,000,000) or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 (or, in the case of Competitive Loans to be denominated
in a Foreign Currency, an amount in such Foreign Currency of which the Dollar
Equivalent is at least $1,000,000) in a manner determined by such Borrower. A
notice given by a Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the relevant Borrower at least one quarter of an hour earlier than the time
by which the other Competitive Loan Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Bid Procedure for Bankers' Acceptances. (a) Subject to the
terms and conditions set forth herein, from time to time during the period from
and including the Effective Date to the date which is 30 days prior to the
Maturity Date the Company or any New York Subsidiary Borrower may request
Acceptance Bids denominated in dollars and may (but shall not have any
obligation to) accept Acceptance Bids; provided, that, after giving effect to
the creation of the requested Acceptances (i) the sum of the Total Exposures of
all the Lenders to all of the Borrowers shall not exceed sum of the
<PAGE> 33
28
Commitments of all Lenders and (ii) the Total Outstandings of any Borrower shall
not exceed the Maximum Outstandings of such Borrower. To request Acceptance
Bids, the Company or any New York Subsidiary Borrower shall notify the
Administrative Agent at its office set forth in Section 13.01 of such request by
telephone not later than 10:00 a.m., New York City time one Business Day before
the date of the proposed creation thereof. Each such telephonic Acceptance Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Acceptance Bid Request in a form approved by
the Administrative Agent and signed by the Company or such New York Subsidiary
Borrower, as the case may be, and, in the case of an Acceptance Bid Request by a
Guaranteed Borrower, the Company. Each such telephonic and written Acceptance
Bid Request shall specify the following information:
(i) the identity of the Borrower;
(ii) the aggregate face amount of the requested Acceptance;
(iii) the date of such Acceptance, which shall be a Business Day;
(iv) the tenor of such Acceptance;
(v) the information set forth in Schedule 2.05 in respect of the
transactions being financed by the requested Acceptance; and
(vi) whether such Acceptance will be eligible for discount under
Federal Reserve Board regulations.
Promptly following receipt of an Acceptance Bid Request in accordance with this
Section, the Administrative Agent shall notify the Acceptance Lenders of the
details thereof by telecopy, inviting the Acceptance Lenders to submit
Acceptance Bids.
(b) Each Acceptance Lender may (but shall not have any obligation
to) make one or more Acceptance Bids to such Borrower in response to an
Acceptance Bid Request. Each Acceptance Bid by an Acceptance Lender must be in a
form approved by the Administrative Agent and must be received by the
Administrative Agent at its office set forth in Section 13.01 by telecopy not
later than 9:30 a.m., New York City time on the proposed Acceptance Date.
Acceptance Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Acceptance Lender of such
rejection as promptly as practicable. Each Acceptance Bid shall specify (i) the
face amount or amounts (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000) and which may equal the entire face amount of the
Acceptance requested by such Borrower) of the Acceptance or Acceptances that the
Acceptance Lender is willing to create, (ii) the tenor for each such Acceptance
and (iii) the discount rate for each such Acceptance.
<PAGE> 34
29
(c) The Administrative Agent shall promptly notify the relevant
Borrower by telecopy of the contents of each Acceptance Bid and the identity of
the Acceptance Lender that shall have made such Acceptance Bid.
(d) Subject only to the provisions of this paragraph, the relevant
Borrower may accept or reject any Acceptance Bid. The relevant Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it has decided
to accept or reject each Acceptance Bid not later than 10:30 a.m., New York City
time on the proposed Acceptance Date; provided that (i) the failure of the
relevant Borrower to give such notice shall be deemed to be a rejection of each
Acceptance Bid, (ii) if the relevant Borrower accepts any of such offers for any
tenor, it must accept offers for such tenor strictly based upon pricing for such
tenor and no other criteria whatsoever, (iii) the aggregate amount of the
Acceptance Bids accepted by the relevant Borrower shall not exceed the aggregate
face amount of the requested Acceptances specified in the related Acceptance Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, if two
or more Acceptance Lenders submit offers at identical pricing for any tenor and
the relevant Borrower accepts any of such offers but does not wish the creation
of Acceptances for such tenor in the total amount offered by such Acceptance
Lenders, the relevant Borrower shall accept Acceptance Bids from all of such
Acceptance Lenders in amounts allocated among them pro rata according to the
amounts offered by such Acceptance Lenders, and (v) except pursuant to clause
(iv) above, no Acceptance Bid shall be accepted for an Acceptance unless such
Acceptance is in a minimum face amount of $5,000,000 and an integral multiple of
$1,000,000; provided further that if an Acceptance must be in a face amount less
than $5,000,000 because of the provisions of clause (iv) above, such Acceptance
may be for a minimum face amount of $1,000,000 or any integral multiple thereof,
and in calculating the pro rata allocation of acceptances of portions of
multiple Acceptance Bids at the same pricing with respect to Acceptances of the
same tenor pursuant to clause (iv) the face amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by the relevant Borrower. A
notice given by a Borrower pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Acceptance Bid has been accepted (and, if
so, the face amount, discount rate and tenor of the Acceptances so accepted),
and each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to create and discount the Acceptance or Acceptances in
respect of which its Acceptance Bid has been accepted. Each Acceptance Lender
which is to create and discount Acceptances shall, before 3:00 p.m., New York
City time on the Acceptance Date specified in the Acceptance Bid Request
applicable thereto, create the Acceptances to be created by it on such
Acceptance Date as provided in Section 2.05(f), discount such Acceptances and
make available to the Administrative Agent for the account of the relevant
Borrower at the office of the Administrative Agent set forth in Section 13.01
the proceeds of such
<PAGE> 35
30
Acceptance and discount (net of the applicable acceptance commission), in
immediately available funds. As promptly as possible after each Acceptance Date,
the Administrative Agent shall notify each Lender of the aggregate amount of
Acceptances created on such date and of the respective tenors thereof.
(f) Each Acceptance shall be created by the acceptance by an
Acceptance Lender of a Draft payable in dollars, drawn by the relevant Borrower
thereof on such Acceptance Lender in accordance with this Agreement, to the
order of such Acceptance Lender. Each Acceptance shall mature on a Business Day
not less than 30 days nor more than six months after the date of creation
thereof (and in any event not after the Maturity Date).
(g) To enable the Acceptance Lenders to create Acceptances in the
manner specified in this Section 2.05, each Borrower that will request creation
of Acceptances hereunder shall deliver to the Administrative Agent on or prior
to the Effective Date, Powers of Attorney, substantially in the form attached as
Exhibit G (the "Powers of Attorney") authorizing each Acceptance Lender to draw
Drafts on such Acceptance Lender on behalf of such Borrower and to complete such
Drafts in accordance with each Acceptance Bid submitted by such Acceptance
Lender and accepted by such Borrower pursuant to Section 2.05.
(h) Within the limits and on the conditions set forth in this
Section 2.05, the Company or any New York Subsidiary Borrower may from time to
time request Acceptances under this Section 2.05, repay pursuant to paragraph
(i) below, and request creation of new Acceptances under this Section 2.05.
(i) The relevant Borrower hereby unconditionally promises to repay
to the Administrative Agent for the account of each Acceptance Lender which has
created an Acceptance for the account of such Borrower on the maturity date of
each Acceptance (such maturity date being that specified by the relevant
Borrower for repayment of such Acceptance in the related Acceptance Bid Request)
the face amount of such Acceptance. None of the Borrowers shall have the right
to prepay any Acceptance.
(j) Upon payment in full of any Acceptance Obligation by a Borrower,
the Acceptance Lender receiving such payment shall duly cancel the Draft with
respect to the corresponding Acceptance and forward such cancelled Draft to such
Borrower.
(k) If the Administrative Agent shall elect to submit an Acceptance
Bid in its capacity as an Acceptance Lender, it shall submit such Acceptance Bid
directly to the relevant Borrower at least one quarter of an hour earlier than
the time by which the other Acceptance Lenders are required to submit their
Acceptance Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
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31
(l) The Company and each New York Subsidiary Borrower represents and
warrants to each Acceptance Lender creating an Acceptance by accepting a Draft
for such Borrower's account which is represented by such Borrower to be eligible
for discount under Federal Reserve Board regulations that (i) each such Draft
will grow out of one or more transactions involving the importation or
exportation of goods between two countries or the domestic shipment of goods
within the United States pursuant to a contract in existence at the time of
creation of such Acceptance; (ii) each such Draft will finance a current
shipment of goods; (iii) each such Draft of such Borrower as exporter/seller
will have a tenor reasonably commensurate with usual credit terms or six months,
whichever is shorter; (iv) each such Draft of such Borrower as
importer/purchaser will have a tenor reasonably commensurate with the
anticipated time of receipt of the goods plus the anticipated time for preparing
the goods for distribution into the channels of trade or 30 days, whichever is
shorter; (v) the aggregate face amount of such Drafts will not exceed the c.i.f.
value of the shipment(s) financed thereby; (vi) on the Acceptance Date with
respect thereto, no other financing is or will be outstanding in respect of such
transaction during the period from the date of such Draft until the maturity
thereof; (vii) all necessary licenses for the exportation, importation and
payment of the purchase price and related costs of shipment will have been
obtained; (viii) a description of the goods being shipped, the actual or
anticipated date of shipment, value of the shipment and the addresses to which
and from which shipment will be made, will be furnished for each such
transaction pursuant to Section 2.05(a)(v); (ix) additional information about
each such transaction, including documents or copies of documents, will be
furnished promptly upon such Acceptance Lender's request and (x) on the
Acceptance Date with respect thereto, such goods will be in the channels of
trade and no other financing will be in existence for such transaction.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder and the proceeds of each Acceptance created and
discounted by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; such
transfers shall be made (i) in the case of Loans made to, and Acceptances
created for the account of, the Company or any New York Subsidiary Borrower, by
12:00 Noon, New York City time on the date such Loan is made or such Acceptance
is created and (ii) in the case of Loans made to any London Subsidiary Borrower,
by 12:00 Noon London time, on the date such Loan is made. The Administrative
Agent will make such amounts available to the relevant Borrower by promptly
crediting the amounts so received, in like funds, to an account of such Borrower
designated by such Borrower in the applicable Borrowing Request, Competitive Bid
Request or Acceptance Request.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing or creation of Acceptances
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing or Acceptance purchase price, the
Administrative Agent may assume that such
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32
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing or Acceptance purchase price
available to the Administrative Agent, then the applicable Lender and the
relevant Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the Federal Funds Effective Rate or in the case of any Borrowing
denominated in any Foreign Currency, the rate customary in such Foreign Currency
for settlement of similar inter-bank obligations, as quoted by the
Administrative Agent or (ii) in the case of such Borrower, the interest rate
applicable to ABR Loans (in the case of obligations denominated in dollars) or
the Administrative Agent's cost of funds (in the case of any other obligations).
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the relevant Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The relevant
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the relevant
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the relevant Borrower and, in the case of an Interest Election Request related
to a Borrowing by a Guaranteed Borrower, the Company.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
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(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower thereof shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing
and (ii) unless repaid, each Eurocurrency Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments; Extension of
Maturity Date. (a) Unless previously terminated, the Commitments shall terminate
on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the aggregate amount of the Commitments or the Designated Maximum with
respect to any Unguaranteed Borrower; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $10,000,000
and not less than $50,000,000 and (ii) the Company shall not terminate or reduce
the Commitments or any Designated
<PAGE> 39
34
Maximum if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Total Exposures of all the Lenders
to all the Borrowers would exceed the total Commitments or the Total
Outstandings of any Unguaranteed Borrower would exceed the Designated Maximum
with respect to such Unguaranteed Borrower.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments or any Designated Maximum under
paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Commitments delivered by the
Company may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the Company
(by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders based on their respective Commitments.
(d) The Company may on any day not later than the day which is
fifteen Business Days prior to the scheduled Maturity Date request by notice to
the Administrative Agent that the Maturity Date be extended for an additional
one-year period effective from the original Maturity Date. Subject to paragraph
(e) of this Section, the Maturity Date shall be so extended provided that (i) no
Default shall have occurred and be continuing at such time, (ii) the Company
shall have received the prior written consent of the Required Lenders for such
extension and (iii) after giving effect to any such extension, the Maturity Date
shall be no more than five years from the date such extension is effective. The
Maturity Date may be so extended up to two times.
(e) If any Lender (the "Non-Consenting Lender") does not consent to
the request by the Company that the Maturity Date be extended pursuant to
paragraph (d) above, then the outstanding principal of the Loans of the
Non-Consenting Lender, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder shall be payable to it on the original Maturity
Date and the Non-Consenting Lender shall cease to be a Lender under this
Agreement as of the original Maturity Date. The Company may, at its election,
(i) offer one or more of the Lenders the opportunity to assume all or a portion
of the Commitments of the Non-Consenting Lenders pursuant to paragraph (g) below
and/or (ii) with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld), offer one or more additional banks, financial
institutions or other entities the opportunity to assume all or a portion of the
Commitments of the Non-Consenting Lenders pursuant to paragraph (f) below, in
each case effective on the original Maturity Date.
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35
(f) Any additional bank, financial institution or other entity which
the Company selects to offer the right to assume a portion of the Commitments of
the Non-Consenting Lenders and which elects to become a party to this Agreement
and obtain a Commitment in an amount so offered and accepted by it pursuant to
Section 2.08(e)(ii) shall execute a New Lender Supplement with the Company and
the Administrative Agent, whereupon such bank, financial institution or other
entity shall become a Lender for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits of
this Agreement, and Schedule 2.01 shall be deemed to be amended to add the name
and Commitment of such new Lender.
(g) Any Lender which accepts an offer to it by the Company to
increase its Commitment pursuant to Section 2.08(e)(i) shall, in each case,
execute a Commitment Increase Supplement with the Company and the Administrative
Agent, whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased, and Schedule 2.01 shall be deemed to be amended to so increase the
Commitment of such Lender.
(h) No Lender shall have any obligation to increase its Commitment
pursuant to this Section 2.08 unless it agrees to do so in its sole discretion.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan made to
such Borrower on the Maturity Date and (ii) to the Administrative Agent for the
account of each Competitive Loan Lender the then unpaid principal amount of each
Competitive Loan made by such Competitive Loan Lender to such Borrower on the
last day of the Interest Period applicable to such Loan, in each case, in the
currency in which such Loan was made.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender to such Borrower, including
the amounts of principal and interest payable and paid to such Lender by such
Borrower from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the identity of the Borrower, (ii) the amount of each Loan made
hereunder, the Class, Type and relevant currency thereof and the Interest Period
applicable thereto, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower thereof to each Lender
hereunder and (iv) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
<PAGE> 41
36
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall, absent manifest error, be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the relevant Borrower to repay the Loans or the Company to guarantee any such
Loans to a Guaranteed Borrower in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the relevant Borrower shall prepare, execute and
deliver to such Lender a non-negotiable promissory note substantially in the
form attached as Exhibit H (a "Note") payable to the order of such Lender (or,
if requested by such Lender, to such Lender and its permitted registered
assigns). Thereafter, the Loans evidenced by such Note and interest thereon
shall at all times (including after assignment pursuant to Section 13.04) be
represented by one or more Notes payable to the order of the payee named therein
(or, if such Note is a registered Note, to such payee and its permitted
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Borrowing made by it in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that none of the Borrowers shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The relevant Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Borrowing by the Company or any New York
Subsidiary Borrower, not later than 11:00 a.m., New York City time, three
Business Days before the date of prepayment, (ii) in the case of prepayment of a
Eurocurrency Revolving Borrowing by any London Subsidiary Borrower, not later
than 11:00 a.m., London time, three Business Days before the date of prepayment
or (iii) in the case of prepayment of an ABR Revolving Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid and the
relevant currency thereof; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Revolving Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied
<PAGE> 42
37
ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Applicable Rate on the daily amount of the Commitment of such Lender (whether
used or unused) during the period from and including the date hereof to but
excluding the date on which such Commitment terminates; provided that, if such
Lender continues to have any Revolving Credit Exposure after its Commitment
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All facility fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Company agrees to pay to the Administrative Agent and each
of the Lenders, for their own accounts, fees payable in the amounts and at the
times separately agreed upon between the Company and such other parties.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each of the
Lenders, in the case of fees payable to it) for distribution, in the case of
facility fees, to the Lenders. Absent manifest error, fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurocurrency
Revolving Loan, the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate, or (ii) in the case of a Eurocurrency
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum
equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan, all or any portion of the face amount of any Acceptance or any fee
or other amount payable by any Borrower hereunder is not paid when due, whether
at stated maturity,
<PAGE> 43
38
upon acceleration or otherwise, such overdue amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to (i) the LIBO Rate for
Borrowings in Pounds Sterling and (ii) the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate, shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan) that because of a change in circumstances
affecting the eurocurrency market generally the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the relevant Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the relevant Borrower and the
Lenders that the
<PAGE> 44
39
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by such Borrower for a Eurocurrency Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by such Borrower for Eurocurrency
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.14 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender, including, without
limitation, any Acceptance Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender, including, without limitation, any
Acceptance Lender, or the London interbank market any other condition
affecting this Agreement or Eurocurrency Loans or Fixed Rate Loans made by
such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender of creating or maintaining any Acceptance or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the relevant Borrower with respect to such Loan or
Acceptance will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made or Acceptances created
by, such Lender, to a level below that which such Lender or such Lender's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time the relevant
Borrower of such Loans will pay to such Lender such additional amount or amounts
as will compensate such Lender or such Lender's holding company for any such
reduction suffered.
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40
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error. Such Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the relevant Borrower
shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than three months prior to the date
that such Lender notifies the relevant Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the three-month
period referred to above shall be extended to include the period of retroactive
effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurocurrency Loan or Fixed Rate Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.10(b) and is revoked in accordance herewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurocurrency Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by a Borrower pursuant to either Section 2.18 or Section
13.02(d), then, in any such event, the relevant Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event, including,
without limitation, any costs associated with the termination by any Lender of
any foreign currency exchange arrangements. In the case of a Eurocurrency Loan,
the loss to any Lender attributable to any such event shall be deemed to include
an amount determined by such Lender to be equal to the excess, if any, of (i)
the amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the
<PAGE> 46
41
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate for such Interest Period, over (ii) the amount
of interest that such Lender would earn on such principal amount for such period
if such Lender were to invest such principal amount for such period at the
interest rate that would be bid by such Lender (or an affiliate of such Lender)
for dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the relevant Borrower and shall be conclusive
absent manifest error. Such Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of any Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent and each
Lender (including, without limitation, any Acceptance Lender), within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the relevant Borrower by a
Lender, or by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Borrower to a Governmental Authority, such Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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42
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
relevant Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall, upon request of such
Borrower, deliver to such Borrower (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law or reasonably requested by such
Borrower, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or Acceptance Obligations, or
under Section 2.14, 2.15 or 2.16, or otherwise) (i) in the case of payments by
the Company or any New York Subsidiary Borrower, prior to 12:00 Noon, New York
City time, on the date when due, and (ii) in the case of payments by any London
Subsidiary Borrower, prior to 12:00 Noon, London time, on the date when due, in
each case, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at (i) in the case of
payments in dollars, 270 Park Avenue, New York, New York and (ii) in the case of
payments in any other currency, the Administrative Agent's payment office for
such currency specified from time to time by the Administrative Agent, except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 13.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars, or, in the case
of Eurocurrency Loans outstanding in any currency other than dollars, such other
currency.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, Acceptance
Obligations, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, to pay principal and Acceptance
Obligations then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and Acceptance Obligations then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its
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43
Revolving Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participations in any of its Loans to any assignee or
participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the relevant Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that such Borrower
will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if such Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate or in the case of any Loans made in any currency other than
dollars, the rate customary in such other currency for settlement of similar
inter-bank obligations, as quoted by the Administrative Agent.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.06(b) or 2.17(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
(f) Notwithstanding any other provision contained herein, in the
event that any Lender gives notice to the Administrative Agent that because of a
change in
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44
circumstances not attributable to the Borrowers specifically it is unable to
fund Revolving Loans in any Designated Foreign Currency at a reasonable cost to
it, the Administrative Agent shall, until such notice is withdrawn and to the
extent necessary in order to excuse such Lender from making any Revolving Loans
in such Designated Foreign Currency and to continue to make available to the
Borrowers the full aggregate amount of the Commitments, reallocate from time to
time among the Lenders the outstanding Revolving Loans denominated in dollars
and the Revolving Loans in such Designated Foreign Currency; provided that, in
the event that the Required Lenders give such notice to the Administrative
Agent, the Lenders shall not be required to make any Revolving Loans in such
Designated Foreign Currency until any such notices have been withdrawn so that
the Required Lenders have either not given any such notice or have withdrawn any
such notice.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Each Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if a
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 13.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Company shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans), accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the relevant Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such
<PAGE> 50
45
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
SECTION 2.19. Controls; Because of Currency Exchange Rate
Fluctuations. (a) The Company will implement and maintain internal controls to
monitor the borrowings and repayments of Loans by the Borrowers, with the object
of preventing any request for a Loan or Acceptance that would result in a breach
of any of the aggregate or individual limits or sub-limits set forth in Section
2.01 and of promptly identifying and remedying any circumstance where, by reason
of changes in exchange rates, any of such limits or sub-limits shall have been
breached. In the event that at any time the Company determines that by reason of
currency exchange rates any of such limits or sub-limits shall have been
breached, in each case, by more than 5%, the Company will promptly notify the
Administrative Agent.
(b) The Administrative Agent will calculate the Revolving Credit
Exposures and Total Exposures with respect to all of the Lenders from time to
time, and in any event not less frequently than once during each calendar week.
(c) In the event that on any date the Administrative Agent
calculates that any of such limits or sub-limits shall have been breached, in
each case, by more than 5%, the Administrative Agent will give notice to such
effect to the Company and the Lenders. Within five Business Days after receipt
of such notice, in the case of ABR Loans, and by the date which is the earlier
of (i) the end of the next succeeding Interest Period and (ii) three months from
the date of receipt of such notice, in the case of Eurocurrency Loans and Fixed
Rate Loans, the Company will, or will cause the Borrowers to, make such
repayments or prepayments of Loans (together with interest accrued to the date
of such repayment or prepayment) as shall be necessary to eliminate any excess
above any such limit or sub-limit, unless by the time such repayment or
prepayment is required to be made, such limit or sub-limit is no longer breached
by reason of currency exchange rate fluctuations. If by virtue of the second
sentence of this paragraph (c) any such repayment or prepayment of a
Eurocurrency Loan pursuant to this Section occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Company shall
pay to the Lenders such amounts, if any, as may be required pursuant to Section
2.15.
SECTION 2.20. Commitment Increases. (a) In the event that at any
time when no Default or Event of Default has occurred and is continuing the
Company wishes to increase the aggregate Commitments, it shall notify the
Administrative Agent in writing of the amount (the "Offered Increase Amount") of
such proposed increase. The Company may, at its election, (i) offer one or more
of the Lenders the opportunity to participate in all or a portion of the Offered
Increase Amount pursuant to paragraph (c) below and/or (ii) with the consent of
the Administrative Agent (which consent shall not be unreasonably withheld),
offer one or more additional banks, financial institutions or other
<PAGE> 51
46
entities the opportunity to assume all or a portion of the Offered Increase
Amount pursuant to paragraph (b) below.
(b) Any additional bank, financial institution or other entity which
the Company selects to offer the right to assume a portion of the Offered
Increase Amount and which elects to become a party to this Agreement and obtain
a Commitment in an amount so offered and accepted by it pursuant to Section
2.20(a)(ii) shall execute a New Lender Supplement with the Company and the
Administrative Agent, whereupon such bank, financial institution or other entity
shall become a Lender for all purposes and to the same extent as if originally a
party hereto and shall be bound by and entitled to the benefits of this
Agreement, and Schedule 2.01 shall be deemed to be amended to add the name and
Commitment of such new Lender.
(c) Any Lender which accepts an offer to it by the Company to
increase its Commitment pursuant to Section 2.20(a)(i) shall, in each case,
execute a Commitment Increase Supplement with the Company and the Administrative
Agent, whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased, and Schedule 2.01 shall be deemed to be amended to so increase the
Commitment of such Lender.
(d) Notwithstanding anything to the contrary in this Section 2.20,
(i) the aggregate Commitments may be increased only in integral multiples of
$100,000,000 and in an aggregate amount not exceeding $400,000,000 and (ii) no
Lender shall have any obligation to increase its Commitment pursuant to this
Section 2.20 unless it agrees to do so in its sole discretion.
ARTICLE III
Company Representations and Warranties
The Company represents and warrants to the Lenders (which
representations and warranties will be deemed made by the Company on the date of
each Borrowing by any Borrower hereunder, the date of creation of each
Acceptance hereunder, the date of conversion or continuation of any Interest
Period with respect to any Loan pursuant to Section 2.07, each Interest Payment
Date in respect of any ABR Loan and the effective date of each extension of the
Maturity Date pursuant to Section 2.08(d)) that:
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47
SECTION 3.01. Corporate Existence and Power; Compliance with Law.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The Company is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, does not constitute a Material Adverse Effect.
SECTION 3.02. Corporate Authority. The execution, delivery and
performance by the Company of this Agreement and each Note and each Draft
executed by the Company have been duly authorized by all necessary corporate
action and are within the Company's corporate power, do not require the approval
of the shareholders of the Company, and will not violate any provision of law or
of its certificate of incorporation or other constitutive document or by-laws,
or result in the breach of or constitute a default or require any consent under,
or result in the creation of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, any indenture or other agreement or
instrument to which the Company is a party or by which the Company or its
property may be bound or affected. The execution, delivery and performance by
the Company of this Agreement and each Note and each Draft executed by the
Company do not require any license, consent or approval of or advance notice to
or advance filing with any governmental agency or regulatory authority or any
other third party, or if required, any such license, consent or approval shall
have been obtained and any such notice or filing shall have been made.
SECTION 3.03. Enforceability. This Agreement is, and each Note and
each Draft when delivered by the Company hereunder will be, duly executed and
delivered by the Company and does or will constitute the legal, valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms except as enforceability may be limited by general
principles of equity and bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by moratorium laws from time to time
in effect.
SECTION 3.04. Financial Condition. The audited consolidated
financial statements of the Company for the fiscal year ended December 31, 1996,
reported on by Ernst & Young, LLP, heretofore furnished to the Lenders fairly
present in all material respects the consolidated financial condition of the
Company and its Consolidated Subsidiaries as at the date thereof and the results
of their operations for the period covered thereby. The unaudited interim
consolidated financial statements of the Company for the quarterly period ended
March 31, 1997, heretofore furnished to the Lenders fairly present in all
material respects the consolidated financial condition of the Company and its
Consolidated Subsidiaries as at the date thereof and the results of their
operations for the period covered thereby (subject to normal year-end audit
adjustments). Said financial statements were prepared in accordance with GAAP.
Since December 31, 1996, there has been no Material Adverse Effect.
<PAGE> 53
48
SECTION 3.05. Litigation. There are no suits or proceedings
(including proceedings by or before any arbitrator, government commission,
board, bureau or other administrative agency) pending or, to the knowledge of
the Company, threatened against or affecting the Company or any of its
Consolidated Subsidiaries that constitute a Material Adverse Effect.
SECTION 3.06. ERISA. The Company has fulfilled its obligations under
the minimum funding standards of ERISA and the Code with respect to each
employee benefit plan of the Company subject to such standards and is in
compliance in all material respects with the applicable provisions of ERISA, and
has not incurred any liability to the PBGC or any employee benefit plan of the
Company under Title IV of ERISA other than a liability to the PBGC for premiums
under Section 4007 of ERISA.
SECTION 3.07. Environmental Matters. Each of the Company and its
Consolidated Subsidiaries has obtained all permits, licenses and other
authorizations which are required under all Environmental Laws, including laws
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment (including, without limitation,
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, chemical, or industrial,
toxic or hazardous substances or wastes, except to the extent failure to have
any such permit, license or authorization does not constitute a Material Adverse
Effect. The Company and its Consolidated Subsidiaries are in compliance with all
terms and conditions of all required permits, licenses and authorizations, and
are also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables,
contained in those laws or contained in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply does
not constitute a Material Adverse Effect.
SECTION 3.08. Federal Regulations. No part of the proceeds of any
Loans or any Acceptance will be used for any purpose which violates the
provisions of the Regulations of the Board including, without limitation,
Regulations G, T, U and X of the Board as in effect from time to time.
SECTION 3.09. Investment and Holding Company Status. Neither the
Company nor any of its Consolidated Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
<PAGE> 54
49
ARTICLE IV
Subsidiary Borrower Representations and Warranties
Each Subsidiary Borrower (with respect to Sections 4.01, 4.02, 4.03,
4.07 and 4.08) and each Unguaranteed Borrower (with respect to Sections 4.01
through 4.08) hereby represents and warrants to the Lenders (which
representations and warranties will be deemed made by such Borrower on the date
of each Borrowing by it, the date of creation of each Acceptance for its
account, the date of conversion or continuation of any Interest Period with
respect to a Loan made to it pursuant to Section 2.07, each Interest Payment
Date with respect to any ABR Loan made to it and the effective date of each
extension of the Maturity Date pursuant to Section 2.08(d)) that:
SECTION 4.01. Corporate Existence and Power; Compliance with Law.
Such Subsidiary Borrower is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation. Such
Subsidiary Borrower is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, does not constitute a
Material Adverse Effect.
SECTION 4.02. Corporate Authority. The execution, delivery and
performance by such Subsidiary Borrower of this Agreement and each Note and each
Draft executed by such Subsidiary Borrower have been duly authorized by all
necessary corporate action and are within such Subsidiary Borrower's corporate
power, do not require the approval of the shareholders of such Subsidiary
Borrower, and will not violate any provision of law or of its certificate of
incorporation or other constitutive document or by-laws, or result in the breach
of or constitute a default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of such
Subsidiary Borrower pursuant to, any indenture or other agreement or instrument
to which such Subsidiary Borrower is a party or by which such Subsidiary
Borrower or its property may be bound or affected. The execution, delivery and
performance by such Subsidiary Borrower of this Agreement and each Note and each
Draft executed by it do not require any license, consent or approval of or
advance notice to or advance filing with any governmental agency or regulatory
authority or any other third party, or if required, any such license, consent or
approval shall have been obtained and any such notice or filing shall have been
made.
SECTION 4.03. Enforceability. This Agreement is, and each Note and
each Draft when delivered by such Subsidiary Borrower hereunder will be, duly
executed and delivered by such Subsidiary Borrower and does or will constitute
the legal, valid and binding obligations of such Subsidiary Borrower enforceable
against it in accordance with their respective terms except as enforceability
may be limited by general principles of equity
<PAGE> 55
50
and bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by moratorium laws from time to time in effect.
SECTION 4.04. Financial Condition. With respect to AHL, the audited
consolidated financial statements of AHL, with respect to AHN, the unaudited
consolidated financial statements of AHN, or, with respect to any other
Unguaranteed Borrower, the consolidated financial statements of such
Unguaranteed Borrower provided pursuant to Section 13.02(c), in each case for
the most recently completed fiscal year prior to the Effective Date (in the case
of AHL and AHN) and prior to the date it became a party to this Agreement (in
the case of any other Unguaranteed Borrower), in each case certified by a
Financial Officer of AHL, AHN or such Unguaranteed Borrower, as the case may be,
heretofore furnished to the Lenders (in the case of AHL and AHN) and furnished
at the time such other Unguaranteed Borrower becomes a party to this Agreement
(in the case of any other Unguaranteed Borrower) fairly present in all material
respects the consolidated financial condition of AHL, AHN or such other
Unguaranteed Borrower and their respective Consolidated Subsidiaries, as the
case may be, as at the dates thereof and the results of their operations for the
periods covered thereby. The unaudited interim consolidated financial statements
of such other Unguaranteed Borrower, for each fiscal quarterly period ended
subsequent to the date of the latest financial statements delivered pursuant to
the first sentence of this Section 4.04 and prior to the time it became a party
to this Agreement, furnished pursuant to Section 13.02(c) at the time such other
Unguaranteed Borrower becomes a party to this Agreement fairly present in all
material respects the consolidated financial condition of such other
Unguaranteed Borrower, as the case may be, as at the dates thereof and the
results of their operations for the periods covered thereby (subject to normal
year-end audit adjustments). Said financial statements were prepared in
accordance with GAAP. Since December 31, 1996 (in the case of AHL and AHN) and
since the date of the latest financial statements delivered with respect to such
other Unguaranteed Borrower pursuant to the first sentence of this Section 4.04,
there has been no Material Adverse Effect with respect to AHL or AHN or such
Unguaranteed Borrower.
SECTION 4.05. Litigation. There are no suits or proceedings
(including proceedings by or before any arbitrator, government commission,
board, bureau or other administrative agency) pending or, to the knowledge of
such Unguaranteed Borrower, threatened against or affecting it or any of its
Consolidated Subsidiaries that constitute a Material Adverse Effect.
SECTION 4.06. Environmental Matters. Each of such Unguaranteed
Borrower and its Consolidated Subsidiaries has obtained all permits, licenses
and other authorizations which are required under all Environmental Laws,
including laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or
<PAGE> 56
51
handling of pollutants, contaminants, chemical, or industrial, toxic or
hazardous substances or wastes, except to the extent failure to have any such
permit, license or authorization does not have a Material Adverse Effect. Each
of such Unguaranteed Borrower and its Consolidated Subsidiaries are in
compliance with all terms and conditions of all required permits, licenses and
authorizations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables, contained in those laws or contained in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the extent
failure to comply does not have a Material Adverse Effect.
SECTION 4.07. Federal Regulations. No part of the proceeds of any
Loans made to, or any Acceptance created on behalf of, such Subsidiary Borrower
will be used for any purpose which violates the provisions of the Regulations of
the Board including, without limitation, Regulations G, T, U and X of the Board
as in effect from time to time.
SECTION 4.08. Investment and Holding Company Status. Neither such
Subsidiary Borrower nor any of its Consolidated Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
ARTICLE V
Conditions
SECTION 5.01. Effective Date. The obligations of the Lenders to make
Loans to any of the Borrowers shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 13.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of (i) J. Barclay Collins, general counsel to the
Company, substantially in the form of Exhibit C-1 and (ii) counsel to each
of the Subsidiary Borrowers party to this Agreement on the Effective Date,
substantially in the form of Exhibit C-2, and in each case covering such
other matters relating to the Company and the Subsidiary Borrowers party
to this Agreement on the Effective
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52
Date, this Agreement or the Transactions as the Required Lenders shall
reasonably request. Each of such Borrowers hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent shall have received documents and
certificates relating to the organization, existence and good standing of
each of the Borrowers, the authorization of the Transactions, the
incumbency of the persons executing this Agreement on behalf of each
Borrower and any other legal matters relating to the Borrowers, this
Agreement or the Transactions as reasonably requested by the Lenders, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of each of the Borrowers party to this Agreement on
the Effective Date, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 5.02.
(e) The Administrative Agent and each Lender (and its Affiliates)
shall have received all fees and other amounts due and payable on or prior
to the Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by
any of the Borrowers hereunder.
(f) The Lenders shall have received copies of and shall be
reasonably satisfied, in form and substance, with the financial statements
referred to in Section 3.04 and 4.04, in each case certified by a
Financial Officer of the relevant Borrower.
(g) The Administrative Agent shall have received, with a copy for
each Lender, a certificate of an officer of the Company acceptable to the
Administrative Agent stating that all consents, authorizations, notices
and filings required or advisable in connection with this Agreement and
the Transactions are in full force and effect, except for such consents,
authorizations, notices and filings which if not in full force or effect
would not reasonably be expected to have a Material Adverse Effect, and
the Administrative Agent shall have received evidence thereof reasonably
satisfactory to it.
(h) The Administrative Agent shall have received evidence reasonably
satisfactory to it of the repayment in full of all amounts under and the
cancellation of the credit facilities set forth on Schedule A; provided
that (i) if the repayment of any of such credit facilities on or prior to
the Effective Date shall result in any loss, cost or expense of the type
described in Section 2.15 with respect to such credit facility, such
credit facility shall be permitted to remain outstanding only
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53
until such time as the payment in full of all amounts thereunder will not
result in any such losses, costs or expenses, and (ii) the Agreement,
dated November 4, 1994, between Amerada Hess Limited, Chase Investment
Bank Limited, Citibank International PLC and the other financial
institutions from time to time party thereto (as amended, supplemented or
otherwise modified from time to time, the "Existing AHL Agreement") shall
be permitted to remain outstanding only until December 31, 1997 provided
that the "Commitments" thereunder shall within ten "Business Days" (as
such terms are defined in the Existing AHL Agreement) of the Effective
Date be reduced to no greater than $165,000,000, in either of which event
Borrowings under this Agreement will be in such amounts as not to cause,
as to any Lender (other than The Chase Manhattan Bank), the Revolving
Credit Exposure of such Lender, plus the outstanding principal amount
owing to such Lender under any of the credit facilities set forth on
Schedule A (including, without limitation, the Existing AHL Agreement), to
exceed the amount of such Lender's Commitment; and provided further that
the Designated Maximum with respect to AHL shall be reduced by the
outstanding principal amount owing by AHL under any of the credit
facilities set forth on Schedule A (including, without limitation, the
Existing AHL Agreement).
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 13.02) at or prior to 3:00 p.m., New York City time, on May
31, 1997 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 5.02. Conditions to Credit Event of the Company. The
obligation of each Lender to make a Loan to the Company on the occasion of any
Borrowing or to create any Acceptance for the account of the Company on the
Acceptance Date with respect thereto is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Company set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing or on such Acceptance Date.
(b) At the time of and immediately after giving effect to such
Borrowing or the creation of such Acceptance, no Default shall have
occurred and be continuing.
Each Borrowing and each acceptance of a Draft which creates an Acceptance by the
Company shall be deemed to constitute a representation and warranty by the
Company on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
<PAGE> 59
54
SECTION 5.03. Conditions to Credit Event of any Subsidiary Borrower. The
obligation of each Lender to make a Loan to any Subsidiary Borrower on the
occasion of any Borrowing or to create any Acceptance for the account of such
Subsidiary Borrower on the Acceptance Date with respect thereto is subject to
the satisfaction of the following conditions:
(a) The representations and warranties of such Subsidiary Borrower
set forth in this Agreement shall be true and correct on and as of the
date of such Borrowing or on such Acceptance Date.
(b) At the time of and immediately after giving effect to such
Borrowing or the creation of such Acceptance, no Default shall have
occurred and be continuing.
Each Borrowing by such Subsidiary Borrower and each acceptance of a Draft for
the account of such Subsidiary Borrower shall be deemed to constitute a
representation and warranty by such Subsidiary Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE VI
Affirmative Covenants of the Company
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Acceptances shall no longer be outstanding and all
Acceptance Obligations with respect thereto shall have been reimbursed, the
Company covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The Company will
furnish to each Lender:
(a) as soon as available and in any event within 100 days after the
end of each of its fiscal years, a copy of the Company's Form 10-K for
such fiscal year filed with the Securities and Exchange Commission
containing a consolidated balance sheet as at the close of such fiscal
year, statements of consolidated income and retained earnings and a
statement of consolidated cash flows for such year, setting forth in
comparative form the corresponding figures for the preceding fiscal year
and certified by Ernst & Young, LLP, or other independent public
accountants selected by the Company and satisfactory to the Lenders (and,
in the event any such financial statements shall no longer be required to
be included in the Company's Form 10-K, the Company shall nevertheless
furnish such financial statements);
<PAGE> 60
55
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each of its fiscal years, a
copy of the Company's Form 10-Q for each such quarter filed with the
Securities and Exchange Commission containing a consolidated balance sheet
as at the end of such quarter, a statement of consolidated income and a
statement of consolidated cash flows for such period, prepared on a basis
consistent with the corresponding period of the preceding fiscal year,
except as disclosed in said financial statements or otherwise disclosed to
the Lenders in writing, and certified by a Financial Officer of the
Company, subject however, to year-end and audit adjustments (and, in the
event such financial statements of the Company shall no longer be required
to be included in Form 10-Q, the Company shall nevertheless furnish such
financial statements);
(c) within 120 days after the end of each fiscal year of the
Company, a certificate of the independent public accountants referred to
in paragraph (a) above as to whether, during the course of their
examination of the Company's financial statements, they obtained any
knowledge of any Default, insofar as such Default involves accounting
matters;
(d) within 120 days after the end of each fiscal year of the Company
and within 60 days after the end of each of the first three quarters of
each fiscal year of the Company, a statement, signed by a Financial
Officer of the Company, setting forth the computations of the Company
Capitalization Ratio as of the end of each such fiscal year and each such
quarter;
(e) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and regular or special reports
(other than reports on Form 10-K and Form 10-Q but including those on Form
8-K) and registration statements under the Securities Act of 1933, as
amended (other than those on Form S-8 or any successor form relating to
the registration of securities offered pursuant to any employee benefit
plan) which the Company sends to its stockholders or files with the
Securities and Exchange Commission (or any successor governmental
authority);
(f) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, a consolidating balance sheet of
the Company and its Consolidated Subsidiaries as at the close of such
fiscal year and consolidating statements of income and retained earnings
of the Company and its Consolidated Subsidiaries for such year; and
(g) from time to time such further information regarding the
business, affairs and financial condition of the Company and its
Subsidiaries as the Lenders shall reasonably request.
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56
SECTION 6.02. Notices of Material Events. The Company will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that constitutes a Material Adverse
Effect; and
(c) any other development that constitutes a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. The Company will, and will
cause each of its Consolidated Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises necessary
to the conduct of its business, except, in the case of the legal existence of
any such Consolidated Subsidiary (other than an Unguaranteed Borrower) or any
such right, license, permit, privilege or franchise, where the failure to so
preserve, renew and keep in full force and effect does not constitute a Material
Adverse Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 8.03.
SECTION 6.04. Compliance with Contractual Obligations. The Company will, and
will cause each of its Consolidated Subsidiaries to comply with all its
Contractual Obligations except to the extent that failure to comply therewith
does not, in the aggregate, constitute a Material Adverse Effect.
SECTION 6.05. Records, etc. The Company shall keep accurate and complete
records with respect to the goods financed by the Acceptances for its account
and, upon request by the Lenders or any of their representatives, shall promptly
furnish to the Lenders, or any of their representatives such records or copies
thereof.
SECTION 6.06. Insurance. The Company will, and will cause each of its
Consolidated Subsidiaries to, maintain in full force and effect such policies of
insurance in such amounts issued by insurers of recognized responsibility
covering the properties and operations of the Company and its Consolidated
Subsidiaries as is customarily maintained by corporations engaged in the same or
similar business in the localities where the properties and operations are
located, including but not limited to insurance in connection with the disposal,
handling, storage, transportation or generation of hazardous
<PAGE> 62
57
materials; provided, however, that nothing shall prevent the Company or any of
its Consolidated Subsidiaries from effecting workers' compensation or similar
insurance in respect of operations in any state or other jurisdiction through an
insurance fund operated by such state or jurisdiction or from maintaining a
system or systems of self-insurance covering its properties or operations as
provided above to the extent that such self-insurance is customarily effected by
corporations engaged in the same or similar businesses similarly situated and is
otherwise prudent in the circumstances.
SECTION 6.07. Compliance with Laws. The Company will, and will cause each of
its Consolidated Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, does not
constitute a Material Adverse Effect.
SECTION 6.08. Use of Proceeds and Acceptances. The proceeds of the Loans
will be used for general corporate purposes of the Company and its Subsidiaries
in the ordinary course of business, including, without limitation, the
refinancing of existing Debt. The proceeds of Acceptances will be used to
finance the trade transactions specified at the time of creation thereof. No
part of the proceeds of any Loan or Acceptance will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations G, T, U and X of the Board as in effect from
time to time.
ARTICLE VII
Affirmative Covenants of Unguaranteed Borrowers
Until either (i) the Commitments with respect to an Unguaranteed
Borrower have expired or been terminated and the principal of and interest on
each Loan made to such Unguaranteed Borrower and all fees payable hereunder by
such Unguaranteed Borrower shall have been paid in full and all Acceptances
created for the account of such Unguaranteed Borrower shall no longer be
outstanding and all Acceptance Obligations with respect thereto shall have been
reimbursed or (ii) such Unguaranteed Borrower shall have been designated as a
Guaranteed Borrower pursuant to Section 13.02(c)(iii), such Unguaranteed
Borrower covenants and agrees with the Lenders that:
SECTION 7.01. Financial Statements and Other Information. Such Unguaranteed
Borrower will furnish to each Lender:
(a) as soon as available and in any event within 140 days after the
end of each of its fiscal years, its audited financial statements for such
fiscal year, in each case containing a consolidated balance sheet as at
the close of such fiscal year, statements of consolidated income and
retained earnings and a statement of
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consolidated cash flows for such year, setting forth in comparative form
the corresponding figures of the preceding fiscal year and certified by
Ernst & Young, LLP, or other independent public accountants selected by
such Unguaranteed Borrower and satisfactory to the Lenders; provided,
that, notwithstanding the foregoing unless the Required Lenders shall give
written notice to AHN requiring audited financial statements, the annual
financial statements of AHN delivered pursuant to this paragraph (a) may
be unaudited and certified by a Financial Officer of AHN;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each of its fiscal years, its
financial statements with respect to such fiscal quarters, in each case
containing a consolidated balance sheet as at the end of such quarter, a
statement of consolidated income and a statement of consolidated cash
flows for such period, prepared on a basis consistent with the
corresponding period of the preceding fiscal year, except as disclosed in
said financial statements or otherwise disclosed to the Lenders in
writing, and certified by a Financial Officer of the Company, subject
however, to year-end and audit adjustments;
(c) within 140 days after the end of each fiscal year of such
Unguaranteed Borrower, a certificate of the independent public accountants
certifying the financial statements delivered pursuant to paragraph (a)
above, as to whether, during the course of their examination of such
Unguaranteed Borrower's financial statements, they obtained any knowledge
of any Default, insofar as such Default involves accounting matters;
(d) within 140 days after the end of each fiscal year of such
Unguaranteed Borrower and within 60 days after the end of each of the
first three quarters of each fiscal year of such Unguaranteed Borrower, a
statement, signed by a Financial Officer of the Company, setting forth the
computations of the Unguaranteed Borrower Capitalization Ratio of such
Unguaranteed Borrower as of the end of each such fiscal year and each such
quarter;
(e) promptly after the sending or filing thereof, copies of all
statements and regular or special reports and registration statements, if
any, with respect to its securities which such Unguaranteed Borrower sends
to its stockholders or files with a securities regulatory authority (or
any successor Governmental Authority); and
(f) from time to time such further information regarding the
business, affairs and financial condition of such Unguaranteed Borrower
and its Consolidated Subsidiaries as the Lenders shall reasonably request.
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SECTION 7.02. Notices of Material Events. Such Unguaranteed Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default with respect to it or any of its
Consolidated Subsidiaries;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
such Unguaranteed Borrower or any Affiliate thereof that constitutes a
Material Adverse Effect; and
(c) any other development with respect to it that constitutes a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of such Unguaranteed Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 7.03. Existence; Conduct of Business. Such Unguaranteed Borrower
will, and will cause each of its Consolidated Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
necessary to the conduct of its business, except, in the case of the legal
existence of any such Consolidated Subsidiary (except to the extent it is also
an Unguaranteed Borrower) or any such right, license, permit, privilege or
franchise, where the failure to so preserve, renew and keep in full force and
effect does not constitute a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 9.03.
SECTION 7.04. Compliance with Contractual Obligations. Such Unguaranteed
Borrower will, and will cause each of its Consolidated Subsidiaries to comply
with all its Contractual Obligations except to the extent that failure to comply
therewith does not, in the aggregate, constitute a Material Adverse Effect.
SECTION 7.05. Records, etc. Such Unguaranteed Borrower shall keep accurate
and complete records with respect to the goods financed by the Acceptances for
its account and, upon request by the Lenders or any of their representatives,
shall promptly furnish to the Lenders, or any of their representatives such
records or copies thereof.
SECTION 7.06. Insurance. Such Unguaranteed Borrower will, and will cause
each of its Consolidated Subsidiaries to, maintain in full force and effect such
policies of insurance in such amounts issued by insurers of recognized
responsibility covering the properties and operations of such Unguaranteed
Borrower and its Consolidated Subsidiaries as is
<PAGE> 65
60
customarily maintained by corporations engaged in the same or similar business
in the localities where the properties and operations are located, including but
not limited to insurance in connection with the disposal, handling, storage,
transportation or generation of hazardous materials; provided, however, that
nothing shall prevent such Unguaranteed Borrower or any of its Consolidated
Subsidiaries from effecting workers' compensation or similar insurance in
respect of operations in any state or other jurisdiction through an insurance
fund operated by such state or jurisdiction or from maintaining a system or
systems of self-insurance covering its properties or operations as provided
above to the extent that such self-insurance is customarily effected by
corporations engaged in the same or similar businesses similarly situated and is
otherwise prudent in the circumstances.
SECTION 7.07. Compliance with Laws. Such Unguaranteed Borrower will, and
will cause each of its Consolidated Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
ARTICLE VIII
Negative Covenants of the Company
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61
The Company covenants and agrees with the Lenders that until the
Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder by the Company have been paid in full and
all Acceptances have expired or terminated and all Acceptance Obligations with
respect thereto shall have been reimbursed:
SECTION 8.01. Financial Covenant. The Company shall not permit the Company
Capitalization Ratio to exceed 60%.
SECTION 8.02. Liens. The Company will not, and will not permit any of its
Consolidated Subsidiaries to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any of its
Consolidated Subsidiaries existing on the date hereof and set forth in
Schedule 8.02; provided that (i) such Lien shall not apply to any other
property or asset of the Company or any of its Consolidated Subsidiaries
and (ii) such Lien shall secure only those obligations which it secures on
the date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any of its Consolidated Subsidiaries
or existing on any property or asset of any Person that becomes a
Consolidated Subsidiary after the date hereof prior to the time such
Person becomes a Consolidated Subsidiary; provided that (i) such Lien is
not created in contemplation of or in connection with such acquisition or
such Person becoming a Consolidated Subsidiary, (ii) such Lien shall not
apply to any other property or assets of the Company or any of its
Consolidated Subsidiaries and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Consolidated Subsidiary, and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) Liens securing or consisting of Debt of the Company and its
Consolidated Subsidiaries incurred to finance the acquisition of fixed or
capital assets; provided that (i) such Liens shall be created
substantially simultaneously with such acquisition, (ii) such Liens
securing such Debt do not at any time encumber any property other than the
property financed by such Debt and (iii) the principal amount of Debt
secured by any such Lien shall at no time exceed 100%
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62
of the original purchase price of such assets (in the case of a purchase)
or fair value of such property at the time it was acquired (in all other
cases);
(e) Liens to secure Debt of the Company and its Consolidated
Subsidiaries not otherwise permitted by this Section 8.02, to the extent
that the aggregate Debt secured thereby does not exceed 15% of the
Consolidated Net Tangible Assets of the Company and its Consolidated
Subsidiaries; and
(f) Liens on assets of any Consolidated Subsidiary of the Company
(other than an Unguaranteed Borrower) securing indebtedness owed to the
Company or any other Consolidated Subsidiary of the Company.
SECTION 8.03. Fundamental Changes. (a) The Company will not consolidate with
or merge into any other Person, or permit any Person to merge or consolidate
into it, or make any sale or other disposition of all or substantially all of
its assets to, or acquire substantially all of the assets of, any other Person,
or liquidate or dissolve unless:
(i) the survivor of any such merger or consolidation or the
purchaser or acquiror of such assets shall be a corporation incorporated
under the laws of one of the States of the United States and not more than
25% of the voting stock (assuming the conversion of all convertible
securities and exercise of all options, rights or warrants) of such
survivor or such purchaser shall be owned by such other Person or its
owners and shareholders;
(ii) such survivor or such purchaser (if not the Company) shall
expressly assume the obligations of the Company under this Agreement
pursuant to documentation in form and substance satisfactory to the
Administrative Agent; and
(iii) at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing and the Company
shall have furnished the Administrative Agent with evidence of compliance
with the provisions of this Section 8.03.
(b) The Company will not, and will not permit any of its
Consolidated Subsidiaries to, engage to any material extent in any
business other than energy-related businesses.
SECTION 8.04. Restrictive Agreements. The Company will not, and will not
permit any of its Consolidated Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any
Unguaranteed Borrower to pay dividends or other distributions with respect to
any shares of its capital stock or to make or repay loans or advances to the
Company if at the time such agreement or other arrangement is entered
<PAGE> 68
63
into, it imposes restrictions which would prevent the payment by an Unguaranteed
Borrower of such dividends or distributions to the Company at a time when such
payments would be permitted by the Unguaranteed Borrower Capitalization Ratio of
such Unguaranteed Borrower.
ARTICLE IX
Negative Covenants of Unguaranteed Borrowers
Each Unguaranteed Borrower covenants and agrees with the Lenders
that until either (i) the Commitments with respect to such Unguaranteed Borrower
have expired or terminated and the principal of and interest on each Loan made
to such Unguaranteed Borrower and all fees payable hereunder have been paid in
full and all Acceptances created for the account of such Unguaranteed Borrower
shall no longer be outstanding and all Acceptance Obligations with respect
thereto shall have been reimbursed or (ii) such Unguaranteed Borrower shall have
been designated as a Guaranteed Borrower pursuant to Section 13.02(c)(iii):
SECTION 9.01. Financial Covenant. Such Unguaranteed Borrower shall not
permit the Unguaranteed Borrower Capitalization Ratio with respect to it to
exceed 75%.
SECTION 9.02. Liens. Such Unguaranteed Borrower will not, and will not
permit any of its Consolidated Subsidiaries to, create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of such Unguaranteed Borrower
or any of its Consolidated Subsidiaries existing on the date hereof and
set forth in Schedule 9.02; provided that (i) such Lien shall not apply to
any other property or asset of such Unguaranteed Borrower or any of its
Consolidated Subsidiaries and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by such Unguaranteed Borrower or any of its
Consolidated Subsidiaries or existing on any property or asset of any
Person that becomes a Consolidated Subsidiary after the date hereof prior
to the time such Person becomes a Consolidated Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Consolidated Subsidiary, as the
case may be, (ii) such Lien shall not apply to
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64
any other property or assets of such Unguaranteed Borrower or any of its
Consolidated Subsidiaries and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Consolidated Subsidiary, and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) Liens securing or consisting of Debt of such Unguaranteed
Borrower and its Consolidated Subsidiaries incurred to finance the
acquisition of fixed or capital assets; provided that (i) such Liens shall
be created substantially simultaneously with such acquisition, (ii) such
Liens securing such Debt do not at any time encumber any property other
than the property financed by such Debt and (iii) the principal amount of
Debt secured by any such Lien shall at no time exceed 100% of the original
purchase price of such assets (in the case of a purchase) or fair value of
such property at the time it was acquired (in all other cases);
(e) Liens to secure Debt of such Unguaranteed Borrower and its
Consolidated Subsidiaries not otherwise permitted by this Section 9.02, to
the extent that the aggregate Debt secured thereby does not exceed 20% of
the Consolidated Net Tangible Assets of such Unguaranteed Borrower and its
Consolidated Subsidiaries; and
(f) Liens on assets of any Consolidated Subsidiary of an
Unguaranteed Borrower (other than any such Subsidiary which is also an
Unguaranteed Borrower) securing indebtedness owed to the Company or any
other Consolidated Subsidiary of such Unguaranteed Borrower.
SECTION 9.03. Fundamental Changes. (a) Such Unguaranteed Borrower will not
consolidate with or merge into any other Person, or permit any Person to merge
or consolidate into it, or make any sale or other disposition of all or
substantially all of its assets to, or acquire substantially all of the assets
of, any other Person, or liquidate or dissolve; provided, that such Unguaranteed
Borrower may merge or consolidate with another Person if:
(i) such Unguaranteed Borrower shall be the survivor of any
such merger or consolidation; and
(ii) at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing and such
Unguaranteed Borrower shall have furnished the Administrative Agent with
evidence of compliance with the provisions of this Section 9.03.
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(b) Such Unguaranteed Borrower will not, and will not permit any of
its Consolidated Subsidiaries to, engage to any material extent in any business
other than energy-related businesses.
ARTICLE X
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall be in default in the payment when due of any
principal of any Loan or any Acceptance Obligation on the maturity date
thereof;
(b) any Borrower shall be in default for five days in the payment
when due of any interest on any Loan or any other amount (other than
principal) due hereunder;
(c) any representation or warranty made or deemed made by the
Company in Article III or any Subsidiary Borrower in Article IV or in any
certificate of any Borrower furnished to the Administrative Agent or any
Lender hereunder shall prove to have been incorrect, when made or deemed
made, in any material respect; provided, however, that no such
representation or warranty contained in Section 3.04, 3.05, 4.04 or 4.05
shall be deemed to have been incorrect when made by such Borrower by
reason of any facts or circumstances disclosed in any financial statements
or reports furnished under Section 6.01 or 7.01 and received by the
Lenders not later than 45 days prior to, or otherwise specifically
disclosed in writing to the Lenders at least 15 days prior to, the date
such representation and warranty is made or deemed to be made in
connection with the making of this Agreement or in connection with the
making of a Loan to such Borrower or the occasion of any Borrowing or the
creation of any Acceptance for the account of such Borrower as
contemplated in Sections 5.02 and 5.03;
(d) the Company or any Unguaranteed Borrower shall be in default in
the performance of the covenants contained in Sections 8.03 or 9.03 for
five consecutive days after such default shall have become known to the
Company or such Unguaranteed Borrower, or any Borrower shall be in default
in the performance of any other covenant, condition or agreement contained
in this Agreement or any Draft for 30 consecutive days after such default
shall have become known to such Borrower;
(e) any obligation of any Borrower in respect of any Material
Indebtedness now or hereafter outstanding shall become due by its terms
whether by acceleration or otherwise and shall not be paid, extended or
refunded or any
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default or event of default shall occur in respect of any such obligation
and shall continue for a period of time sufficient to cause or permit the
acceleration of maturity thereof, or any Borrower shall fail to pay any
Swap Payment Obligation of such Borrower in excess of $10,000,000 when due
and payable (whether by acceleration or otherwise), unless such Borrower
is contesting such Swap Payment Obligation in good faith by appropriate
proceedings and has set aside appropriate reserves relating thereto in
accordance with GAAP; provided that in the case of any guaranties,
endorsements and other contingent obligations in respect of any such
obligation for borrowed money of an entity other than such Borrower (all
of the foregoing being herein called "Accommodation Guaranty
Indebtedness"), a default with respect to any evidence of Accommodation
Guaranty Indebtedness of such Borrower or under any agreement under which
any such evidence of Accommodation Guaranty Indebtedness may be
outstanding shall constitute an Event of Default hereunder only if there
shall have been a default in the performance by such Borrower of its
obligations with respect to such Accommodation Guaranty Indebtedness and
such default shall continue for more than 30 days after a holder or
beneficiary of such Accommodation Guaranty Indebtedness shall have
demanded the performance of such obligation;
(f) final judgment for the payment of money in excess of $10,000,000
shall be rendered against any Borrower and the same shall remain
undischarged for a period of 60 days during which the judgment shall not
be on appeal or execution thereof shall not be effectively stayed; or
(g) any Borrower shall (i) apply for or consent to the appointment
of a receiver, trustee or liquidator of itself or of all or a substantial
part of its assets, (ii) be unable, or admit in writing its inability or
failure, to pay its debts generally, (iii) make a general assignment for
the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, (v)
commence any case, proceeding or other action under any existing or future
law relating to bankruptcy, insolvency, reorganization or relief of
debtors seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding up, liquidation,
dissolution, composition or other relief with respect to it or its debts
or an arrangement with creditors or taking advantage of any insolvency law
or proceeding for the relief of debtors, or file an answer admitting the
material allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding, or (vi) take corporate action for
the purpose of effecting any of the foregoing;
(h) any case, proceeding or other action shall be instituted in any
court of competent jurisdiction, against any Borrower, seeking in respect
of such Borrower adjudication in bankruptcy, reorganization, dissolution,
winding up, liquidation, a composition or arrangement with creditors, a
readjustment of debts, the appointment of a trustee, receiver, liquidator
or the like of such Borrower or of all
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or any substantial part of its assets, or other like relief in respect of
such Borrower under any bankruptcy or insolvency law and such case,
proceeding or other action results in an entry of an order for relief or
any such adjudication or appointment or if such case, proceeding or other
action is being contested by such Borrower in good faith, the same shall
continue undismissed, or unstayed and in effect, for any period of 60
consecutive days;
(i) at any time subsequent to December 31, 1996 and prior to the
Maturity Date, Continuing Directors shall fail to constitute at least a
majority of the Board of Directors of the Company; for the foregoing
purpose, the term "Continuing Directors" means those persons who were
directors of the Company on December 31, 1996 and any person whose
election or nomination for election as a director of the Company at any
time subsequent thereto was approved by at least a majority of the persons
who were then Continuing Directors;
(j) the Company shall fail to own, directly or indirectly, 100% of
the issued and outstanding capital stock with the power to vote in the
election of directors of each of the Unguaranteed Borrowers; or
(k) the Company shall assert that the guarantee provided for in
Article XI is not in full force and effect or such guarantee shall cease
to actually be in full force and effect for a period of 15 days;
then, and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent shall, at the
request of the Required Lenders, by notice to the Company, take either or both
of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans and Acceptance Obligations then outstanding to be due and
payable in whole (or in part, in which case any principal or face amount not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon, the Acceptance Obligations and
all fees and other obligations of any of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each of the
Borrowers; and in case of any event with respect to the Company described in
clause (g) or (h) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon, the Acceptance Obligations and all fees and other obligations of each
of the Borrowers accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each of the Borrowers. Notwithstanding the foregoing, no
Event of Default shall exist pursuant to clauses (c) and (d) of this Article X
arising out of any breach of a representation or warranty or covenant by an
Unguaranteed Borrower, or pursuant to
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clause (j) of this Article arising out of the failure of the Company to own,
directly or indirectly, 100% of the capital stock of an Unguaranteed Borrower,
if the Company shall have designated such Unguaranteed Borrower as a Guaranteed
Borrower pursuant to Section 13.02(c)(iii) or shall have caused such
Unguaranteed Borrower to cease to be a Borrower pursuant to Section
13.02(c)(ii).
It is understood and agreed that no Event of Default will be deemed
to have occurred by reason of (i) a breach of Section 8.01, 8.02(e), 8.04, 9.01
or 9.02(e) resulting solely from a change in GAAP after the Effective Date or
(ii) a breach of any of the provisions of this Agreement resulting solely from a
change in the reporting requirements of the Securities and Exchange Commission.
ARTICLE XI
Guarantee
SECTION 11.01. Guarantee. In order to induce the Lenders and the
Administrative Agent to execute and deliver this Agreement and to make the Loans
hereunder, and in consideration thereof:
(a) The Company hereby unconditionally and irrevocably guarantees to
the Administrative Agent, for the ratable benefit of the Lenders, the
prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Guaranteed Borrower
Obligations. The Company further agrees to pay any and all reasonable
expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the
Administrative Agent in enforcing, or obtaining advice of counsel in
respect of, any of their rights under this Article XI. Without limiting
the generality of the foregoing, the Company's liability shall extend to
all amounts that constitute part of the Guaranteed Borrower Obligations
and would be owed by the Guaranteed Borrowers but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving a Guaranteed Borrower. This
Guarantee shall remain in full force and effect until the Guaranteed
Borrower Obligations have been paid in full, notwithstanding that from
time to time prior thereto any or all of the Guaranteed Borrowers may be
free from any Guaranteed Borrower Obligations.
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(b) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent on account of
its liability under this Article XI, it will notify the Administrative
Agent in writing that such payment is made under this Article XI for such
purpose. No payment or payments made by a Guaranteed Borrower or any other
Person or received or collected by the Administrative Agent from a
Guaranteed Borrower or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application, at any time or
from time to time, in reduction of or in payment of the Guaranteed
Borrower Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Company hereunder which shall remain
obligated for the Guaranteed Borrower Obligations, notwithstanding any
such payment or payments (other than payments either (i) made by or (ii)
received or collected from, the Company in respect of the Guaranteed
Borrower Obligations) until the date upon which the Guaranteed Borrower
Obligations have been paid in full.
SECTION 11.02. No Subrogation. Notwithstanding any payment or payments made
by the Company hereunder, or any set-off or application of funds of the Company
by the Administrative Agent or any Lender, the Company shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Lender
against any of the Guaranteed Borrowers or against any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Guaranteed Borrower Obligations, nor shall the Company seek
or be entitled to seek any contribution or reimbursement from any of the
Guaranteed Borrowers in respect of payments made by the Company hereunder, until
all amounts owing to the Administrative Agent and the Lenders hereunder shall
have been paid in full and the Commitments are terminated. If any amount shall
be paid to the Company on account of such subrogation rights at any time when
all amounts owing to the Administrative Agent and the Lenders hereunder shall
not have been paid in full and the Commitments shall not have been terminated,
such amount shall be held by the Company in trust for the Administrative Agent
and the Lenders, segregated from other funds of the Company, and shall,
forthwith upon receipt by the Company, be turned over to the Administrative
Agent in the exact form received by the Company (duly indorsed by the Company to
the Administrative Agent, if required), to be held as collateral security for
and/or then applied against the Guaranteed Borrower Obligations, whether matured
or unmatured, in such order as the Administrative Agent may determine.
SECTION 11.03. Amendments, etc. The Company shall remain obligated hereunder
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of
any of the Guaranteed Borrower Obligations made by the Administrative Agent or
any Lender may be rescinded by the Administrative Agent or such Lender, and any
of the Guaranteed Borrower Obligations continued, and the Guaranteed Borrower
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or
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guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified or
accelerated as provided herein or therein or compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and this Agreement and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated as provided herein or therein, in whole or
in part, as the Lenders may deem advisable from time to time, and any guarantee
or right of offset at any time held by the Administrative Agent or any Lender
for the payment of the Guaranteed Borrower Obligations may be sold, exchanged,
waived, surrendered or released. When making any demand hereunder against the
Company, the Administrative Agent or any Lender shall make a similar demand on
the appropriate Guaranteed Borrower or Guaranteed Borrowers; provided that the
failure to make any such demand against the Company or such Guaranteed Borrower
or Guaranteed Borrowers shall not affect this Guarantee.
SECTION 11.04. Guarantee Absolute and Unconditional. The Company waives any
and all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantees contained in this Article
XI, or acceptance of the guarantee provisions of this Article XI, the Guaranteed
Borrower Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon the guarantees contained in
this Article XI, and all dealings between the Company or any of the Guaranteed
Borrowers, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon the guarantees contained in this Article XI. The Company waives
(to the extent permitted by law) diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Company or any of the
Guaranteed Borrowers with respect to the Guaranteed Borrower Obligations. To the
extent permitted by law, the guarantees contained in this Article XI shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this Agreement or any of
the documents executed in connection therewith, any of the Guaranteed Borrower
Obligations or any guarantee or right of offset with respect thereto at any time
or from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any of the
Guaranteed Borrowers against the Administrative Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Company or any of the Guaranteed Borrowers) other than payment in full of the
Guaranteed Borrower Obligations which constitutes, or might be construed to
constitute, an equitable or legal discharge of a Guaranteed Borrower for the
Guaranteed Borrower Obligations, or of the Company under the guarantees
contained in this Article XI, in bankruptcy or in any other instance. When the
Administrative Agent or any Lender is pursuing its rights and remedies hereunder
against the Company, the Administrative Agent or any Lender may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
any of the Guaranteed Borrowers or any other Person or
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71
against any collateral security or guarantee for the Guaranteed Borrower
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from any of the Guaranteed Borrowers or any such other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of any of the Guaranteed
Borrowers or any such other Person or of any such collateral security, guarantee
or right of offset, shall not relieve the Company of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agent and the Lenders
against the Company.
SECTION 11.05. Reinstatement. Each of the guarantees contained in this
Article XI shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Guaranteed Borrower
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of a Guaranteed Borrower or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, a Guaranteed Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
SECTION 11.06. Payments. The Company hereby agrees that the Guaranteed
Borrower Obligations will be paid to the Administrative Agent without set-off or
counterclaim in the currency in which each of the Guaranteed Borrower
Obligations is originally denominated at the office of the Administrative Agent
located at 270 Park Avenue, New York, New York 10017 or at such other office as
the Administrative Agent shall designate in writing to the Company.
ARTICLE XII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with any Borrower or any of its Subsidiaries
thereof or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
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72
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any of the Borrowers or any of their Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or all the Lenders to the extent required by Section 13.02
or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Company or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for any of the Borrowers), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent,
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73
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint one of the Lenders a successor. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and in consultation with the Company, appoint one of the Lenders as a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 13.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE XIII
Miscellaneous
SECTION 13.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to Amerada Hess Corporation, 1185 Avenue of
the Americas, New York, New York 10036, Attention of Treasurer (Telecopy
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No. (212) 536-8617), if to AHL, AHN or Hess-Denmark, at its address for
notices set forth beneath its name on the signature pages hereto and if to
any other Borrower, at its address for notices specified in its Joinder
Agreement;
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, 1 Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention of Sandra Miklave (Telecopy No. (212) 552-5658),
with a copy to The Chase Manhattan Bank, 1 Chase Manhattan Plaza, 3rd
Floor, New York 10081, Attention of Mary Jo Woodford (Telecopy No. (212)
552-1687); provided that notices and other communications with respect to
Loans made to any London Subsidiary Borrower shall be made to the
Administrative Agent at The Chase Manhattan Bank, 125 London Wall, London,
United Kingdom, Attention of Stephen Clarke (Telecopy No. (44-171)
777-2360, with a copy to each of the other parties specified in this
paragraph (b);
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 13.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any of the
Borrowers therefrom shall in any event be effective unless the same shall be
permitted by this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by each of the Borrowers and the Required Lenders or by each of the
Borrowers and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of
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interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees or any other amount payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender, (vi) release the Company from its obligations under Article XI
without the written consent of each Lender, (vii) make any modification of
clause (j) of Article X if such modification would permit the Company to own
less than a majority of the voting stock of any Unguaranteed Borrower without
the written consent of each Lender or (viii) any modification of clause (j) of
Article X if such modification would permit the Company to own less than 100%
(but not less than a majority) of the voting stock of any Unguaranteed Borrower
without the written consent of Lenders having Revolving Credit Exposures and
unused Commitments representing at least 75% of the sum of the total Revolving
Credit Exposures and unused Commitments at such time; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
(c) Schedule B and Schedule C may be amended, so long as no Default
shall have occurred and be continuing, as follows:
(i) Schedule C will be amended to add Subsidiaries of the Company as
additional Subsidiary Borrowers and, in the case of an Unguaranteed
Borrower, to specify the Designated Maximum with respect thereto upon (x)
execution and delivery by the Company, such additional Subsidiary
Borrowers and the Administrative Agent, of a Joinder Agreement, providing
for such Subsidiaries to become Subsidiary Borrowers, (y) delivery to the
Administrative Agent of (1) corporate resolutions, other corporate
documents, certificates and legal opinions in respect of such additional
Subsidiary Borrowers substantially equivalent to comparable documents
delivered on the Effective Date in respect of the Subsidiary Borrowers
party to this Agreement on the Effective Date, (2) in the case of an
Unguaranteed Borrower, audited consolidated financial statements of such
Unguaranteed Borrower for each of its two most recently completed fiscal
years prior to the date it became a party to this Agreement and unaudited
interim consolidated financial statements for each fiscal quarterly period
ended subsequent to the date of the latest annual financial statements
delivered pursuant hereto and prior to the date it became a party to this
Agreement as to which financial statements are reasonably available and
(3) such other documents with
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respect thereto as the Administrative Agent shall reasonably request and
(z) in the case of an Unguaranteed Borrower, the written approval of all
the Lenders, including the written approval of all the Lenders to the
Designated Maximum with respect to such Unguaranteed Borrower.
(ii) Schedule C will be amended to remove any Subsidiary of the
Company as a Subsidiary Borrower for all purposes hereunder upon execution
and delivery by the Company to the Administrative Agent of a written
notification to such effect and (A) repayment in full of all Revolving
Loans made to such Subsidiary Borrower and all other amounts owing by such
Subsidiary Borrower under this Agreement (other than in respect of
Competitive Loans and Acceptances) and (B) the Company assuming as the
primary obligor all other obligations, if any, of such Subsidiary Borrower
owing under this Agreement, including obligations in respect of
Competitive Loans and Acceptances.
(iii) Schedule C will be amended to (x) designate any Unguaranteed
Borrower as a Guaranteed Borrower upon execution and delivery by the
Company to the Administrative Agent of a written notification to such
effect and a written acknowledgement that the obligations of such newly
designated Guaranteed Borrower under this Agreement (whether then
outstanding or thereafter incurred) are guaranteed by the Company pursuant
to the terms of Article XI to the same extent as if such obligations were
originally incurred as Guaranteed Borrower Obligations, (y) designate any
Guaranteed Borrower as an Unguaranteed Borrower upon execution and
delivery by the Company to the Administrative Agent of a written request
to such effect and the written approval of all the Lenders, including the
approval of all the Lenders to the Designated Maximum with respect to such
Unguaranteed Borrower or (z) increase the Designated Maximum with respect
to any Unguaranteed Borrower upon execution and delivery by such
Unguaranteed Borrower of a written request to such effect and the written
approval of all the Lenders thereof.
(iv) Schedule C will be amended to provide for a Supplemental
Guaranteed Amount in respect of any Unguaranteed Borrower upon delivery by
the Company to the Administrative Agent of a written notification to such
effect and a written acknowledgement that the principal amount of Loans
made to, on face amount of Acceptances created for the account of, such
Unguaranteed Borrower in excess of the Designated Maximum for such
Unguaranteed Borrower (together, in each case, with interest thereon and
all other amounts payable by such Unguaranteed Borrower hereunder with
respect thereto) are guaranteed by the Company pursuant to the terms of
Article XI to the same extent as if such obligations were originally
incurred as Guaranteed Borrower Obligations.
(v) Schedule B will be amended to add additional Designated Foreign
Currencies upon execution and delivery by the Company and approval by all
of
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the Lenders and the Administrative Agent of a written instrument providing
for such amendment.
The Administrative Agent shall give prompt written notice of any such amendment
to Schedule B or Schedule C.
(d) If any Lender does not consent to the request by the Company
that (i) one of its Subsidiaries be designated an Unguaranteed Borrower or (ii)
the Designated Maximum with respect to an Unguaranteed Borrower be increased,
then the Company may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate,
without recourse, all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it or Acceptance
Obligations owed to it) to an assignee provided by the Company that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such non-consenting Lender shall have received payment of an
amount equal to the outstanding principal of its Revolving Loans, accrued
interest thereon, accrued fees and all other amounts (other than in respect of
Competitive Loans and Acceptances) payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Company (in the case of all other amounts) and (iii) the Company shall have
assumed any obligations, if any, owing to such non-consenting Lender by any
Unguaranteed Borrower in respect of outstanding Competitive Loans or
Acceptances.
SECTION 13.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers jointly
and severally agree to pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.
(b) The Borrowers jointly and severally agree to indemnify the
Administrative Agent and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any
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Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to any Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee or
from a breach of this Agreement by such Indemnitee.
(c) To the extent that a Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, none of the Borrowers
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 13.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that none of the
Borrowers may assign or otherwise transfer any of its rights or obligations
hereunder (except an assignment by a Subsidiary Borrower to the Company) without
the prior written consent of each Lender (and any attempted assignment or
transfer by any such Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of
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each of the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company (except, upon the occurrence and during the continuance of
an Event of Default, the consent of the Company shall not be required) and the
Administrative Agent must give their prior written consent to such assignment
(which consent, in the case of the Administrative Agent, shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the assigning
Lender subject to each such assignment and the amount of the Commitment which
will be retained by the assigning Lender (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall each not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans or Acceptances, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together
(except in the case of an assignment by a Lender to one of its Affiliates or an
assignment as a result of any of the events contemplated by Section 2.18 or
Section 13.02(d)) with a processing and recordation fee of $3,500, and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; provided further that any consent of the
Company otherwise required under this paragraph shall not be required if an
Event of Default under clause (g) or (h) of Article X has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 13.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
each of the Borrowers, shall maintain at one of its offices in The City of New
York a copy of
<PAGE> 85
80
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any of the Borrowers or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 13.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, each
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participations sold to such Participant,
unless the sale of the participations to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participations sold to such
<PAGE> 86
81
Participant and such Participant agrees, for the benefit of the Borrowers, to
comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any such pledge or assignment to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
SECTION 13.05. Survival. All covenants, agreements, representations and
warranties made by any of the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 13.03 and Article XI shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 13.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 5.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 13.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity,
<PAGE> 87
82
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 13.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Borrower against any of and all the obligations of
any of the Borrowers now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 13.09. Governing Law; Jurisdiction; Consent to Service of Process;
Process Agent; Waiver of Immunity. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against any Borrower or its properties in the courts of any
jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each Borrower irrevocably consents to service of process in the
manner provided for notices to the Company in Section 13.01 and each other party
to this
<PAGE> 88
83
Agreement irrevocably consents to service of process in the manner provided for
notices to it in Section 13.01, and for such purpose each Subsidiary Borrower
hereby irrevocably appoints the Company as its agent for service of process and
the Company hereby accepts such appointment and irrevocably agrees to act as
such agent and to promptly provide to each Subsidiary Borrower copies of any
documents served upon it as agent for such Subsidiary Borrower. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(e) To the extent that any Subsidiary Borrower has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) with respect to
itself or any of its property, such Subsidiary Borrower hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement.
SECTION 13.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 13.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
<PAGE> 89
84
SECTION 13.12. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than any of the Borrowers. For the purposes of this Section, "Information"
means all information received from any of the Borrowers relating to such
Borrower or its business, including the Confidential Information Memorandum
dated April 1997 distributed to the Lenders prior to the Effective Date, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by such Borrower; provided
that, in the case of information received from such Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 13.13. Judgment. The obligations of each Borrower hereunder due to
any party hereto in dollars shall, notwithstanding any judgment in a currency
(the "judgment currency") other than dollars, be discharged only to the extent
that on the Business Day following receipt by such party of any sum adjudged to
be so due in the judgment currency such party may in accordance with normal
banking procedures purchase dollars with the judgment currency; if the amount of
dollars so purchased is less than the sum originally due to such party in
dollars, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such party against such loss, and if the amount of
dollars so purchased exceeds the sum originally due to any party to this
Agreement, such party agrees to remit to such Borrower such excess.
<PAGE> 90
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
AMERADA HESS CORPORATION
By /s/John Y. Schreyer
----------------------------------------
Name: John Y. Schreyer
Title: Executive Vice President
By /s/G. A. Jamin
----------------------------------------
Name: G. A. Jamin
Title: Treasurer
AMERADA HESS LIMITED
By /s/W. S. H. Laidlaw
----------------------------------------
Name: W. S. H. Laidlaw
Title: Director
AMERADA HESS NORGE A/S
By /s/John Y. Schreyer
----------------------------------------
Name: John Y. Schreyer
Title: Director
AMERADA HESS A/S
By /s/W. S. H. Laidlaw
----------------------------------------
Name: W. S. H. Laidlaw
Title: Director
<PAGE> 91
86
THE CHASE MANHATTAN BANK, as a
Lender and as Administrative Agent
By /s/Mary Jo Woodford
----------------------------------------
Name: Mary Jo Woodford
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By /s/Oliver Wesson
----------------------------------------
Name: Oliver Wesson
Title: Vice President
CITIBANK, N.A.
By /s/Rufus Beldam
----------------------------------------
Name: Rufus Beldam
Title: Managing Director
(Attorney in Fact)
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/Ronald E. McKay
----------------------------------------
Name: Ronald E. McKay
Title: Vice President
<PAGE> 92
87
BARCLAYS BANK PLC
By /s/Andy Verdin
----------------------------------------
Name: Andy Verdin
Title: Relationship Director
ABN AMRO BANK N.V.
NEW YORK BRANCH
By /s/Nancy W. Lanzoni
----------------------------------------
Name: Nancy W. Lanzoni
Title: Group Vice President
By /s/Thomas T. Rogers
----------------------------------------
Name: Thomas T. Rogers
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/Raymond J. Palmer
----------------------------------------
Name: Raymond J. Palmer
Title: Vice President
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY
By /s/J. Alan Edwards
----------------------------------------
Name: J. Alan Edwards
Title: Authorized Signatory
<PAGE> 93
88
THE BANK OF NOVA SCOTIA, LONDON
BRANCH
By /s/Russel C. Hamer
----------------------------------------
Name: Russel C. Hamer
Title: Senior Manager
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/Paula Mueller
----------------------------------------
Name: Paula Mueller
Title: Vice President
CIBC INC.
By /s/Aleksandra K. Dymanus
----------------------------------------
Name: Aleksandra K. Dymanus
Title: Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/Robert W. Ramage, Jr.
----------------------------------------
Name: Robert W. Ramage, Jr.
Title: Senior Vice President
NATIONSBANK, N.A.
By /s/William D. Clift
----------------------------------------
Name: William D. Clift
Title: Senior Vice President
<PAGE> 94
89
ROYAL BANK OF CANADA
By /s/J. D. Frost
----------------------------------------
Name: J. D. Frost
Title: Senior Manager
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY
By /s/Cynthia A. P. Deere
----------------------------------------
Name: Cynthia A. P. Deere
Title: Vice President
By /s/J. Finley Biggerstaff
----------------------------------------
Name: J. Finley Biggerstaff
Title: Assistant Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA
By /s/Knut Ovreas
----------------------------------------
Name: Knut Ovreas
Title: Senior Manager
By /s/Carolla Moise
----------------------------------------
Name: Carolla Moise
Title: Senior Manager
DEN NORSKE BANK ASA
By /s/Erik Borgen
----------------------------------------
Name: Erik Borgen
Title: Executive Vice President
<PAGE> 95
90
UNIBANK OF DENMARK A/S
(UNIBANK A/S), SINGAPORE BRANCH
By /s/Henrik Sorstrom
----------------------------------------
Name: Henrik Sorstrom
Title: Vice President
By /s/Uffe Jensen Hou
----------------------------------------
Name: Uffe Jensen Hou
Title: Vice President
THE FUJI BANK, LIMITED
By /s/R. W. Allen
----------------------------------------
Name: R. W. Allen
Title: Senior Manager - London Branch
By /s/Toshiaki Yakura
----------------------------------------
Name: Toshiaki Yakura
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/William V. Clifford
----------------------------------------
Name: William V. Clifford
Title: Vice President
DEN DANSKE BANK AKTIESELSKAB
By /s/Mogens Sondergaard
----------------------------------------
Name: Mogens Sondergaard
Title: Vice President
By /s/John A. O'Neill
----------------------------------------
Name: John A. O'Neill
Title: Vice President
<PAGE> 96
91
MIDLAND BANK PLC
By /s/M. Holcomb
----------------------------------------
Name: M.Holcomb
Title:
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By /s/Paul K. Carter
----------------------------------------
Name: Paul K. Carter
Title: Manager & Vice President
NASSAU BRANCH
By /s/Paul K. Carter
----------------------------------------
Name: Paul K. Carter
Title: Manager & Vice President
FLEET NATIONAL BANK
By /s/Robert C. Rubiro
----------------------------------------
Name: Robert C. Rubino
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/A. P. Jenni
----------------------------------------
Name: A. P. Jenni
Title: Senior Relationship Manager
<PAGE> 97
92
DRESDNER BANK AG, NEW YORK BRANCH
By /s/Michael E. Terry
----------------------------------------
Name: Michael E. Terry
Title: Assistant Vice President
By /s/Lawrence E. Jones
----------------------------------------
Name: Lawrence E. Jones
Title: Vice President
<PAGE> 98
SCHEDULE A
1. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and ABN AMRO Bank,
N.V., New York Branch.
2. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Bank of America
Illinois.
3. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The Bank of New
York
4. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The Bank of Nova
Scotia.
5. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Barclays Bank PLC.
6. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The Chase Manhattan
Bank, N.A. (To be terminated effective not later than June 30, 1997).
7. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Chemical Bank. (To
be terminated effective not later than June 30, 1997).
8. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and CIBC Inc.
9. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Citibank, N.A.
10. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Commerzbank A.G.,
Grand Cayman Branch.
11. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Credit Suisse.
12. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and First Fidelity
Bank, N.A.
13. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The First National
Bank of Chicago.
<PAGE> 99
14. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The Industrial Bank
of Japan, Limited.
15. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and The Mitsubishi
Bank, Limited.
16. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Morgan Guaranty
Trust Company of New York.
17. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and National
Westminster Bank PLC.
18. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and NationsBank of
Texas, N.A.
19. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Royal Bank of
Canada.
20. Revolving Credit Agreement dated as of November 15, 1994 among Amerada
Hess Corporation, the other Obligors thereunder and Union Bank of
Switzerland.
21. Agreement dated 4th November, 1994 among Amerada Hess Limited, Chase
Investment Bank Limited and Citibank International PLI as co-arrangers,
Citibank Internal PLC, as agent, and the financial institutions listed
therein (to be terminated effective not later than December 31, 1997).
<PAGE> 100
SCHEDULE B
DESIGNATED FOREIGN CURRENCIES
Pounds Sterling
Deutsche Marks
<PAGE> 101
SCHEDULE C
SUBSIDIARY BORROWERS
Amerada Hess Limited
Amerada Hess Norge A/S
Amerada Hess A/S
<PAGE> 102
SCHEDULE D
CALCULATION OF THE MLA COST
The MLA Cost is calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z)% per annum = MLA Cost
- ---------------------
100-(B+S)
where on the day of application of the formula:
B is the percentage of the Administrative Agent's eligible liabilities which
the Bank of England requires the Administrative Agent to hold on a
non-interest-bearing deposit account in accordance with its cash ratio
requirements.;
Y is the rate at which Pounds Sterling deposits are offered by the
Administrative Agent to leading banks in the London interbank market at or
about 11:00 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of England requires
the Administrative Agent to maintain as secured money with members of the
London Discount Market Association and/or as secured call money with certain
money brokers and gilt-edged primary market makers;
X is the rate at which secured Pounds Sterling deposits in the relevant amount
may be placed by the Administrative Agent with members of the London
Discount Market Association and/or as secured call money with certain money
brokers and gilt-edged primary market makers at or about 11:00 a.m. on that
day for the relevant period;
S is the percentage of the Administrative Agent's eligible liabilities which
the Bank of England requires the Administrative Agent to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of England on special
deposits.
For the purposes of this Schedule D:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "RELEVANT PERIOD" in relation to a Borrowing, means:
(A) if its Interest Period is three months or less, its Interest Period; or
(B) if its Interest Period is more than three months, each successive
period of three months and any necessary shorter period comprised in
that Interest Period.
<PAGE> 103
2
In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages (e.g. if B = 0.5% and Y = 15%, BY is
calculated as 0.5 x 15);
(i) The formula is applied on the first day of each relevant period
comprised in the Interest Period of the relevant Borrowing.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to the nearest 1/32nd of 1%.
If the Administrative Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Administrative Agent
(after consultation with the Lenders) shall notify the Company and AHL of the
manner in which the MLA Cost will subsequently be calculated. The manner of
calculation so notified by the Administrative Agent shall, in the absence of
manifest error, be binding on all the parties hereto.
<PAGE> 104
SCHEDULE 2.01
COMMITMENTS
<TABLE>
<CAPTION>
Lender Commitment
- ------ ----------
<S> <C>
The Chase Manhattan Bank $ 125,000,000
Citibank, N.A 115,000,000
Morgan Guaranty Trust Company of New York 115,000,000
Bank of America National Trust and Savings
Association 115,000,000
Barclays Bank PLC 110,000,000
ABN AMRO Bank N.V., New York Branch 90,000,000
The Bank of New York 90,000,000
The Bank of Nova Scotia 90,000,000
Bank of Tokyo-Mitsubishi Trust Company 90,000,000
CIBC Inc. 90,000,000
The Industrial Bank of Japan, Limited 90,000,000
NationsBank, N.A 90,000,000
Royal Bank of Canada 90,000,000
Union Bank of Switzerland, Houston Agency 90,000,000
Christiania Bank Og Kreditkasse Asa 75,000,000
Den Norske Bank Asa 75,000,000
UniBank of Denmark A/S (Unibank A/S), Singapore Branch 75,000,000
Fuji Bank, Limited 75,000,000
The First National Bank of Chicago 55,000,000
Den Danske Bank Aktieselskab, Cayman Islands Branch 55,000,000
Midland Bank PLC 40,000,000
National Westminster Bank PLC 40,000,000
Fleet National Bank 40,000,000
The Royal Bank of Scotland PLC 40,000,000
Dresdner Bank AG, New York Branch 40,000,000
--------------
Total $2,000,000,000
</TABLE>
<PAGE> 105
SCHEDULE 2.05
INFORMATION CONCERNING TRANSACTIONS
FINANCED BY ACCEPTANCES
Cargo:
Approximate Quantity: Barrels
Country of Origin:
Destination of Cargo:
Loaded Date:
Vessel:
Approximate Value of Cargo:
<PAGE> 106
Schedule 8.02 - Existing Liens
The Company's subsidiary (Amerada Hess Limited) has a Capitalized Lease
Obligation of $75,000,000 (U.S. Dollar Equivalent of a Sterling obligation)
currently outstanding.
<PAGE> 107
Schedule 9.02 - Existing Liens of Unguaranteed Borrowers
Amerada Hess Limited has a Capitalized Lease Obligation of $75,000,000
(U.S. Dollar Equivalent of a Sterling obligation) currently outstanding.
<PAGE> 108
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of May __, 1997, among
Amerada Hess Corporation (the "Company"), Amerada Hess Limited, Amerada Hess
Norge A/S, Amerada Hess A/S, the other Subsidiary Borrowers parties thereto, the
several banks and other financial institutions from time to time parties thereto
(the "Lenders") and The Chase Manhattan Bank, as Administrative Agent (the
"Credit Agreement"). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest set forth on Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount and/or commitment amount for each Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers, any of their respective Subsidiaries, any
other obligor or the performance or observance by the Borrowers, any of their
respective Subsidiaries, any other obligor of any of their respective
obligations under the Credit Agreement or any document executed in connection
therewith or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches any Notes held by it evidencing the Assigned
Facilities and (i) requests that the Administrative Agent, upon request by the
Assignee, exchange any attached Notes for a new Note or Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in the Assigned
Facility, requests that the Administrative Agent exchange any attached Notes for
a new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
<PAGE> 109
2
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Sections 6.01 and 7.01 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; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section 2.16
of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the date
set forth on Schedule 1 hereto (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the Administrative
Agent for acceptance by them and recording by the Administrative Agent pursuant
to the Credit Agreement, effective as of the Effective Date (which shall not,
unless otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) 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 under the
other documents executed in connection therewith and shall be bound by the
provisions thereof and (b) 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.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 110
3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE> 111
SCHEDULE 1
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal/Commitment Commitment Percentage
Facility Assigned Amount Assigned Assigned(1)
----------------- -------------------- ---------------------
$ . %
------ -- -----
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
--------------------------- ---------------------------
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, AMERADA HESS CORPORATION(2)
as Administrative Agent
By: By:
--------------------------- ---------------------------
Title: Title:
- ----------
(1) CALCULATE THE COMMITMENT PERCENTAGE THAT IS ASSIGNED TO AT LEAST 15
DECIMAL PLACES AND SHOW AS A PERCENTAGE OF THE AGGREGATE COMMITMENTS OF
ALL LENDERS.
(2) THE COMPANY'S CONSENT IS REQUIRED IN THE EVENT THAT THE ASSIGNEE IS NOT A
LENDER OR AN AFFILIATE OF A LENDER PRIOR TO EFFECTIVENESS HEREOF.
<PAGE> 112
EXHIBIT B
FORM OF DRAFT
BANKERS' ACCEPTANCE No.______________
To____________________________ Due__________________ ________________ 19__
Bank
______________________________ __________ days after the date (without grace)
Address
For value received pay to the order of the
ACCEPTED undersigned drawer the
______________________________ sum of $_____________________________________
Payable at
______________________________ _________________DOLLARS
______________________________
FOR___________________________ Value Received, and Charge to the Account of:
______________________________
Authorized Signature Per:___________________________________
______________________________
Authorized Signature Per:___________________________________
Form 8411 (7-88)
<PAGE> 113
2
________________________________________________________________________________
Per:____________________________________________________________________________
Per:_____________
<PAGE> 114
EXHIBIT C-1
FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY
The Chase Manhattan Bank, as [Effective Date]
Administrative Agent
270 Park Avenue
New York, New York 10017
The Lenders named in Schedule I to the
Credit Agreement referred to below
Ladies and Gentlemen:
I am the general counsel to Amerada Hess Corporation, a Delaware
corporation (the "Company"), and have acted in connection with the preparation,
execution and delivery of the Credit Agreement, dated as of May __, 1997 (the
"Credit Agreement"), among Amerada Hess Corporation (the "Company"), Amerada
Hess Limited, Amerada Hess Norge A/S, Amerada Hess A/S, the other Subsidiary
Borrowers parties thereto, the several banks and other financial institutions
from time to time parties thereto (the "Lenders") and The Chase Manhattan Bank,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
The opinions expressed below are furnished to you pursuant to Section
5.01(b)(i) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
In arriving at the opinions expressed below, I have examined the following
documents:
(a) the Credit Agreement and the Notes signed by the Company (the Credit
Agreement and such Notes being hereinafter referred to collectively as the
"Transaction Documents"); and
(b) such corporate documents and records of the Company and such other
instruments and certificates of public officials, officers and representatives
of the Company and other Persons as I have deemed necessary or appropriate for
the purposes of this opinion.
In arriving at the opinions expressed below, I have made such
investigations of law as I have deemed appropriate as a basis for such opinions.
In rendering the opinions expressed below, I have (a) relied as to certain
matters of fact on certificates of the officers of the Company and (b) assumed,
with your permission, without independent investigation or inquiry, (i) the
authenticity of all documents submitted as originals,
<PAGE> 115
2
(ii) the genuineness of all signatures on all documents that I have examined
(other than those of the Company and officers of the Company) and (c) the
conformity to authentic originals of documents submitted as certified, conformed
or photostatic copies.
When the opinions expressed below are stated "to the best of my
knowledge," I have made reasonable and diligent investigation of the subject
matters of such opinions and have no reason to believe that there exist any
facts or other information that would render such opinions incomplete or
incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation.
2. The Company has the corporate power and authority to own, lease and
operate its properties and to conduct the business in which it is currently
engaged and is duly qualified to transact business as a foreign corporation or
other legal entity and is in good standing or appropriately qualified in each
jurisdiction where its ownership, leasing, or operation of property or the
conduct of its business requires such qualification, except to the extent that
the failure to have such power and authority and the failure to be so qualified
and in good standing does not, in the aggregate, constitute a Material Adverse
Effect.
3. The Company has the corporate power and authority to make, deliver and
perform its obligations under each Transaction Document and to borrow under the
Credit Agreement. The Company has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of the Credit Agreement and
the other Transaction Documents, and to authorize the execution, delivery and
performance of the Credit Agreement and each other Transaction Document. No
consent or authorization of, notice to, filing with or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with (i) the borrowings by the Company under the Credit Agreement or
(ii) the execution, delivery and performance by the Company, or the validity or
enforceability against the Company, of each Transaction Document.
4. Each Transaction Document has been duly executed and delivered on
behalf of the Company. Each Transaction Document constitutes a legal, valid and
binding obligation of each of the Borrowers, enforceable against each of them in
accordance with its terms.
5. The execution and delivery of each Transaction Document by the Company,
the performance by the Company of its obligations thereunder, the consummation
of the transactions contemplated thereby, the compliance by the Company with any
of the provisions thereof, the borrowings by the Company under the Credit
Agreement and the use of proceeds thereof, all as provided therein, (a) will not
violate (i) any requirement of law or any regulation or order of any
Governmental Authority applicable to the Company or (ii) any Contractual
Obligation of the Company or any of its Subsidiaries, and (b) will not result
in, or require, the creation or
<PAGE> 116
3
imposition of any Lien on any of its or their respective assets or properties
pursuant to any such requirement of law (or regulation or order) or Contractual
Obligation.
6. No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best of my knowledge, threatened
by or against the Company or any of its Subsidiaries or against any of its or
their respective properties or revenues (a) with respect to the Credit Agreement
or any of the other Transaction Documents or (b) which would constitute a
Material Adverse Effect.
7. To the best of my knowledge, neither the Company nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligations
in any respect which would constitute a Material Adverse Effect.
8. The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended. The Company is not subject to regulation under any Federal or
state statute or regulation which limits its ability to incur Indebtedness.
The opinions set forth in the second sentence of paragraph 4 above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law), including, without limitation, concepts of
materiality and reasonableness and an implied covenant of good faith and fair
dealing.
I am a member of the bar of the State of New York and the opinions
expressed herein are based upon and are limited to the laws of such state, the
General Corporate Law of the State of Delaware and the Federal laws of the
United States of America.
This opinion has been rendered solely for your benefit and for the benefit
of your permitted assignees pursuant to Section 13.04 of the Credit Agreement in
connection with the Credit Agreement and the other Transaction Documents and the
transactions contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any other purpose without my prior
written consent; provided, however, that this opinion may be delivered to your
regulators, accountants, attorneys and other professional advisers and may be
used in connection with any legal or regulatory proceeding relating to the
subject matter of this opinion.
Very truly yours,
[Name of General Counsel]
<PAGE> 117
EXHIBIT C-2
MATTERS TO BE COVERED BY
OPINIONS RELATING TO THE
SUBSIDIARY BORROWERS
1. The Subsidiary Borrower is duly organized, validly existing and in good
standing under the laws of __________________ [specify the jurisdiction of its
organization] (the "Jurisdiction").
2. The Subsidiary Borrower has the power and authority, and the legal
right, to make, deliver and perform its obligations under the Credit
Agreement(3) and the Notes to which it is a signatory (the Credit Agreement and
such Notes, collectively, the "Transaction Documents") and to borrow thereunder.
The Subsidiary Borrower has taken all necessary corporate action to authorize
the performance of its obligations as a "Subsidiary Borrower" under the
Transaction Documents and to authorize the execution, delivery and performance
of the Transaction Documents.
3. Except for consents, authorizations, approvals, notices and filings
described on an attached schedule, all of which have been obtained, made or
waived and are in full force and effect, no consent or authorization of,
approval by, notice to, filing with or other act by or in respect of, any
Governmental Authority is required in connection with the borrowings by the
Subsidiary Borrower under the Transaction Documents or with the execution,
delivery, performance, validity or enforceability of the Transaction Documents.
4. Each of the Transaction Documents has been duly executed and delivered
on behalf of the Subsidiary Borrower.
5. The execution and delivery of the Transaction Documents by the
Subsidiary Borrower, the performance of its obligations thereunder, the
consummation of the transactions contemplated thereby, the compliance by the
Subsidiary Borrower with any of the provisions thereof, the borrowings under the
Transaction Documents and the use of proceeds thereof, all as provided therein,
(a) will not violate, or constitute a default under, any requirement of law or
any regulation or order of any Governmental Authority or any Contractual
Obligation applicable to the Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such requirement of law (or regulation or order) or
Contractual Obligation.
6. No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or threatened by or against the Subsidiary
Borrower or
- ----------
(1). When the subsidiary borrower becomes a party to the credit agreement by
virtue of a joinder agreement, references herein to the credit agreement
should include such joinder agreement.
<PAGE> 118
2
against any of its properties or revenues (a) with respect to the Transaction
Documents, or (b) which would constitute a Material Adverse Effect.
7. To the best of our knowledge, the Subsidiary Borrower is not in default
under or with respect to any Contractual Obligation in any respect which would
constitute a Material Adverse Effect.
8. There are no taxes imposed by the Jurisdiction (a) on or by virtue of
the execution, delivery, enforcement or performance of any of the Transaction
Documents or (b) on any payment to be made by the Subsidiary Borrower pursuant
to any of the Transaction Documents, other than any Indemnified Taxes or Other
Taxes payable by the Subsidiary Borrower as provided in Section 2.16 of the
Credit Agreement.
9. To ensure the legality, validity, enforceability or admissibility in
evidence of the Transaction Documents, it is not necessary that any of the
Transaction Documents or any other document be filed, registered or recorded
with, or executed or notarized before, any court of other authority of the
Jurisdiction or that any registration charge or stamp or similar tax be paid on
or in respect of any of the Transaction Documents.
10. Each of the Transaction Documents is in proper legal form under the
laws of the Jurisdiction for the enforcement thereof against the Subsidiary
Borrower under the laws of the Jurisdiction.
11. In any action or proceeding arising out of or relating to any of the
Transaction Documents in any court in the Jurisdiction, such court would
recognize and give effect to the choice of law provisions in the Transaction
Documents wherein the parties thereto agree that the Transaction Documents shall
be governed by, and construed and interpreted in accordance with, the laws of
the State of New York.
12. It is not necessary under the laws of the Jurisdiction (a) in order to
enable the Administrative Agent and the Lenders or any of them to enforce their
respective rights under the Transaction Documents or (b) by reason of the
execution of the Transaction Documents or the performance of the Transaction
Documents that any of them should be licensed, qualified or entitled to carry on
business in the Jurisdiction.
13. Neither the Administrative Agent nor any of the Lenders will be deemed
to be resident, domiciled, carrying on business or subject to taxation in the
Jurisdiction merely by reason of the execution of the Transaction Documents or
the performance or enforcement of any thereof. The performance by the
Administrative Agent and the Lenders or any of them of any action required or
permitted under the Transaction Documents will not violate any law or
regulation, or be contrary to the public policy, of the Jurisdiction.
14. If any judgment of a competent court outside the Jurisdiction were
rendered against the Subsidiary Borrower in connection with any action arising
out of or relating to any of the Transaction Documents, such judgment would be
recognized and could be sued upon in the
<PAGE> 119
3
courts of the Jurisdiction, and such courts would grant a judgment which would
be enforceable against the Subsidiary Borrower in the Jurisdiction without any
retrial unless it is shown that (a) the foreign court did not have jurisdiction
in accordance with its jurisdictional rules, (b) the party against whom the
judgment of such foreign court was obtained had no notice of the proceedings or
(iii) the judgment of such foreign court was obtained through collusion or fraud
or was based upon clear mistake of fact or law.
<PAGE> 120
EXHIBIT D
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of ________________, 199__, made by
________________, a _____________ [corporation] (the "Subsidiary Borrower")
pursuant to the Credit Agreement, dated as of [ ] __, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Amerada Hess Corporation (the "Company"), Amerada Hess Limited, Amerada
Hess Norge A/S, Amerada Hess A/S, the other Subsidiary Borrowers from time to
time parties thereto (the "Subsidiary Borrowers"; collectively with the Company,
the "Borrowers"), the financial institutions from time to time parties thereto
(each, a "Lender") and The Chase Manhattan Bank, as administrative agent (in
such capacity, the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
For good and valid consideration, the sufficiency of which hereby is
acknowledged, the Subsidiary Borrower hereby agrees as follows:
(a) It shall be [a Guaranteed Borrower/an Unguaranteed Borrower](1) for
all purposes under the Credit Agreement and the documents executed
in connection therewith, and, as such, shall be deemed to be a
Subsidiary Borrower for such purposes;
[(b) The Designated Maximum with respect to the Subsidiary Borrower is
$____________.]
([b/c]) It shall (i) be bound by all covenants, agreements, acknowledgements
and other terms and provisions applicable to it, as [a Guaranteed
Borrower/an Unguaranteed Borrower] and a Subsidiary Borrower
pursuant to the Credit Agreement and the documents executed in
connection therewith to the same extent, and in the same manner, as
if it (in its capacity as [a Guaranteed Borrower/an Unguaranteed
Borrower] and a Subsidiary Borrower) were a direct party thereto and
(ii) perform all obligations required of it pursuant to the Credit
Agreement and such other documents.
The Subsidiary Borrower hereby acknowledges that it has received and
reviewed a copy (in execution form) of the Credit Agreement (including, without
limitation, all amendments, supplements and other modifications thereto) and
each of the documents referred to therein (including, without limitation, all
amendments, supplements and other modifications thereto).
- ----------
(1) The consent of all the Lenders is required for the addition of an
Unguaranteed Borrower, including the consent to the Designated Maximum
with respect thereto.
<PAGE> 121
2
The Subsidiary Borrower hereby represents and warrants that (a) all
representations and warranties contained in the Credit Agreement and such other
documents which are applicable to it (after giving effect to this Joinder
Agreement) are true and correct in all material respects and (b) immediately
prior to and immediately after the effectiveness of this Joinder Agreement, no
Default or Event of Default shall have occurred and be continuing.
[The Company hereby agrees that its guarantees contained in Section 11 of
the Credit Agreement shall remain in full force and effect after giving effect
to this Joinder Agreement.]
This Joinder Agreement shall become effective upon the satisfaction of
each of the conditions specified in subsection 13.02(c)(i) of the Credit
Agreement and the delivery of the documents specified therein.
The address and jurisdiction of incorporation of the Subsidiary Borrower
is set forth in Annex I to this Joinder Agreement.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to
be duly executed and delivered in [New York, New York, United States of America]
by its proper and duly authorized officer as of the date first written above.
[NAME OF SUBSIDIARY Borrower]
By:________________________________
Title:
AMERADA HESS CORPORATION
By:________________________________
Title:
ACKNOWLEDGED AND AGREED TO;
THE CHASE MANHATTAN BANK, as Administrative Agent
By:________________________________
Title:
<PAGE> 122
Annex I
Administrative Information for Subsidiary Borrower
<PAGE> 123
EXHIBIT E
FORM OF COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement dated
as of ________ __, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among Amerada Hess Corporation (the
"Company"), Amerada Hess Limited, Amerada Hess Norge A/S, Amerada Hess A/S, the
other Subsidiary Borrowers from time to time parties thereto, the banks and
other financial institutions from time to time parties thereto (the "Lenders")
and The Chase Manhattan Bank, as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the provisions of Section [2.08(g)/2.20(c)] of
the Credit Agreement, the undersigned may increase the amount of its Commitment
in accordance with the terms thereof by executing and delivering to the Company
and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of
its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of
the Credit Agreement, that on the date this Supplement is accepted by the
Company and the Administrative Agent it shall have its Commitment
increased by $______________, thereby making the amount of its Commitment
$______________.
2. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
<PAGE> 124
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By________________________________
Title:
Accepted this _____ day of
______________, ____.
AMERADA HESS CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, ____.
THE CHASE MANHATTAN BANK, as Administrative Agent
By____________________________
Title:
<PAGE> 125
EXHIBIT F
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement dated
as of ________ __, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") among Amerada Hess Corporation (the
"Company"), Amerada Hess Limited, Amerada Hess Norge A/S, Amerada Hess A/S, the
other Subsidiary Borrowers from time to time parties thereto, the banks and
other financial institutions from time to time parties thereto (the "Lenders")
and The Chase Manhattan Bank, as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section [2.08(f)/2.20(b)]
thereof that any bank, financial institution or other entity, although not
originally a party thereto, may become a party to the Credit Agreement in
accordance with the terms thereof by executing and delivering to the Company and
the Administrative Agent a supplement to the Credit Agreement in substantially
the form of this Supplement; and
WHEREAS, the undersigned was not an original party to the Credit
Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement is
accepted by the Company and the Administrative Agent, become a Lender for
all purposes of the Credit Agreement to the same extent as if originally a
Lender party thereto, with a Commitment of
$__________________.
2. The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Sections 3.04 and 4.04 thereof
and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Supplement;
(c) agrees that it has made and will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement or any instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative
Agent to take such action as administrative agent on its behalf and to
exercise such powers and discretion under the Credit Agreement or any
instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative
<PAGE> 126
2
Agent by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, without limitation, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to Section 2.16 of the Credit Agreement.
3. The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
4. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By________________________________
Title:
Accepted this _____ day of
______________, ____.
AMERADA HESS CORPORATION
By____________________________
Title:
Accepted this ____ day of
______________, ____.
THE CHASE MANHATTAN BANK, as Administrative Agent
By____________________________
Title:
<PAGE> 127
EXHIBIT G
[NAME OF ACCEPTANCE LENDER]
POWER OF ATTORNEY
The undersigned hereby appoints [NAME OF ACCEPTANCE LENDER] (hereinafter
called the "Acceptance Lender"), acting by any authorized signatory of the
Acceptance Lender, the attorney of the undersigned:
(a) to sign for and on behalf and in the name of the undersigned as drawer,
Drafts (as defined in the Credit Agreement referred to below) drawn on
the Acceptance Lender payable to the order of the undersigned or payable
to the order of the Acceptance Lender;
(b) to fill in the amount, date and maturity date of such Drafts; and
(c) to discount and/or deliver such Drafts which have been accepted by the
Acceptance Lender,
provided that such acts in each case are to be undertaken by the Acceptance
Lender strictly in accordance with instructions given to the Acceptance Lender
by the undersigned as provided in this power of attorney.
Instructions from the undersigned to the Acceptance Lender relating to the
execution, completion, endorsement, discount and/or delivery by the Acceptance
Lender on behalf of the undersigned of Drafts which the undersigned wishes to
submit to the Acceptance Lender for acceptance by the Acceptance Lender shall be
communicated by the undersigned in writing to the Administrative Agent pursuant
to Acceptance Bid Requests (as those terms are defined in the Credit Agreement,
dated as of May __, 1997, among Amerada Hess Corporation, Amerada Hess Limited,
Amerada Hess Norge A/S, Amerada Hess A/S, the other Subsidiary Borrowers parties
thereto, the several banks and other financial institutions from time to time
parties thereto and The Chase Manhattan Bank, as Administrative Agent, to which
the undersigned and the Acceptance Lender are parties (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement")) and shall
specify the following information:
(a) reference to this power of attorney;
(b) a dollar amount, which shall be the aggregate face amount of the Drafts
to be drawn in a particular transaction;
(c) a specified period of time (not less than 30 days or in excess of 180
days) which shall be the number of days after the date of such Drafts
that such Drafts are to be payable, and the dates of issuance and
maturity of such Drafts; and
<PAGE> 128
2
(d) discount/payment instructions specifying the account number of the
undersigned and the financial institution at which the proceeds of the
discount of such Drafts are to be credited;
all as set out in the Acceptance Bid Request (as that term is defined in the
Credit Agreement).
The communication in writing by the undersigned, or on behalf of the
undersigned by the Administrative Agent, to the Acceptance Lender of the
instructions set out in the Acceptance Bid Request referred to above shall
constitute (a) the authorization and instruction of the undersigned to the
Acceptance Lender to complete and/or endorse Drafts in accordance with such
information as set out above and (b) the request of the undersigned to the
Acceptance Lender to accept such Drafts and discount the same. The undersigned
acknowledges that the Acceptance Lender shall not be obligated to accept any
such Drafts except in accordance with the provisions of the Credit Agreement.
The Acceptance Lender shall be and it is hereby authorized to act on
behalf of the undersigned upon and in compliance with instructions communicated
to the Acceptance Lender as provided herein if the Acceptance Lender reasonably
believes them to be genuine. If the Acceptance Lender accepts Drafts pursuant to
any such instructions, the Acceptance Lender shall confirm particulars of such
instructions and advise the undersigned that the Acceptance Lender has complied
therewith by notice in writing addressed to the undersigned and served
personally or sent by prepaid registered mail or by telecopier in accordance
with the provisions of the Credit Agreement. The Acceptance Lender's actions in
compliance with such instructions, confirmed and advised to the undersigned by
such notice, shall be conclusively deemed to have been in accordance with the
instructions of the undersigned unless the undersigned notifies the
Administrative Agent to the contrary in writing not later than the business day
next following receipt by the undersigned. Notice in writing to the
Administrative Agent as contemplated hereby shall be delivered in accordance
with the provisions of the Credit Agreement.
The undersigned hereby agrees and promises to pay the Administrative Agent
for the account of the Acceptance Lender, on the maturity date thereof, the face
amount of each draft signed, completed and endorsed as contemplated herein and
accepted by the Acceptance Lender, such payment to be made in accordance with
and subject to the terms of the Credit Agreement.
The undersigned agrees to indemnify the Acceptance Lender and its
directors, officers, employees, affiliates and agents and to hold it and them
harmless from and against any loss, liability, expense or claim of any kind or
nature whatsoever incurred by any of them as a result of any action or inaction
in any way relating to or arising out of this power of attorney or the acts
contemplated hereby; provided that this indemnity shall not apply to any such
loss, liability, expense or claim which results from the gross negligence or
willful misconduct of the Acceptance Lender or any of its directors, officers,
employees, affiliates or agents.
This power of attorney may be revoked at any time upon not less than 5
business days' written notice served upon the Administrative Agent, provided
that no such revocation shall
<PAGE> 129
3
reduce, limit or otherwise affect the obligations of the undersigned in respect
of any Draft executed, completed, endorsed, discounted and/or delivered in
accordance herewith prior to the time at which such revocation becomes
effective.
This power of attorney is in addition to and not in substitution of any
agreement to which the Acceptance Lender and the undersigned are parties.
THIS POWER OF ATTORNEY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
In the event of a conflict between the provisions of this Power of
Attorney and the Credit Agreement, the Credit Agreement shall prevail.
<PAGE> 130
4
IN WITNESS WHEREOF, the undersigned has caused this power of attorney to
be duly executed and delivered in [New York, New York, United States of America]
by its proper and duly authorized officer as of the date written below.
DATED at _______________ this ___ day of
______________, _______.
[NAME OF BORROWER]
By:______________________________
Name:
Title:
<PAGE> 131
EXHIBIT H
FORM OF NON-NEGOTIABLE
ACCEPTANCE NOTE
$______________ New York, New York
_______________, 199__
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [__________]
corporation (the "Borrower"), hereby unconditionally promises to pay to the
order of ________________ (the "Lender") in the manner and at the office of The
Chase Manhattan Bank set forth in Section 2.17 of the Credit Agreement referred
to below in immediately available funds, the principal sum of ____ [Specify
currency] (_________). The undiscounted principal amount hereof shall be repaid
on ______________, ____(1). The Borrower further agrees that interest shall be
paid herein, in advance, by the Lender discounting the face amount of this Note
in the manner described in Sections 2.05 of the Credit Agreement. This Note may
not be prepaid.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of May __, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, Amerada Hess
Corporation, Amerada Hess Limited, Amerada Hess Norge A/S, Amerada Hess A/S, the
other Subsidiary Borrowers from time to time parties thereto, the Lender, the
other banks and financial institutions from time to time parties thereto and The
Chase Manhattan Bank, as Administrative Agent (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement.
[This Note is guaranteed as provided in the Credit Agreement. Reference is
hereby made to the Credit Agreement for a description of the nature and extent
of the guarantee, the terms and conditions upon which such guarantee was granted
and the rights of the holder of this Note in respect thereof.]
Upon the occurrence of any one or more Events of Default specified in the
Credit Agreement, all amounts then remaining unpaid on this Note shall become,
or may be declared to be, immediately due and payable, all as provided in the
Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
- ----------
(1). INSERT MATURITY DATE FOR ACCEPTANCES CREATED SIMULTANEOUSLY HEREWITH.
<PAGE> 132
2
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[NAME OF BORROWER]
By:
Title:
<PAGE> 133
EXHIBIT H
FORM OF NON-NEGOTIABLE
REVOLVING LOAN NOTE
U.S.$____________ New York, New York
___________, 1997
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
[_________] corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of __________ (the "Lender") on the dates and in the manner set
forth in Sections 2.09 and 2.17 of the Credit Agreement referred to below at the
office of The Chase Manhattan Bank set forth in Section 2.17 of the Credit
Agreement in immediately available funds, on the Maturity Date (as defined in
the Credit Agreement) the principal amount of (a) __________ U.S. DOLLARS
(U.S.$_________), or (b) the aggregate unpaid principal amount of all Revolving
Loans made by the Lender to the Borrower pursuant to subsection 2.03 of such
Credit Agreement. The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in Section 2.12 of such Credit
Agreement.
The holder of this Note is authorized to record on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type, currency and amount of
each Revolving Loan made by the Lender pursuant to such Credit Agreement and the
date and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurocurrency Loans, the length of each Interest Period
and the applicable Adjusted LIBO Rate with respect thereto. Each such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded, provided that the failure to make any such recordation
or any error in any such recordation shall not affect the obligations of the
Borrower under such Credit Agreement or this Note.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of May __, 1997 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, Amerada
Hess Corporation, Amerada Hess Limited, Amerada Hess Norge A/S, Amerada Hess
A/S, the other Subsidiary Borrowers from time to time parties thereto, the
Lender, the other banks and financial institutions from time to time parties
thereto and The Chase Manhattan Bank, as Administrative Agent (b) is subject to
the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
[This Note is guaranteed as provided in the Credit Agreement.
Reference is hereby made to the Credit Agreement for a description of the nature
and extent of the guarantee,
<PAGE> 134
2
the terms and conditions upon which such guarantee was granted and the rights of
the holder of this Note in respect thereof.]
Upon the occurrence of any one or more Events of Default specified
in the Credit Agreement, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[NAME OF BORROWER]
By:
Title:
<PAGE> 135
Schedule A
to Revolving Loan Note
ABR LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Amount Amount of ABR
Converted to Amount of Loans Converted to Unpaid Principal
Date Amount of ABR ABR Loans Principal of ABR Eurocurrency Balance of ABR Notation
Loans Loans Repaid Loans Loans Made By
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
================================================================================================================
</TABLE>
<PAGE> 136
2
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Amount Amount of ABR
Converted to Amount of Loans Converted to Unpaid Principal
Date Amount of ABR ABR Loans Principal of ABR Eurocurrency Balance of ABR Notation
Loans Loans Repaid Loans Loans Made By
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
================================================================================================================
</TABLE>
<PAGE> 137
Schedule B
to Revolving Loan Note
EUROCURRENCY LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF
EUROCURRENCY LOANS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Interest Period Amount of Amount of Unpaid Principal
Amount of Amount and Principal of Eurocurrency Balance of Notation
Date Eurocurrency Converted to Eurocurrency Eurocurrency Loans Eurocurrency Made By
Loans Eurocurrency Rate with Loans Repaid Converted to Loans
Loans Respect Thereto ABR Loans
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
===============================================================================================================
</TABLE>
<PAGE> 138
4
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Interest Period Amount of Amount of Unpaid Principal
Amount of Amount and Principal of Eurocurrency Balance of Notation
Date Eurocurrency Converted to Eurocurrency Eurocurrency Loans Eurocurrency Made By
Loans Eurocurrency Rate with Loans Repaid Converted to Loans
Loans Respect Thereto ABR Loans
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
===============================================================================================================
</TABLE>
<PAGE> 139
EXHIBIT H
FORM OF NON-NEGOTIABLE
COMPETITIVE LOAN NOTE
$______________ New York, New York
_______________, 199__
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a [____________]
corporation (the "Borrower"), hereby unconditionally promises to pay on ______ ,
19__ to the order of _________________________________________________________
(the "Lender") in the manner and at the office of The Chase Manhattan Bank set
forth in Section 2.17 of the Credit Agreement referred to below in immediately
available funds, the principal sum of _________________ [Specify currency]
(___________). The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 2.12 of such Credit Agreement.
This Note may not be prepaid.
The holder of this Note is authorized to record on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type, currency and amount of
each Competitive Loan made by the Lender pursuant to such Credit Agreement and
the date and amount of each payment or prepayment of principal thereof and, in
the case of Eurocurrency Loans, the length of each Interest Period and the
applicable Adjusted LIBO Rate with respect thereto. Each such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided that the failure to make any such recordation or any error in any such
recordation shall not affect the obligations of the Borrower under such Credit
Agreement or this Note.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of May __, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, Amerada Hess
Corporation, Amerada Hess Limited, Amerada Hess Norge A/S, Amerada Hess A/S, the
other Subsidiary Borrowers from time to time parties thereto, the Lender, the
other banks and financial institutions from time to time parties thereto and The
Chase Manhattan Bank, as Administrative Agent (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement.
[This Note is guaranteed as provided in the Credit Agreement. Reference is
hereby made to the Credit Agreement for a description of the nature and extent
of the guarantee, the terms and conditions upon which such guarantee was granted
and the rights of the holder of this Note in respect thereof.]
Upon the occurrence of any one or more Events of Default specified in the
Credit Agreement, all amounts then remaining unpaid on this Note shall become,
or may be declared to be, immediately due and payable, all as provided in the
Credit Agreement.
<PAGE> 140
2
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[NAME OF BORROWER]
By:
Title:
<PAGE> 141
Schedule A
to Competitive Loan Note
ABR LOANS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Amount of Unpaid Principal
Date Amount of ABR Principal of ABR Balance of ABR Notation
Loans Loans Repaid Loans Made By
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
<PAGE> 142
2
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Amount of Unpaid Principal
Date Amount of ABR Principal of ABR Balance of ABR Notation
Loans Loans Repaid Loans Made By
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
<PAGE> 143
Schedule B
to Competitive Loan Note
EUROCURRENCY LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF
EUROCURRENCY LOANS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Interest Period Amount of Unpaid Principal
Amount of and Principal of Balance of Notation
Date Eurocurrency Eurocurrency Eurocurrency Eurocurrency Made By
Loans Rate with Loans Repaid Loans
Respect Thereto
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 144
4
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Interest Period Amount of Unpaid Principal
Amount of and Principal of Balance of Notation
Date Eurocurrency Eurocurrency Eurocurrency Eurocurrency Made By
Loans Rate with Loans Repaid Loans
Respect Thereto
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 186,957
<SECURITIES> 0
<RECEIVABLES> 520,339
<ALLOWANCES> 0
<INVENTORY> 993,253
<CURRENT-ASSETS> 1,841,999
<PP&E> 12,090,972
<DEPRECIATION> 7,114,764
<TOTAL-ASSETS> 7,347,805
<CURRENT-LIABILITIES> 1,572,379
<BONDS> 1,493,771
0
0
<COMMON> 91,739
<OTHER-SE> 3,214,263
<TOTAL-LIABILITY-AND-EQUITY> 7,347,805
<SALES> 4,230,790
<TOTAL-REVENUES> 4,294,922
<CGS> 3,231,487
<TOTAL-COSTS> 3,231,487
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 67,407
<INCOME-PRETAX> 190,999
<INCOME-TAX> 144,754
<INCOME-CONTINUING> 46,245
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 46,245
<EPS-PRIMARY> .50
<EPS-DILUTED> .50
</TABLE>
