<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1994
REGISTRATION NO.
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ANADARKO PETROLEUM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 76-0146568
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
17001 NORTHCHASE DRIVE, HOUSTON, TEXAS 77060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
---------------
1993 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
---------------
SUZANNE SUTER
17001 NORTHCHASE DRIVE
HOUSTON, TEXAS 77060
(NAME AND ADDRESS OF AGENT FOR SERVICE)
---------------
(713) 875-1101
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed
Proposed maximum
Title of maximum aggregate
securities to Amount to be offering price offering Amount of
be registered registered per share(*) price(*) registration fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.10 par value,
and Rights attached thereto 4,000,000 shares $52.4375 $209,750,000 $72,328
=======================================================================================================================
</TABLE>
(*) Estimated solely for the purpose of determining the registration fee
in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended, based on the average of the high and low prices of
the Common Stock as reported on The New York Stock Exchange, Inc.
Composite Transactions Reporting system on July 1, 1994.
================================================================================
<PAGE> 2
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Anadarko Petroleum Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (File No. 1-8968) are incorporated herein by reference: (a) Form 8-A,
filed on September 4, 1986, for registration of Common Stock, (b) Form 8-A,
filed on October 5, 1988, for registration of Series A Preferred Stock Purchase
Rights, (c) Annual Report on Form 10-K for the fiscal year ended December 31,
1993 (the "Form 10-K"), which contains the consolidated financial statements of
the Company and its subsidiaries, (d) Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1994, and (e) Form 10-K/A, dated June 28, 1994,
which contains the Annual Report of the Anadarko Employee Savings Plan on Form
11-K. All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the termination of the offering of the
Securities shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
The consolidated financial statements and schedules of the Company and
subsidiaries as of December 31, 1993 and 1992 and for each of the years in the
three-year period ended December 31, 1993 incorporated by reference in the
Registration Statement have been incorporated herein in reliance upon the
report of KPMG Peat Marwick, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for
indemnification of officers and directors under certain conditions.
<PAGE> 3
Article IX of the By-Laws of the Company provides for indemnification
of officers and directors to the fullest extent which may be provided by a
by-law under applicable law.
The Company maintains insurance for officers and directors of the
Registrant against certain liabilities, including liabilities under the
Securities Act of 1933, under insurance policies, the premiums of which are
paid by the Company. The effect of these is to indemnify any officer or
director of the Registrant against expenses, judgments, attorney's fees and
other amounts paid in settlements incurred by an officer or director upon a
determination that such person acted in good faith.
ITEM 8. EXHIBITS.
Exhibits not incorporated by reference to a prior filing are
designated by an asterisk (*) and are filed herewith; all exhibits not so
designated are incorporated by reference to a prior filing as indicated.
*4.1 Revolving Credit Agreement, Dated as of May 24, 1994
*4.2 364-Day Credit Agreement, Dated as of May 24, 1994
*5 Opinion of Counsel to the Company.
*23 Consent of KPMG Peat Marwick, Independent Certified Public
Accountants.
*24 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement; and
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement
<PAGE> 4
or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to any charter
provision, by-law, contract, arrangement, statute, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
against the registrant by such director, officer or controlling person
in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a
<PAGE> 5
court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Houston, State of Texas, on the 8th day of July,
1994.
ANADARKO PETROLEUM CORPORATION
By /s/ ROBERT J. ALLISON, JR.
Robert J. Allison, Jr.
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on July 8, 1994:
Signature Title
--------- -----
(i) Principal executive officer:*
/s/ ROBERT J. ALLISON, JR. Chairman of the Board,
Robert J. Allison, Jr. President and Chief
Executive Officer
(ii) Principal financial officer:*
/s/ MICHAEL E. ROSE Senior Vice President,
Michael E. Rose Finance and Chief
Financial Officer
(iii) Principal accounting officer:*
/s/ JAMES R. LARSON Controller
James R. Larson
<PAGE> 6
(iv) Directors:*
/s/ ROBERT J. ALLISON, JR.
Robert J. Allison, Jr.
/s/ LARRY BARCUS
Larry Barcus
/s/ RONALD BROWN
Ronald Brown
/s/ JAMES L. BRYAN
James L. Bryan
/s/ JOHN R. GORDON
John R. Gordon
/s/ CONRAD P. ALBERT
Conrad P. Albert
*Signed on behalf of the registrant and each of these persons:
By /s/ SUZANNE SUTER
(Suzanne Suter, Attorney-in-Fact)
<PAGE> 7
INDEX TO EXHIBITS.
Exhibits not incorporated by reference to a prior filing are
designated by an asterisk (*) and are filed herewith; all exhibits not so
designated are incorporated by reference to a prior filing as indicated.
*4.1 Revolving Credit Agreement, Dated as of May 24, 1994
*4.2 364-Day Credit Agreement, Dated as of May 24, 1994
*5 Opinion of Counsel to the Company.
*23 Consent of KPMG Peat Marwick, Independent Certified Public
Accountants.
*24 Powers of Attorney.
<PAGE> 1
[CONFORMED COPY]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ANADARKO PETROLEUM CORPORATION
---------------------
REVOLVING CREDIT AGREEMENT
---------------------
DATED AS OF MAY 24, 1994
---------------------
$250,000,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Defined Terms............................................................ 1
1.02 Use of Defined Terms..................................................... 6
1.03 Accounting Terms......................................................... 6
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.01 Loans.................................................................... 6
2.02 Notes.................................................................... 7
2.03 Procedure for Borrowing.................................................. 7
2.04 Commitment Fees.......................................................... 7
2.05 Reduction or Termination of Commitments.................................. 8
2.06 Optional Prepayments..................................................... 8
2.07 Mandatory Prepayments.................................................... 8
2.08 Repayment of Loans....................................................... 9
2.09 Interest Rate............................................................ 9
2.10 Computation of Interest and Fees......................................... 9
2.11 Pro Rata Treatment and Payments.......................................... 9
2.12 Increased Cost of Loans.................................................. 10
2.13 Illegality............................................................... 11
2.14 Withholding Tax Exemption................................................ 12
2.15 Substitute Loan Basis.................................................... 12
2.16 Determination of Borrowing Base.......................................... 13
2.17 Certain Prepayments or Conversions Pursuant to Sections 2.12 and 2.13.... 14
2.18. Certain Notices.......................................................... 14
2.19. Use of Proceeds.......................................................... 14
2.20. Indemnity................................................................ 14
2.21 Minimum Amounts of Tranches.............................................. 14
2.22 Conversion and Continuation Options...................................... 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties by the Company............................ 15
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01 Covenants................................................................ 16
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01 Conditions Precedent to the Initial Loans................................ 18
5.02 Conditions Precedent to Loans............................................ 19
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default........................................................ 19
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
ARTICLE VII
THE AGENT AND THE DETERMINING BANKS
SECTION 7.01 Powers................................................................... 20
7.02 Agent's Reliance, Etc.................................................... 21
7.03 No Responsibility for Recitals, Etc...................................... 21
7.04 Right to Indemnity....................................................... 21
7.05 Action on Instructions of Banks.......................................... 21
7.06 Employment of Agents..................................................... 21
7.07 Reliance on Documents.................................................... 21
7.08 Rights as a Bank......................................................... 22
7.09 Non-Reliance on Agent or other Banks..................................... 22
7.10 Events of Default........................................................ 22
7.11 Successor Agent.......................................................... 22
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Modifications, Consents and Waivers...................................... 22
8.02 Confidentiality.......................................................... 23
8.03 Addresses for Notices.................................................... 23
8.04 Costs, Expenses and Taxes................................................ 23
8.05 Binding Effect and Assignment............................................ 23
8.06 Termination and Substitution of Bank..................................... 23
8.07 Governing Law............................................................ 24
8.08 Headings................................................................. 24
8.09 Execution in Counterparts................................................ 24
EXHIBIT A Form of Note............................................................. 26
</TABLE>
ii
<PAGE> 4
REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 24, 1994
ANADARKO PETROLEUM CORPORATION, a Delaware corporation (the "Company"), the
Banks listed under "Commitment" in Section 1.01 (individually a "Bank" and
collectively the "Banks") and Chemical Bank, as Agent, do hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. As used in this Agreement, and unless the
context otherwise requires, the following terms shall have the meanings set out
respectively after each:
"Adjusted CD Rate" -- With respect to any Interest Period for a CD
Rated Loan, the sum of (a) the quotient (rounded upwards, if necessary, to
the next higher 1/100 of 1%) obtained by dividing the CD Rate by 1.00 minus
the Reserve Percentage and (b) the Assessment Rate. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective date of any
change in the Reserve Percentage.
"Agent" -- Chemical Bank or its successor appointed pursuant to
Section 7.11.
"Agreement" -- This Revolving Credit Agreement, as the same may be
amended, modified, supplemented or restated from time to time in accordance
with the terms hereof.
"Assessment Rate" -- With respect to any Interest Period for a CD
Rated Loan, the net annual assessment rate actually paid by Chemical to the
Federal Deposit Insurance Corporation (or any successor) for insurance by
such corporation (or such successor) of time deposits made in dollars at
offices of Chemical in the United States during the most recent period for
which such rate has been determined prior to the commencement of such
Interest Period.
"Attributable Debt" -- Any particular sale and leaseback transaction
under which the Company or any subsidiary is at the time liable, at any
date as of which the amount thereof is to be determined (a) in the case of
any such transaction involving a capital lease, the amount on such date
capitalized thereunder, or (b) in the case of any other sale and leaseback
transaction, the then present value of the minimum rental obligations under
such sale and leaseback transaction during the remaining term thereof
(after giving effect to any extensions at the option of the lessor)
computed by discounting the respective rental payments at the actual
interest factor included in such payments or, if such interest factor
cannot be readily determined, at the rate of 10% per annum. The amount of
any rental payment required to be made under any such sale and leaseback
transaction not involving a capital lease may exclude amounts required to
be paid by the lessee on account of maintenance and repairs, insurance,
taxes, assessments, utilities, operating and labor costs and similar
charges.
"Available Borrowing Base" -- At any time, the amount equal to the
difference obtained by subtracting from the Borrowing Base then in effect
the aggregate principal amount of all the outstanding Indebtedness of the
Company and its subsidiaries (including, without limitation, any then
outstanding Loans).
"Borrowing Base" -- At any time, the amount calculated by the
Determining Banks and approved by the Majority Banks as the Borrowing Base
and then in effect pursuant to Section 2.16; provided however, that from
the date hereof until such time as the Borrowing Base is so calculated and
approved and in effect, the Borrowing Base shall be $1,100,000,000.
"Borrowing Date" -- Each Working Day or Business Day, as the case may
be, specified in a notice pursuant to Section 2.03 as a date on which the
Company requests (or is deemed to have requested) the Banks to make Loans.
1
<PAGE> 5
"Business Day" -- A day which in the City of New York is not a day on
which banks are generally authorized or obligated by law to close.
"CD Rate" -- With respect to any Interest Period for a CD Rated Loan,
the average rate per annum bid at 10:00 A.M. (New York City time), or as
soon thereafter as practicable, on the first day of such Interest Period by
New York certificate of deposit dealers of recognized standing for the
purchase at face value from the Reference Banks of their certificates of
deposit in an amount comparable to the portion of the CD Rated Loans of
Chemical to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"CD Rated Loans" -- Loans hereunder at such time as they bear interest
at a rate based upon the Adjusted CD Rate.
"Change in Control" -- (a) The acquisition by any Person or two or
more Persons acting in concert of beneficial ownership (within the meaning
of Rule 13d-3 of the Commission) of 50% or more of the outstanding shares
of voting stock of the Company unless the Board of Directors of the Company
shall have publicly announced its support for such acquisition or (b) a
majority of the members of the Board of Directors of the Company on any
date shall not have been (i) members of the Board of Directors of the
Company on the date 12 months prior to such date or (ii) approved by
Persons who constitute at least a majority of the members of the Board of
Directors of the Company as constituted on the date 12 months prior to such
date.
"Chemical" -- Chemical Bank.
"Commission" -- The Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Agreement such Commission is not
existing and performing the duties now assigned to it, then the body
performing such duties at such time.
"Commitment" -- As to each Bank, its obligation to make Loans to the
Company pursuant to Section 2.01 in the amount set forth opposite its name
below, as such obligation may be reduced pursuant to this Agreement:
<TABLE>
<CAPTION>
PERCENTAGE
AMOUNT OF OF
BANK COMMITMENT COMMITMENT
---- ----------- ----------
<S> <C> <C>
Chemical Bank................................... $ 30,000,000 12.0%
The Chase Manhattan Bank, National
Association................................... 25,000,000 10.0
Morgan Guaranty Trust Company of New York....... 25,000,000 10.0
The Bank of New York............................ 21,250,000 8.5
Continental Bank N.A............................ 21,250,000 8.5
Credit Suisse................................... 21,250,000 8.5
Mellon Bank, N.A................................ 21,250,000 8.5
Bank of America National Trust and Savings
Association................................... 21,250,000 8.5
Credit Lyonnais Cayman Island Branch............ 21,250,000 8.5
The First National Bank of Chicago.............. 21,250,000 8.5
NationsBank of Texas, N.A....................... 21,250,000 8.5
Total................................. $250,000,000 100.0%
============ =====
</TABLE>
"Consolidated Stockholders' Equity" -- The par or stated value of the
stock of the Company plus paid-in capital plus retained earnings, all as
shown on the consolidated balance sheet of the Company and its subsidiaries
prepared in accordance with generally accepted accounting principles, as
such principles are in effect on the date of this Agreement.
"Credit Agreement" -- The Revolving Credit Agreement, dated as of
February 15, 1992, among the Company, the banks named therein and
Manufacturers Hanover Trust Company, as agent.
2
<PAGE> 6
"Defaulting Bank" -- Any Bank that shall (i) fail to make any Loan
required to be made by it hereunder, (ii) state in writing that it will not
make, or that it has disaffirmed or repudiated its obligation to make, any
Loan required to be made by it hereunder, by reason of the provisions of
the Financial Institution Reform, Recovery and Enforcement Act of 1989 or
otherwise or (iii) assign or transfer all or a part of its rights hereunder
without the prior written consent of the Company.
"Determining Banks" -- Chemical, Morgan Guaranty Trust Company of New
York and The Chase Manhattan Bank, National Association.
"Domestic Lending Office" -- Initially, the office of a Bank
designated as such and set forth with its signature below, and thereafter
such other office of such Bank, if any, of which such Bank shall notify the
Agent and Company in writing.
"Domestic Loans" -- All Reference Rated Loans and CD Rated Loans.
"Effective Date" -- May 24, 1994, or such other date as the parties
hereafter shall agree upon.
"Engineer's Opinion" -- A report prepared as of January 1 of the year
in which the report is delivered which shall, as of such January 1, and on
the basis of findings and data as of a date not more than four months prior
to such January 1, identify the properties covered thereby and set forth as
of such January 1: (a) the Proved Reserves attributable to such properties,
(b) projections of the future rate of production, the future net revenues
and the present value of future net revenues of production discounted at a
rate per annum designated by the Determining Banks, (c) projections of
reserves and the future rate of production of gas plant products, the
future net income from gas plant interests and the present value of the
future net income from the gas plant interests discounted at a rate per
annum designated by the Determining Banks, and (d) the price assumptions,
which shall be designated by the Determining Banks, used in arriving at the
value of future net revenues and future net income.
"Eurodollar Lending Office" -- Initially, the office of a Bank
designated as such and set forth with its signature below, and thereafter
such other office of such Bank, if any, of which such Bank shall notify the
Agent and the Company in writing.
"Eurodollar Loans" -- Loans hereunder at such time as they bear
interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" -- With respect to any Interest Period pertaining to
a Eurodollar Loan, the quotient obtained by dividing (a) the applicable
Interbank Rate by (b) 1.00 minus that percentage (expressed as a decimal)
which is prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding
$1,000,000,000 in respect of Eurocurrency liabilities having a maturity
comparable to such Interest Period and in an amount comparable to that
portion of the Eurodollar Loans of Chemical to which such Interest Period
applies (such Eurodollar Rate to be adjusted to the next higher 1/100 of
1%). The percentage referred to in clause (b) of the immediately preceding
sentence shall be adjusted automatically on and as of the effective date of
any change in the reserve requirement referred to in such clause (b).
"Event of Default" -- Any of the events of default set forth in
Article VI.
"Hydrocarbons" -- Oil, gas and other liquid or gaseous hydrocarbons.
"Indebtedness" -- Any indebtedness which: is for money borrowed;
represents the deferred purchase price of property or assets purchased,
except trade accounts payable in the ordinary course of business; is in
respect of a capitalized lease, an advance payment or production payment;
or is in respect of a guarantee of any of the foregoing obligations of
another Person.
"Independent Engineer" -- A Person appointed by the Board of Directors
of the Company and acceptable to the Determining Banks who is engaged in
engineering work or business who is in fact independent and does not have
any substantial interest, direct or indirect, in the Company, but such
Person may be regularly retained by the Company. If such Person is an
individual, he shall not be a
3
<PAGE> 7
director, officer or employee of the Company. If such Person is a
partnership or a corporation, it shall not have a partner, director or
officer who is a director, officer or employee of the Company.
"Interbank Rate" -- The average offered rate quoted to the Reference
Banks in the London Interbank Eurodollar Market as of 10:00 A.M. (New York
City time) two Working Days immediately preceding the commencement of the
Interest Period for a Eurodollar Loan for deposits in United States dollars
in an amount comparable to the Eurodollar Loan of Chemical to which such
Interest Period applies and for a period of time comparable to such
Interest Period.
"Interest Payment Date" -- (a) As to any Reference Rated Loan, the end
of any quarter with respect thereto and the Termination Date, (b) as to any
Eurodollar Loan, the last day of the Interest Period with respect thereto,
and, for Interest Periods longer than 3 months, each date which is 3
months, or a whole multiple thereof, from the first day of such Interest
Period and (c) as to any CD Rated Loan, the last day of the Interest Period
with respect thereto, and, for Interest Periods of 180 days, the date which
is 90 days from the first day of such Interest Period.
"Interest Period" -- (a) With respect to any Eurodollar Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending 1, 2, 3, 6 or, to the extent funds are available, as
determined by the Agent, 9 or 12 months thereafter, as selected by the
Company in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
1, 2, 3, 6 or, to the extent funds are available, as determined by the
Agent, 9 or 12 months thereafter, as selected by the Company by
irrevocable notice to the Agent not less than two Working Days prior to
the last day of the then current Interest Period with respect thereto;
and
(b) with respect to any CD Rated Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such CD Rated Loan
and ending 30, 60, 90 or 180 days thereafter, as selected by the Company
in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such CD Rated Loan and ending
30, 60, 90 or 180 days thereafter, as selected by the Company by
irrevocable notice to the Agent on the last day of the then current
Interest Period with respect thereto;
provided that, the foregoing provisions relating to Interest Periods are
subject to the following:
(A) the Company shall have no right to elect an Interest Period
which would extend beyond the Termination Date;
(B) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day which is not a Working Day, that Interest Period
shall be extended to the next succeeding Working Day unless the result
of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Working Day;
(C) if any Interest Period pertaining to a CD Rated Loan would
otherwise end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day;
(D) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Working Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Working Day of a calendar
month;
4
<PAGE> 8
(E) if any Interest Period would otherwise extend beyond the (i)
Termination Date or (ii) date an amount or amounts are required to be
repaid pursuant to Section 2.07, then (1) the Interest Period for the
principal amount (if any) of each Loan required to be repaid on such
date shall end on such date and (2) the remainder (if any) of each such
Loan shall have an Interest Period determined as set forth above; and
(F) for purposes of determining the availability of 9 or 12-month
Interest Periods in respect of Eurodollar Loans, such Interest Periods
shall be deemed available if (1) each of the Reference Banks quotes a
rate to the Agent as provided in the definition of Eurodollar Rate and
(2) the Majority Banks shall not have advised the Agent that the
Eurodollar Rate determined by the Agent on the basis of such quotes will
not adequately and fairly reflect the cost to such Banks of maintaining
or funding their Eurodollar Loans for such Interest Period.
"Lien" -- Any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind, including, without limitation, any conditional sale
or other title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction and, in the case of any production
payment, the right, title and interest of the owner of such production
payment in the Mineral Interests out of the production from which such
production payment is payable.
"Loan" -- As the context may require, any CD Rated Loan, Eurodollar
Loan or Reference Rated Loan.
"Majority Banks" -- At any time, Banks holding at least 66 2/3% of the
then aggregate unpaid principal amount of the Notes held by Banks or, if no
such principal amount is then outstanding, Banks having at least 66 2/3% of
the Commitments; provided, however, that the term Majority Banks as used in
Section 2.16 shall mean, at any time, Banks holding at least 75% of the
then aggregate unpaid principal amount of the Notes held by Banks or, if no
such principal amount is then outstanding, Banks having at least 75% of the
Commitments.
"Mineral Interests" -- Leasehold and other interests in or under oil,
gas and other mineral leases, mineral fee interests, overriding royalty and
royalty interests and any other interests in Hydrocarbons and other
minerals in place.
"Moodys" -- Moody's Investors Service, Inc.
"Net Proceeds" -- (a) The gross fair market value of the consideration
or other amounts payable to or receivable by the Company in respect of any
sales, transfers, distributions (other than cash dividends) or other
dispositions of assets or properties other than (i) in the ordinary course
of business, (ii) from the Company to a wholly owned subsidiary or (iii)
from a subsidiary of the Company to the Company or a wholly owned
subsidiary, less (b) the amount, if any, of all foreign and domestic taxes
(but including income taxes only to the extent the Company reasonably
estimates that such income taxes will be paid as a result of the federal
income tax return or any state income tax return filed by the Company for
the year in which the transaction takes place), and reasonable and
customary fees, commissions, costs and other expenses which are incurred in
connection with such sales, transfers or other dispositions and are payable
by the seller or the transferor of the assets or property to which such
sales, transfers or other dispositions relate, but only to the extent not
already deducted in arriving at the amount referred to in clause (a).
"Note" -- Any of the promissory notes of the Company payable to the
order of any Bank in substantially the form attached hereto as Exhibit A.
"Other Credit Agreement" -- means the $150,000,000 364-Day Credit
Agreement, dated as of the date hereof, among the Company, the banks listed
therein and Chemical, as agent for such banks, as the same may be amended,
modified, supplemented or restated, from time to time, in accordance with
the terms thereof.
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"Person" -- Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Proved Reserves" -- The estimated quantities of Hydrocarbons which
geological and engineering data demonstrate with reasonable certainty to be
recoverable in future years from known reservoirs under existing economic
and operating conditions.
"Public Indenture" -- The Indenture, dated as of May 10, 1988, between
the Company and Continental Illinois National Bank and Trust Company of
Chicago (now known as Continental Bank N.A.), as Trustee, as amended by the
First Supplemental Indenture, dated as of November 15, 1991, between the
Company and Continental Bank N.A.
"Reference Banks" -- Chemical and Mellon Bank, N.A.
"Reference Rate" -- The rate of interest publicly announced by
Chemical from time to time in the City of New York as its reference rate.
The reference rate is not intended to be the lowest rate of interest
charged by Chemical in connection with extensions of credit to debtors.
"Reference Rated Loans" -- Loans hereunder at such time as they bear
interest at a rate based upon the Reference Rate.
"Reserve Percentage" -- For any day during any Interest Period
pertaining to a CD Rated Loan, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor) for determining the reserve
requirement for a member bank of the Federal Reserve System in the City of
New York with deposits exceeding $1,000,000,000 in respect of new
non-personal time deposits in dollars in the City of New York having a
maturity comparable to the portion of the CD Rated Loans to which such
Interest Period applies and in an amount of $100,000 or more.
"S&P" -- Standard & Poor's Corporation.
"Termination Date" -- June 30, 1999.
"Tranche" -- The collective reference to Loans (other than Reference
Rated Loans) of the same Type the then current Interest Periods with
respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Type" -- As to any Loan, its nature as a Reference Rated Loan, a CD
Rated Loan or a Eurodollar Loan.
"Working Day" -- A day on which banks are open for business in the
City of New York and in London and dealings are carried out in the London
Interbank Eurodollar Market.
SECTION 1.02. Use of Defined Terms. Any defined term used in the plural
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined term used in the singular preceded by "any" shall be
taken to indicate any number of the members of the relevant class.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in each case in accordance with generally
accepted accounting principles as in effect on the date of this Agreement.
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.01. Loans. (a) Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make revolving credit Loans to the
Company from time to time during the period from the Effective Date to, but not
including, the Termination Date in an aggregate principal amount at any one time
outstanding not to exceed its Commitment. The Company may use the Commitments by
borrowing, repaying and
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prepaying the Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
(b) The Loans may be (i) Eurodollar Loans, (ii) Reference Rated Loans,
(iii) CD Rated Loans or (iv) a combination thereof, as determined by the Company
and notified to the Agent in accordance with Sections 2.03 and 2.22. Eurodollar
Loans shall be made and maintained by each Bank at either a Eurodollar Lending
Office or a Domestic Lending Office, at its option.
SECTION 2.02. Notes. (a) Loans made by each Bank pursuant hereto shall be
evidenced by an appropriate Note, payable to the order of such Bank and
representing the obligation of the Company to pay the amount of the Commitment
of such Bank or, if less, the aggregate unpaid principal amount of all Loans
made by such Bank, with interest thereon as prescribed in Section 2.09. Each
Note shall (i) be dated the Effective Date, (ii) mature on the Termination Date
and (iii) bear interest for the period from the date thereof until paid in full
on the unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in Section 2.09 and
payable as specified in Section 2.09(e). Each Bank is hereby authorized to
record the date, Type and amount of each Loan made by such Bank pursuant to
Section 2.01, each continuation thereof, each conversion of all or a portion
thereof to another Type, and the date and amount of each repayment or prepayment
of principal thereof on the schedule annexed to and constituting a part of its
Note, and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded.
(b) Each Bank shall, at the request of the Company, deliver to the Company
copies of the Notes and the schedules annexed thereto.
SECTION 2.03. Procedure for Borrowing. The Company may borrow on any
Working Day if the borrowing (or any portion thereof) consists of Eurodollar
Loans or on any Business Day if the borrowing consists entirely of Domestic
Loans; provided that the Company shall give the Agent notice not later than (i)
two Working Days prior to the Borrowing Date, in the case of Eurodollar Loans,
and (ii) the Borrowing Date, in the case of Domestic Loans. Such notice shall
specify (i) the amount to be borrowed, (ii) the Borrowing Date, (iii) whether
the borrowing is to consist of Eurodollar Loans, Reference Rated Loans, CD Rated
Loans or a combination thereof (in each case stating the amounts requested), and
(iv) except in the case of Reference Rated Loans, the length of the Interest
Period(s) therefor. Each borrowing shall be in an aggregate principal amount not
less than (i) in the case of Reference Rated Loans, the lesser of (A)
$10,000,000 or a whole multiple of $5,000,000 in excess thereof and (B) the then
unused Commitments or (ii) in the case of CD Rated Loans or Eurodollar Loans,
$10,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon receipt of
such notice, the Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available to the Agent
for the account of the Company at the office of the Agent designated by the
Agent in the Agent's notice aforesaid prior to 11:30 A.M. (according to the time
of the place where such office of the Agent is located) on the Borrowing Date
requested by the Company in funds immediately available to the Agent as the
Agent may direct. The proceeds of each such borrowing will then be made
available to the Company by the Agent crediting the account of the Company on
the books of the Agent with the aggregate amount made available to the Agent by
the Banks and in like funds as received by the Agent.
SECTION 2.04. Commitment Fees. (a) Subject to subsection (b) of this
Section, the Company agrees to pay to the Agent for the account of each Bank a
commitment fee from the Effective Date to, but not including, the Termination
Date or such earlier date upon which the Commitments shall terminate or be
reduced to zero pursuant to Section 2.05 or 6.01, computed at the rate of
18.50/100 of 1% per annum (or, in the case of each day on which the ratings by
Moodys and S&P of the Company's long term senior unsecured debt are (i) in
neither case greater than, but not both less than, "BBB-" or equivalent rating,
23.50/100 of 1% per annum or (ii) both less than "BBB-" or equivalent rating,
31/100 of 1% per annum, provided that for purposes of this Section 2.04(a), in
the event that a rating is not available from either Moodys or S&P, such rating
agency shall be deemed to have assigned its lowest rating) on an amount equal to
the average daily unused portion of the Commitments in effect for the period for
which payment is made.
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(b) If any Bank shall become a Defaulting Bank, then, notwithstanding
subsection (a) above and without prejudicing any right or remedy that the
Company may have with respect to, on account of, arising from or relating to any
event pursuant to which such Bank shall be a Defaulting Bank, no commitment fee
shall accrue for the account of such Bank from and after the date upon which
such Bank shall have become a Defaulting Bank.
(c) Commitment fees shall be payable quarterly in arrears on the last day
of each March, June, September and December, commencing on June 30, 1994, and on
the Termination Date or such earlier date as the Commitments shall terminate or
be reduced to zero as provided herein.
SECTION 2.05. Reduction or Termination of Commitments. (a) The Company
shall have the right, upon not less than two Business Days' notice to the Agent,
to terminate the Commitments or, from time to time, reduce the amount of the
Commitments. Any reduction shall be accompanied by prepayment of the Loans to
the extent, if any, that the Loans then outstanding exceed the amount of the
Commitments as then reduced. Any termination of the Commitments shall be
accompanied by prepayment in full of the Loans then outstanding and the payment
of any unpaid commitment fees then accrued hereunder. Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Any reduction shall
be in an amount of $5,000,000 or a whole multiple thereof and shall reduce
permanently the amount of the Commitments then in effect. The Commitments once
terminated or reduced may not be reinstated.
(b) If during any calendar year the Company or its subsidiaries shall
receive Net Proceeds from the sale, transfer, distribution or other disposition
of property identified in the most recent Engineer's Opinion delivered pursuant
to Section 4.01 in an aggregate amount in excess of $50,000,000, the Borrowing
Base shall be reduced by the amount of such excess, each such reduction to occur
on the date of receipt by the Company or its subsidiaries of such excess amount.
SECTION 2.06. Optional Prepayments. (a) The Company may, at its option, as
provided in this Section 2.06, at any time and from time to time prepay the
Loans, in whole or in part, upon at least two Business Days' prior notice to the
Agent, specifying (i) the date and amount of prepayment and (ii) the respective
amounts to be prepaid in respect of Reference Rated Loans, CD Rated Loans and
Eurodollar Loans. Upon receipt of such notice, the Agent shall promptly notify
each Bank thereof. The payment amount specified in such notice shall be due and
payable on the date specified. All prepayments pursuant to this Article II shall
include accrued interest on the amount prepaid to the date of prepayment and, in
the case of prepayments of Eurodollar Loans and CD Rated Loans, any amounts
payable pursuant to Section 2.20. The Loans shall also be subject to prepayment
as provided in Sections 2.05, 2.07, 2.12, 2.13 and 8.06.
(b) Partial optional prepayments pursuant to this Section 2.06 shall be in
an aggregate principal amount of $10,000,000 or any whole multiple of $5,000,000
in excess thereof. All prepayments of Loans pursuant to this Article II shall be
without the payment by the Company of any premium or penalty except for amounts
payable pursuant to Section 2.20.
SECTION 2.07. Mandatory Prepayments. (a) If at any time the aggregate
outstanding principal amount of the Loans exceeds the Commitments, the Company
shall prepay the Loans in an amount equal to such excess.
(b) If at any time the Available Borrowing Base is less than zero, the
Company shall prepay Indebtedness in an amount at least sufficient to cause the
Available Borrowing Base to be equal to zero. If any amount is required to be
prepaid pursuant to this subsection (b) as a result of a decrease in the
Borrowing Base, the Company shall pay such amount in no more than six equal
monthly installments, payable on the fifteenth day of each calendar month,
commencing on the first such day to occur after the date of any determination
that a prepayment is required pursuant to this subsection (b).
(c) Each prepayment of Loans pursuant to this Section 2.07 shall be
accompanied by payment of accrued interest on the amount prepaid to the date of
prepayment and, in the case of prepayments of Eurodollar Loans and CD Rated
Loans, any amounts payable pursuant to Section 2.20.
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SECTION 2.08. Repayment of Loans. The Company shall pay to the Agent for
the account of each Bank the unpaid principal amount of each Loan made by such
Bank on the Termination Date.
SECTION 2.09. Interest Rate. (a) Each Eurodollar Loan shall bear interest
for each day during each Interest Period with respect thereto on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate for
such Interest Period plus 37.50/100 of 1%.
(b) Each Reference Rated Loan shall bear interest on the unpaid principal
amount thereof at a fluctuating rate per annum equal to the Reference Rate.
(c) Each CD Rated Loan shall bear interest for each day during each
Interest Period with respect thereto on the unpaid principal amount thereof at a
rate per annum equal to the Adjusted CD Rate for such Interest Period plus
50/100 of 1%.
(d) Any overdue principal of any Loan shall, without limiting the rights of
any Bank under Article VI, bear interest at a rate per annum which is 1% above
the rate which would otherwise be applicable to such Loan pursuant to
subsections (a), (b) and (c) of this Section 2.09 until paid in full (as well
after as before judgment).
(e) Interest shall be payable on each Interest Payment Date.
(f) Notwithstanding the foregoing, if on any day the sum of (i) the
aggregate principal amount of outstanding Loans and (ii) the aggregate principal
amount of loans outstanding under the Other Credit Agreement is greater than 50%
of the sum of (A) the aggregate Commitments hereunder and (B) the aggregate
commitments then existing under the Other Credit Agreement, each Eurodollar Loan
and CD Rated Loan shall bear interest, for such day, at a rate per annum which
is 12.50/100 of 1% above the rate which would otherwise be applicable pursuant
to subsections (a) and (c) of this Section 2.09.
(g) Notwithstanding the foregoing, (i) if on any day neither of the ratings
by Moodys and S&P of the Company's long term senior unsecured debt is greater
than "BBB-" or equivalent rating, but such ratings are not both less than "BBB-"
or equivalent rating, Eurodollar and CD Rated Loans shall bear interest, for
such day, at a rate per annum which is 12.50/100 of 1% above the rate which
would otherwise be applicable pursuant to subsections (a), (c) and (f) of this
Section 2.09; or (ii) if on any day Moodys and S&P both rate the Company's long
term senior debt less than "BBB-" or equivalent rating, Eurodollar and CD Rated
Loans shall bear interest, for such day, at a rate per annum which is 25/100 of
1% above the rate which would otherwise be applicable pursuant to subsections
(a), (c) and (f) of this Section 2.09. For purposes of this Section 2.09, in the
event a rating is not available from either Moodys or S&P, such rating agency
will be deemed to have assigned its lowest rating.
SECTION 2.10. Computation of Interest and Fees. (a) Interest on the
Reference Rated Loans and commitment fees shall be calculated on the basis of a
365-(or 366-as the case may be) day year for the actual days elapsed. Interest
on Eurodollar Loans and CD Rated Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. The Agent shall notify the Company and
the Banks of each determination of a Eurodollar Rate and of an Adjusted CD Rate.
Any change in the interest rate resulting from a change in the Reference Rate
shall become effective as of the opening of business on the day on which such
change in the Reference Rate shall become effective. The Agent shall notify the
Company and the Banks of the effective date and the amount of each such change
in the Reference Rate.
(b) The Agent shall, at the request of the Company, deliver to the Company
a statement showing the quotations given by the Reference Banks and the
computations used by the Agent in determining any interest rate pursuant to
subsection (a) or (c) of this Section 2.10.
(c) If either of the Reference Banks shall be unable or shall otherwise
fail to notify the Agent of a rate, the interest rate shall be determined on the
basis of the rate notified by the other Reference Bank.
SECTION 2.11. Pro Rata Treatment and Payments. Each borrowing by the
Company from the Banks, each payment (including each prepayment) by the Company
on account of the principal of and interest on the Loans and on account of any
commitment fees hereunder and any reduction of the Commitments of the
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Banks hereunder shall be made pro rata according to the Commitments, except that
(i) payments or prepayments, and offsets against or reductions from the amount
of payments and prepayments, in each case, specifically for the account of a
particular Bank under the terms of Section 2.04, 2.12, 2.13, 2.20 or 8.06 shall
be made for the account of such Bank and (ii) if any Bank shall become a
Defaulting Bank, from and after the date upon which such Bank shall have become
a Defaulting Bank, any payment made on account of principal of or interest on
the Loans shall be applied, first for the account of the Banks other than the
Defaulting Bank, pro rata according to the Commitments of such Banks, until the
principal of and interest on the Loans of such Banks shall have been paid in
full and, second for the account of such Defaulting Bank, provided that the
application of such payments in accordance with this clause (ii) shall not
constitute an Event of Default or an event which with the giving of notice or
the passage of time, or both, would constitute an Event of Default, and no
payment of principal of or interest on the Loans of such Defaulting Bank shall
be considered to be overdue for purposes of Section 2.09(d) hereof, if, had such
payments been applied without regard to this clause (ii), no such Event of
Default or event which with the giving of notice or the passage of time, or
both, would constitute an Event of Default would have occurred and no such
payment of principal of or interest on the Loans of such Defaulting Bank would
have been overdue. All payments (including prepayments) to be made by the
Company on account of principal, interest and commitment fees shall be made
without setoff or counterclaim and shall be made to the Agent on behalf of the
Banks at the Agent's office located at (a) 270 Park Avenue, New York, New York
10017 at or before 12:00 noon (New York City time) in the case of Domestic Loans
and commitment fees, for the account of the Domestic Lending Offices of the
Banks and (b) 4 New York Plaza, New York, New York 10015 at or before 12:00 noon
(New York City time) in the case of Eurodollar Loans, for the account of the
Eurodollar Lending Offices or Domestic Lending Offices, as the case may be, of
the Banks which shall then be maintaining Eurodollar Loans, in each case in
lawful money of the United States of America and in immediately available funds.
The Agent shall distribute such payments to the Banks promptly upon receipt in
like funds as received.
If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such extension would be to extend
such payment into another calendar month in which event such payment shall be
made on the immediately preceding Working Day. Each Bank is authorized to and
shall endorse the date, Type and amount of each Loan made by such Bank, each
continuation thereof, each conversion of all or a portion thereof to another
Type, and the date and amount of each payment of principal with respect thereto
on the schedule annexed to and constituting a part of its Note. No failure to
make or error in making any such endorsement as authorized hereby shall affect
the validity of the obligations of the Company to repay the unpaid principal
amount of the Loans with interest thereon as provided in Section 2.09 or the
validity of any payment thereof made by the Company.
Except as provided in Sections 2.04(b), 2.12, 2.13, 2.20, 8.06 and this
Section 2.11, if the holder of any Note shall obtain any payment (whether
voluntary, involuntary, by application of offset or otherwise) upon principal of
or interest on such Note in excess of its pro rata share of payments obtained by
all holders upon principal of and interest on such Notes then held by them, such
holder shall purchase from the other holders such participation in such Notes
held by them as shall be necessary to cause such purchasing holder to share the
excess payment ratably with each of them; providing however, that if all or any
portion of the excess payment is thereafter recovered from such purchasing
holder, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
The following subsection (a) of Section 2.12 and subsection (b) of Section
2.15 shall be applicable to Eurodollar Loans and CD Rated Loans only and the
following Section 2.13 and subsection (a) of Section 2.15 shall be applicable to
Eurodollar Loans only.
SECTION 2.12. Increased Cost of Loans. (a) In the event of any change in
any applicable law, treaty or governmental regulation after the date of this
Agreement, or in the interpretation or application thereof after the date of
this Agreement, or compliance by any Bank with any request or directive (whether
or not having
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the force of law) from any central bank or other governmental authority made or
issued after the date of this Agreement, which:
(i) does or shall subject such Bank to any tax of any kind whatsoever
(including, without limitation, withholding taxes) with respect to this
Agreement, any Note or any Eurodollar or CD Rated Loan, or change the basis
of taxation of payments to such Bank of principal, commitment fees, penalty
fees, interest or any other amount payable hereunder (except for changes in
the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Bank (in excess, and without duplication, of those
taken into account in computing the Eurodollar Rate for any Eurodollar
Interest Period, the Reserve Percentage and the Assessment Rate); or
(iii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making, converting into, continuing or maintaining Eurodollar Loans or CD Rated
Loans or to reduce any amount receivable hereunder with respect to Eurodollar
Loans or CD Rated Loans, then, in any such case, the Company shall pay such
Bank, upon written demand being made to the Company by such Bank, such
additional amount which will compensate such Bank for such amounts as that Bank
reasonably deems to be material with respect to this Agreement, the Notes or the
Loans hereunder, provided, however, that if all or any such additional cost
would not have been payable, or such reduction would not have occurred, but for
such Bank's decision to designate a new Eurodollar Lending Office or refusal to
change to another Eurodollar Lending Office as provided below, the Company shall
have no obligation under this Section 2.12 to compensate such Bank for such
amount. Such demand shall be accompanied by a certificate of a duly authorized
officer of such Bank setting forth the amount of such payment and the basis
therefor, which certificate shall be prima facie evidence of the amount of such
payment. Each Bank shall also give written notice to the Company and the Agent
of any event occurring after the date of this Agreement which would entitle such
Bank to compensation pursuant to this Section 2.12 as promptly as practicable
after it obtains knowledge thereof and determines to request such compensation
and will designate a different Eurodollar Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Bank, be disadvantageous to such Bank.
Notwithstanding the foregoing, in the event that any Bank shall demand payment
pursuant to this Section 2.12, the Company may, upon at least two Business Days'
notice to the Agent and such Bank, convert in whole (but not in part) the
Eurodollar Loans or CD Rated Loans, as the case may be, of such Bank, into Loans
of another Type without regard to the requirements of Section 2.22 (other than
clause (i) of the proviso to the last sentence of subsection (a) thereof).
(b) In the event that any Bank shall have reasonably determined that the
adoption after the date of this Agreement of any law, rule or regulation
regarding capital adequacy, or any change therein or in the interpretation or
application thereof after the date of this Agreement or compliance by any Bank
with any request or directive regarding capital adequacy (whether or not having
the force of law) from any central bank or governmental authority made or issued
after the date of this Agreement, does or shall have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount reasonably deemed by such Bank to
be material, then from time to time, after submission by such Bank to the
Company (with a copy to the Agent) of a written request therefor, the Company
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such reduction from and after such date the Company receives the
request; provided, however, that the foregoing shall not apply to any capital
adequacy requirement imposed solely by reason of any business combination
effected after the date hereof.
SECTION 2.13. Illegality. Notwithstanding anything herein contained, if any
Bank shall make a good faith determination that a change in any applicable law
or regulation or in the interpretation thereof by any
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authority charged with the administration thereof shall make it unlawful for
such Bank to give effect to its obligations to make, convert into, continue or
maintain its Eurodollar Loans under this Agreement, the obligation of such Bank
to make, convert into, continue or maintain Eurodollar Loans hereunder shall be
suspended for the duration of such illegality. Such Bank, by written notice to
the Agent and to the Company, shall declare that such Bank's obligation to make,
convert into, continue and maintain Eurodollar Loans shall be suspended, and the
Company, on the last day of the then current Interest Period applicable to such
Eurodollar Loans or portion thereof or, if the Bank so requests, on such earlier
date as may be required by relevant law, shall convert such Eurodollar Loans or
portion thereof into Loans of another Type, without regard to the requirements
of Section 2.22 (other than clause (i) of the proviso to the last sentence of
subsection (a) thereof). If and when such illegality ceases to exist, such
suspension shall cease and such Bank shall notify the Company and the Agent
thereof and any Loans previously converted from Eurodollar Loans to Loans of a
different Type pursuant to this Section 2.13 shall be converted into Loans of
Types corresponding to the Loans maintained by the other Banks on the last day
of the Interest Period of the corresponding Eurodollar Loans of the other Banks
unless, in the case of a conversion of CD Rated Loans, the Company shall have
elected, by notice to the Agent, not to convert such CD Rated Loans until the
last day of the then current Interest Period with respect thereto, in which
case, such CD Rated Loans shall be converted at such time as the Company may
elect in accordance with Section 2.22.
SECTION 2.14. Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to each
of the Company and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Bank is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Company or the Agent, in each case
certifying that such Bank is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.15. Substitute Loan Basis. (a) In the event that the Majority
Banks shall reasonably determine (which determination shall be final and
conclusive and binding upon the Company) at any time that (i) by reason of
changes affecting the London Interbank Eurodollar Market, adequate and fair
means do not exist for ascertaining the rate of interest applicable to any
Tranche of Eurodollar Loans for any requested Interest Period or (ii) the making
of, converting into or continuing for an additional Interest Period of any
Tranche of Eurodollar Loans has been made impracticable by the occurrence of a
contingency which materially and adversely affects the London Interbank
Eurodollar Market then, and in any such event, the Agent shall forthwith give
notice to the Company and, subject to the provisions of subsection (b) of this
Section 2.15 (x) unless on the date upon which such Eurodollar Loans were to be
made the Company notifies the Agent that it elects not to borrow on such date,
any Eurodollar Loans requested to be made on the first day of such Interest
Period shall be made as Reference Rated Loans or CD Rated Loans, as requested by
the Company by notice (setting forth, in the case of any request that such Loans
be made as CD Rated Loans, the initial Interest Period with respect thereto) to
the Agent on the date upon which such Loans are to be made, or, in the absence
of any such request, as Reference Rated Loans, (y) any Loans that were to have
been, on the first day of such Interest Period, converted to or continued as
Eurodollar Loans shall be converted to or continued as Reference Rated Loans or
CD Rated Loans, as requested by the Company by notice (setting forth, in the
case of any request that such Loans be converted to or continued as CD Rated
Loans, the next Interest Period with respect thereto) to the Agent on the date
upon which such Loans were to have been
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converted or continued, or, in the absence of any such request, as Reference
Rated Loans, and (z) any outstanding Eurodollar Loans shall be converted, on the
last day of the Interest Period applicable thereto, to Reference Rated Loans or
CD Rated Loans, as requested by the Company by notice (setting forth, in the
case of any request that such Loans be converted to CD Rated Loans, the initial
Interest Period with respect thereto) to the Agent on the date upon which such
Loans are to be converted, or in the absence of any such request, to Reference
Rated Loans. The Agent shall give written notice to the Company of any event
occurring after the giving of such notice which permits an adequate and fair
means of ascertaining the rate of interest applicable to Eurodollar Loans and
until such notice by the Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall the Company have the right to convert Loans to
Eurodollar Loans.
(b) In the event that the Majority Banks shall reasonably determine (which
determination shall be final and conclusive and binding upon the Company) at any
time that (i) by reason of changes affecting the market for domestic
certificates of deposit of commercial banks, adequate and fair means do not
exist for ascertaining the rate of interest applicable to any Tranche of CD
Rated Loans for any requested Interest Period or (ii) the making of, converting
into or continuing for an additional Interest Period of any Tranche of CD Rated
Loans has been made impracticable by the occurrence of a contingency which
materially and adversely affects the market for domestic certificates of deposit
of commercial banks then, and in any such event, the Agent shall forthwith give
notice to the Company and, subject to the provisions of subsection (a) of this
Section 2.15 (x) unless on the date upon which such CD Rated Loans were to be
made, the Company notifies the Agent that it elects not to borrow on such date,
any CD Rated Loans requested to be made on the first day of such Interest Period
shall be made as Reference Rated Loans or Eurodollar Loans, as requested by the
Company by notice (setting forth, in the case of any request that such Loans be
made as Eurodollar Loans, the initial Interest Period with respect thereto) to
the Agent on the date of or two Working Days before, as the case may be, such
Loans are to be made, or, in the absence of any such request, as Reference Rated
Loans, (y) any Loans that were to have been, on the first day of such Interest
Period, converted to or continued as CD Rated Loans shall be converted to or
continued as Reference Rated Loans or Eurodollar Loans, as requested by the
Company by notice (setting forth, in the case of any request that such Loans be
converted to or continued as Eurodollar Loans, the next Interest Period with
respect thereto) to the Agent on the date upon or two Working Days before, as
the case may be, such Loans were to have been converted or continued, or, in the
absence of any such request, as Reference Rated Loans and (z) any outstanding CD
Rated Loans shall be converted, on the last day of the Interest Period
applicable thereto, to Reference Rated Loans or Eurodollar Loans, as requested
by the Company by notice (setting forth, in the case of any request that such
Loans be converted to Eurodollar Loans, the initial Interest Period with respect
thereto) to the Agent on the date upon or two Working Days before, as the case
may be, the date upon which such Loans are to be converted, or, in the absence
of any such request, to Reference Rated Loans. The Agent shall give written
notice to the Company of any event occurring after the giving of such notice
which permits an adequate and fair means of ascertaining the rate of interest
applicable to CD Rated Loans and until such notice by the Agent, no further CD
Rated Loans shall be made or continued as such, nor shall the Company have the
right to convert Loans to CD Rated Loans.
SECTION 2.16. Determination of Borrowing Base. On or before the date which
is the later of April 1 in each year and the date which is one month after the
date on which the Engineer's Opinion for such year is delivered to the Banks
pursuant to Section 4.01, the Determining Banks shall determine, based upon the
information, including information as to projected cash flows, contained in such
Engineer's Opinion, the Determining Banks' normal policy guidelines on price
parameters, cost escalations and discount and other factors customarily used by
each Determining Bank in evaluating energy and natural resource related credits,
a borrowing base. The borrowing base as determined shall be promptly
communicated to the other Banks, which shall promptly consider and approve or
disapprove the same, and upon approval of such determination by the Majority
Banks, by notice to the Agent, such borrowing base shall constitute the
"Borrowing Base." Such determination by the Determining Banks and such approval
or nonapproval by the Majority Banks shall be made in the sole and absolute
discretion of the Determining Banks and the Majority Banks, respectively. No
later than May 15 in each year or the date which is six weeks after the date on
which the Engineer's Opinion for such year is delivered to Banks pursuant to
Section 4.01, the Agent shall notify the Company of
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the Borrowing Base. If the Agent fails to notify the Company, the Borrowing Base
shall remain in effect until the next succeeding calculation of the Borrowing
Base in the manner provided above.
SECTION 2.17. Certain Prepayments or Conversions Pursuant to Sections 2.12
and 2.13. In the event that Loans of any Bank of one Type are prepaid or
converted into Loans of another Type pursuant to Sections 2.12 or 2.13 (Loans of
the former Type being herein called "Affected Loans"), unless and until such
Bank gives written notice that the circumstances which gave rise to such
prepayment or conversion no longer exist (which such Bank agrees to do promptly
upon such circumstances ceasing to exist) such Bank shall not make further
Affected Loans and all Loans which would otherwise be made by such Bank as, or
converted by such Bank into, Affected Loans shall be made instead as, or
converted into or continued as, Loans of another Type (on which interest and
principal shall be payable simultaneously with the related Affected Loans of the
other Banks).
SECTION 2.18. Certain Notices. Notices by the Company under each of
Sections 2.03, 2.05, 2.06, 2.12, 2.15 and 2.22 and under the definition of
"Interest Period" in Section 1.01 (a) shall be given in writing, by telegraph,
by telecopy or by telephone (confirmed promptly in writing) and (b) shall be
effective only if received by the Agent and, in the case of Section 2.12, the
Bank involved, not later than 10:30 A.M. (New York City time) on the day
specified in the respective Section or definition as the latest day such notice
may be given. Notices by the Company under each of Sections 2.03, 2.05, 2.06,
2.12, 2.15 and 2.22 shall be irrevocable.
SECTION 2.19. Use of Proceeds. The Company agrees that the proceeds of the
Loans obtained by the Company hereunder shall be used for its general corporate
purposes, including the repayment of indebtedness and loans to subsidiaries and
will not be used, directly or indirectly, or for any other purpose which would
result in a violation of any law, rule or regulation, including Regulation U of
the Board of Governors of the Federal Reserve System, known to the Company.
SECTION 2.20. Indemnity. The Company agrees to indemnify each Bank and to
hold such Bank harmless from any loss (other than loss of margin after the date
of such default or prepayment) or expense which such Bank may sustain or incur
as a consequence of (a) default by the Company in making a borrowing of,
conversion into or continuance of a Eurodollar Loan or CD Rated Loan after the
Company has given a notice requesting the same in accordance with this
Agreement, (b) default by the Company in making any prepayment of a Eurodollar
Loan or a CD Rated Loan after the Company has given a notice in accordance with
Section 2.06 or (c) the making by the Company of a prepayment or conversion of a
Eurodollar Loan or a CD Rated Loan on a day which is not the last day of the
Interest Period with respect thereto, arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans or CD Rated Loans hereunder or
from fees payable to terminate the deposits from which such funds were obtained.
This covenant shall survive termination of this Agreement and payment of the
Notes.
SECTION 2.21. Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Tranche shall be equal to $10,000,000 or a whole multiple of
$5,000,000 in excess thereof.
SECTION 2.22. Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans or CD Rated Loans to
Reference Rated Loans by giving the Agent irrevocable notice of such election on
the date of such conversion, provided that any such conversion may only be made
on the last day of an Interest Period with respect to the Loans being converted.
The Company may elect from time to time to convert Reference Rated Loans or
Eurodollar Loans to CD Rated Loans by giving the Agent irrevocable notice of
such election on the date of such conversion, provided that any such conversion
of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Company may elect from time to time to convert Reference
Rated Loans or CD Rated Loans to Eurodollar Loans by giving the Agent at least
two Working Days irrevocable notice of such election, provided that any such
conversion of CD Rated Loans may only be made on the last day of an Interest
Period with respect thereto. Any such notice of conversion to Eurodollar Loans
or CD Rated Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice, the Agent shall
promptly notify
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each Bank thereof. All or any part of outstanding Eurodollar Loans, CD Rated
Loans and Reference Rated Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a Eurodollar Loan or a CD Rated Loan at
any time at which an Event of Default has occurred and is continuing and (ii)
any conversion may only be made if, after giving effect thereto, Section 2.21
shall not have been contravened.
(b) Any Eurodollar Loans or CD Rated Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that (i) no Loan
may be continued as a Eurodollar Loan or a CD Rated Loan for an additional
Interest Period at any time at which an Event of Default has occurred or is
continuing and (ii) no Eurodollar Loan or CD Rated Loan may be continued as such
if, after giving effect thereto, Section 2.21 would be contravened and provided,
further, that if the Company shall fail to give any required notice as described
above in this section, or if such conversion is not permitted pursuant to the
preceding proviso hereof, such Loans shall be automatically converted to
Reference Rated Loans on the last day of such then expiring Interest Period.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties by the Company. The Company
represents and warrants to each of the Banks that:
(a) Corporate Existence, Qualification. The Company (i) has been duly
incorporated and is validly existing and in good standing under the laws of
the State of Delaware and (ii) is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction of the United
States in which the ownership of its properties or the conduct of its
business requires such qualification and where the failure to so qualify
would have a material adverse effect upon the business of the Company and
its subsidiaries taken as a whole.
(b) Corporate Authorization and Binding Agreement. This Agreement has
been duly authorized, executed and delivered by the Company and constitutes
a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and equitable
principles of general applicability. The Notes have been duly authorized by
the Company and, when executed, issued and delivered pursuant hereto for
value received, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(c) No Conflicting Agreements. The execution, delivery and performance
of this Agreement and the execution, issuance, delivery and performance of
the Notes will not conflict with any provision of (i) the restated
certificate of incorporation or by-laws of the Company or (ii) any
indenture, loan agreement or other similar agreement or instrument binding
on the Company.
(d) Governmental Approvals. No authorization, consent or approval of
any governmental body or agency is required for the valid execution,
delivery and performance of this Agreement by the Company or for the valid
execution, issuance, delivery and performance of the Notes by the Company.
(e) Proceedings. To the knowledge of the Company, there is no
proceeding pending or threatened before any court or administrative agency
which, in the opinion of the Company, will result in a final determination
which would have the effect of preventing the Company from carrying on its
business or from meeting its current and anticipated obligations on a
timely basis.
(f) Financial Position. The consolidated balance sheets of the Company
and its subsidiaries as of December 31, 1992 and 1993, and the related
consolidated statements of income, stockholders' equity
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and cash flows for each of the years in the three-year period ended
December 31, 1993, certified by KPMG Peat Marwick, present fairly the
consolidated financial position of the Company and its subsidiaries at
December 31, 1992 and 1993 and the results of their operations and
their cash flows for each of the years in the three-year period ended
December 31, 1993, in conformity with generally accepted accounting
principles applied on a consistent basis. Since December 31, 1993,
there has been no material adverse change in the consolidated financial
position or results of operations of the Company and its subsidiaries
which would have the effect of preventing the Company from carrying on
its business or from meeting its current and anticipated obligations on
a timely basis.
(g) Ownership of Property. The Company and each of its subsidiaries
has valid and defensible title to any of their properties described as
Proved Reserves in the Engineer's Opinion delivered to the Banks prior to
the date hereof, or as the case may be, the most recent Engineer's Opinion
provided pursuant to Section 4.01, free and clear of any Liens except as
permitted in Section 1005 of the Public Indenture.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Covenants. The Company covenants and agrees that, from the
date of this Agreement and for so long as any of the Notes shall be outstanding
or any of the Banks shall have any Commitments:
(a) Financial Statements, Etc. The Company will furnish to each Bank:
(i) within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
the Company is not required to file information, documents or reports
pursuant to either of said Sections, then such of the supplementary and
periodic information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations; (ii) within 60
days after the close of each of the first three quarters of each of the
Company's fiscal years a statement by a responsible officer of the Company
stating whether to the knowledge of the Company an event has occurred
during such period and is continuing which constitutes an Event of Default
or would constitute an Event of Default with the giving of notice or the
lapse of time, or both, and, if so, stating the facts with respect thereto;
(iii) within 120 days after the close of each of the Company's fiscal years
a statement by a responsible officer of the Company stating whether to the
knowledge of the Company an event has occurred during such period and is
continuing which constitutes an Event of Default or would constitute an
Event of Default with the giving of notice or the lapse of time, or both,
and, if so, stating the facts with respect thereto; (iv) within five
Business Days after the Company becomes aware of the occurrence of any
event which constitutes an Event of Default, or would constitute an Event
of Default with the passage of time or the giving of notice, or both, if
such occurrence is then continuing, notice of such occurrence together with
a statement by a responsible officer of the Company stating the facts with
respect thereto; and (v) such other information respecting the financial
condition or operations of the Company and its subsidiaries as any Bank may
from time to time reasonably request.
(b) Engineer's Report. The Company will furnish to each Bank subject
to Section 8.02, on or before March 1 in each year, an Engineer's Opinion.
The Engineer's Opinion shall, subject to the proviso below, (i) be
certified by a responsible officer of the Company as a true, correct and
complete report containing no material misstatements or misrepresentations
and (ii) cover 100% of the Proved Reserves of the Company (or such lesser
amount as may be agreed upon by the Agent and the Determining Banks),
calculated as of the January 1 preceding such March 1, provided, however,
that if as of January 1 (i) neither of the ratings by Moodys and S&P of the
Company's long term senior unsecured debt is greater than "BBB-" or
equivalent rating, but such ratings are not both less than "BBB-" or
equivalent rating and upon the written request of the Majority Banks or
(ii) Moodys and S&P both rate the
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Company's long term senior unsecured debt less than "BBB-" or
equivalent rating, the Engineer's Opinion shall be issued by an
Independent Engineer on the greater of (i) each field that represents
more than 2% of the total Proved Reserves of the Company or (ii) at
least 50% of the Proved Reserves of the Company. For purposes of this
Section 4.01, in the event a rating is not available from either Moodys
or S&P, such rating agency will be deemed to have assigned its lowest
rating.
(c) Limitations on Sales and Leasebacks. The Company will not itself,
and will not permit any subsidiary to, enter into any arrangement with any
bank, insurance company or other lender or investor (not including the
Company or any subsidiary) or to which any such lender or investor is a
party, providing for the leasing by the Company or a subsidiary for a
period, including renewals, in excess of three years, of any Principal
Property (as defined in the Public Indenture) which has been or is to be
sold or transferred more than 180 days after the completion of construction
and commencement of full operation thereof, by the Company or any
subsidiary to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of
such Principal Property (herein referred to as a "sale and leaseback
transaction") unless either:
(i) the Company or such subsidiary could create Indebtedness
secured pursuant to Section 1005 of the Public Indenture on the
Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to the lease resulting from such sale and
leaseback transaction without equally and ratably securing the Notes; or
(ii) the Company within 180 days after the sale or transfer shall
have been made by the Company or by a subsidiary, applies an amount
equal to the greater of (A) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or
(B) the net amount (after deducting applicable reserves) at which such
Principal Property is carried on the books of the Company or such
subsidiary at the time of entering into such arrangement, to the
retirement of Indebtedness of the Company.
(d) Compliance with Indenture. The Company will comply with the
provisions of Sections 1004 and 1005 of the Public Indenture (a true and
complete copy of which the Company hereby represents has been furnished to
each Bank), which provisions, together with related definitions, are hereby
incorporated herein by reference for the benefit of the Banks and shall
continue in effect for purposes of this Section 4.02 regardless of
termination, or any amendment or waiver of, or any consent to any deviation
from or other modification of, the Public Indenture; provided, however,
that, for purposes of this Section 4.02, (a) references in the Public
Indenture to "the Securities" shall be deemed to refer to the obligations
of the Company to pay the principal of and interest on the Notes, (b)
references in the Public Indenture to "the Trustee" shall be deemed to
refer to the Agent, (c) references in the Public Indenture to "this
Indenture" shall be deemed to refer to this Agreement and (d) references in
the Public Indenture to "supplemental indentures" shall be deemed to refer
to supplements to this Agreement.
(e) Limitation on Mortgages. The Company will not incur, issue, assume
or guarantee any indebtedness secured by a mortgage on oil, gas, coal or
other minerals in place, or on related leasehold or other property
interest, which is incurred to finance development or production costs if
the aggregate amount of all such indebtedness exceeds 10% of Consolidated
Net Tangible Assets (as defined in the Public Indenture).
(f) Consolidated Stockholders' Equity. The Company will maintain, at
the end of each calendar quarter, Consolidated Stockholders' Equity of at
least $650,000,000 exclusive of the effect of any noncash writedowns made
subsequent to the date hereof.
(g) Current Ratio. The Company will maintain, at the end of each
calendar quarter, consolidated current assets plus the Commitments minus
the then outstanding Loans in an amount at least equal to its consolidated
current liabilities.
(h) Notice of Dispositions of Property. The Company shall promptly
notify the Agent of any sales, transfers, distributions or other
dispositions during any calendar year resulting in the receipt of Net
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Proceeds in an aggregate amount in excess of $50,000,000 of property
identified in the most recent Engineer's Opinion delivered pursuant to
Section 4.01.
(i) Insurance. The Company will at all times maintain, with
financially sound and reputable insurers, insurance of the kinds, covering
the risks and in the relative proportionate amounts customarily carried by
companies engaged in the same or similar business and similarly situated.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions Precedent to the Initial Loans. The obligation of
each Bank to make its initial Loan is subject to the conditions precedent that
each Bank and the Agent shall have received on or before the date of the initial
Loan:
(a) An appropriate Note payable to its order.
(b) Certified copies of the resolutions of the Board of Directors or
the Executive Committee of the Board of Directors of the Company
authorizing the execution, delivery and performance of this Agreement and
the execution, issuance, delivery and performance of the Notes.
(c) An opinion of Messrs. Davis Polk & Wardwell, special counsel to
the Company, to the effect that:
(i) the Company is validly existing and in good standing under the
laws of the State of Delaware;
(ii) this Agreement and the Notes have been duly authorized,
executed and delivered by the Company;
(iii) this Agreement constitutes a valid and binding agreement of
the Company and the Notes constitute valid and binding obligations of
the Company, in each case enforceable in accordance with their
respective terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
equitable principles of general applicability;
(iv) the execution, delivery and performance by the Company of this
Agreement and the Notes will not conflict with the restated certificate
of incorporation or by-laws of the Company, each as in effect on the
date of such opinion; and
(v) no authorization, consent or approval of any governmental body
or agency of the State of New York or the United States of America which
has not been obtained is required in connection with the execution,
delivery and performance by the Company of this Agreement and the Notes.
In rendering such opinion, Messrs. Davis Polk & Wardwell may rely upon
opinions of local counsel as to matters of local law and may state that
they have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by them to be
responsible.
(d) A favorable opinion of the General Counsel or General Attorney of
the Company, to the effect that:
(i) the Company is qualified to do business as a foreign
corporation and is in good standing in the States of Kansas, Louisiana,
Montana, New Mexico, Oklahoma, Texas and Wyoming;
(ii) the execution, delivery and performance of this Agreement and
the execution, issuance, delivery and performance of the Notes will not
(x) contravene any applicable provision of any applicable law or
applicable order or (y) conflict with any provision of any indenture,
loan agreement or other similar agreement or instrument known to such
counsel (having made due inquiry with respect thereto) binding on the
Company or affecting its property, and
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(iii) to the knowledge of such counsel (having made due inquiry
with respect thereto), there is no proceeding pending or threatened
before any court or administrative agency which, in the opinion of such
counsel, will result in a final determination which would have the
effect of preventing the Company from carrying on its business or from
meeting its current and anticipated obligations on a timely basis.
In rendering such opinion, the General Counsel or General Attorney of the
Company shall opine only as to matters governed by the Federal laws of the
United States of America, the laws of the State of Texas and the General
Corporation Law of the State of Delaware. Such counsel may also state that
he has relied on certificates of state officials as to qualification to do
business and good standing, certificates of officers of the Company and
other sources believed by him to be responsible.
(e) A copy of a written irrevocable notice from the Company
terminating the Commitments, as defined in the Credit Agreement and
directing the Agent, as defined in the Credit Agreement, to prepay by wire
transfer, in immediately available funds, in full any loans then
outstanding thereunder, together with accrued interest thereon and any
unpaid commitment fees then accrued.
(f) A certificate of a responsible officer of the Company to the
effect that:
(i) the representations and warranties contained in Section 3.01
are true and accurate on and as of the date of the making of each such
Loan as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date);
(ii) no event has occurred and is continuing or would result from
the proposed borrowing, which constitutes an Event of Default or would
constitute an Event of Default with the giving of notice or lapse of
time, or both;
(iii) the Company is in compliance with all the terms, covenants
and conditions of this Agreement which are binding upon it; and
(iv) after giving effect to the proposed borrowing of which such
Loan is a part and the application of the proceeds thereof, the
Available Borrowing Base would not be less than zero.
SECTION 5.02. Conditions Precedent to Loans. The obligation of each Bank to
make any Loan is subject to the further conditions precedent that on the
relevant Borrowing Date clauses (i) through (iv) in subsection (f) of Section
5.01 shall be true and such borrowing shall be deemed to constitute a
certification by the Company that such statements are true.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If one or more of the following events of
default ("Events of Default") shall occur and be continuing:
(a) the Company shall default in any payment of principal of any Loan
when due and such default shall continue for a period of 3 days; or the
Company shall default in any payment of interest on any Loan, or in the
payment of any commitment fees pursuant to Section 2.04, when due and
payable, and such default shall continue for a period of 10 days;
(b) any representation or warranty, or certification made by the
Company herein or any statement or representation or certification made or
deemed to be made pursuant to Article V of this Agreement shall prove to
have been incorrect in any material respect when made;
(c) the Company shall default in the performance of any other term,
condition, covenant or agreement contained in this Agreement and such
default shall continue unremedied for a period of 30 days after written
notice thereof, specifying such default and requiring it to be remedied,
shall have been received by the Company from any Bank,
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(d) the Company shall default in the performance of any term,
condition, covenant or agreement contained in the Public Indenture and such
default shall have resulted in any of the Securities (as defined in the
Public Indenture) being declared due and payable prior to the date on which
such Securities would otherwise have become due and payable;
(e) the Company or any subsidiary shall (i) default in the payment of
principal of any Indebtedness in an aggregate principal amount in excess of
$25,000,000 (other than the Notes) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or (ii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist unremedied or unwaived, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, but without the
passage of any additional time, such Indebtedness to become due prior to
its stated maturity,
(f) the Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of its property, (ii) admit in writing its
inability to pay its debts as such debts become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary case
under the federal Bankruptcy Code (as now or hereafter in effect), (v) file
a petition seeking to take advantage of any other law providing for similar
relief of debtors, or (vi) consent or acquiesce in writing to any petition
duly filed against it in any involuntary case under such Bankruptcy Code;
(g) a proceeding or case shall be commenced, without the application
or consent of the Company, in any court of competent jurisdiction seeking
(i) its liquidation, reorganization, dissolution or winding up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of it or of its
assets, or (iii) similar relief in respect of it, under any law providing
for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of 60 days (or such
longer period, so long as the Company shall be taking such action in good
faith as shall be reasonably necessary to obtain the timely dismissal or
stay of such proceeding or case); or an order for relief shall be entered
in an involuntary case under the federal Bankruptcy Code (as now or
hereafter in effect), against the Company, or
(h) any Change in Control shall occur,
then and in each and every case the Majority Banks, by notice in writing to the
Company, may terminate the Commitments of the Banks hereunder and/or declare the
unpaid balance of the Notes and any other amounts payable hereunder to be
forthwith due and payable and thereupon such balance shall become so due and
payable without presentation, protest or further demand or notice of any kind,
all of which are hereby expressly waived; provided that in the case of clause
(f) or (g) above the Commitments of the Banks hereunder shall automatically
terminate and the Notes and any other amounts payable hereunder shall forthwith
be due and payable.
ARTICLE VII
THE AGENT AND THE DETERMINING BANKS
SECTION 7.01. Powers. Each Bank hereby irrevocably appoints and authorizes
the Agent to act as its agent hereunder. The Agent and the Determining Banks
shall have and may exercise such powers hereunder and under any agreement
executed and delivered pursuant to the terms hereof as are specifically
delegated to the Agent or the Determining Banks, as the case may be, by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. The Agent and the Determining Banks will have no duties or
responsibilities except those expressly set forth in this Agreement, and shall
not by reason of this Agreement have a fiduciary relationship with any Bank.
20
<PAGE> 24
SECTION 7.02. Agent's Reliance, Etc. In performing its duties as Agent or a
Determining Bank hereunder and under any agreement executed and delivered
pursuant to the terms hereof, the Agent and each Determining Bank will take the
same care as it takes in connection with loans in which it alone is interested.
However, neither the Agent nor the Determining Banks nor any of their directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by them hereunder or thereunder or in connection herewith or therewith
except for their own gross negligence or willful misconduct.
SECTION 7.03. No Responsibility for Recitals, Etc. The Agent and the
Determining Banks will not be responsible to the Banks for any recitals,
statements, warranties or representations herein or under any agreement executed
and delivered pursuant to the terms hereof, for the value, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, the Notes or any
agreement executed and delivered pursuant hereto or be bound to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement on the part of the Company or of any of the terms of any such other
agreement by any party thereto.
SECTION 7.04. Right to Indemnity. The Agent shall be fully justified in
failing or refusing to take any action hereunder or under any agreement executed
and delivered pursuant to the terms hereof unless it shall first be indemnified
(upon requesting such indemnification) to its satisfaction by the Banks against
any and all liability and expense which it may incur by reason of taking or
continuing to take any such action. The Banks agree to indemnify the Agent and
the Determining Banks, to the extent not reimbursed by the Company under this
Agreement, ratably in accordance with the aggregate principal amount of the
Loans made by them (or, if no Loans are outstanding, ratably in accordance with
their respective Commitments), for any and all liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent as agent or the Determining Banks, as the case may
be, in any way relating to or arising out of this Agreement, the Notes or any
other documents contemplated by or referred to herein or the transactions
contemplated hereby (including, without limitation, the costs and expenses which
the Company is obligated to pay under this Agreement but excluding, unless an
Event of Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents; provided no such liability, obligation, damage, penalty, action,
judgment, suit, cost, expense or disbursement results from the Agent's or the
Determining Banks', as the case may be, gross negligence or willful misconduct;
provided, however, that, in the event the Agent receives indemnification from
the Banks hereunder with respect to costs and expenses which the Company is
obligated to pay under this Agreement, the Agent shall remit to the Banks the
amount of such costs and expenses to the extent subsequently paid by the
Company, such remittance to be in accordance with the proportionate amount of
the indemnification made by each respective Bank.
SECTION 7.05. Action on Instructions of Banks. The Agent shall in all cases
be fully protected in acting or refraining from acting hereunder or under any
agreement executed and delivered pursuant to the terms hereof in accordance with
written instructions to it signed by the Majority Banks, and (subject to Section
8.01) such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
SECTION 7.06. Employment of Agents. The Agent and the Determining Banks may
employ agents and attorneys-in-fact and shall not be answerable, except as to
money or securities received by them or their authorized agents, for the default
or misconduct of any such agent or attorney-in-fact selected by it with
reasonable care.
SECTION 7.07. Reliance on Documents. The Agent and each Determining Bank
shall be entitled to rely upon (a) any paper or document believed by it to be
genuine and to have been signed or sent by the proper person or persons and (b)
the opinion of its counsel with respect to legal matters. The Agent and the
Determining Banks may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until a notice of the assignment or transfer
thereof satisfactory to the Agent signed by such payee shall have been filed
with the Agent.
21
<PAGE> 25
SECTION 7.08. Rights as a Bank. With respect to its Commitment and the
Loans made by it, the Agent and each Determining Bank shall have the same rights
and powers hereunder and under any agreement executed and delivered pursuant to
the terms hereof as any Bank and may exercise the same as though it were not the
Agent or Determining Bank, as the case may be, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the Agent and each
Determining Bank in its capacity as a Bank hereunder and thereunder. The Agent
and the Determining Banks and their respective affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with the Company, its subsidiaries and its affiliates as if it were not
the Agent or a Determining Bank, as the case may be.
SECTION 7.09. Non-Reliance on Agent or other Banks. Each Bank agrees that
it has, independently and without reliance on the Agent or on any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Company and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or the Notes. The Agent and the Determining
Banks will not be required to keep themselves informed as to the performance or
observance by the Company of this Agreement or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company or which
may at any time come into possession of the Agent or any of its affiliates.
SECTION 7.10. Events of Default. In the event the Agent receives actual
knowledge of an Event of Default hereunder, the Agent shall promptly inform the
Banks thereof. The Agent shall not be deemed to have actual knowledge of an
Event of Default hereunder until it shall have received a written notice from
the Company or any Bank referring to this Agreement, describing such Event of
Default and stating that such notice is a "Notice of Default".
SECTION 7.11. Successor Agent. If the Agent shall resign as Agent under
this Agreement, or shall cease to be a Bank under this Agreement, then the Banks
shall appoint any Bank which is a party to this Agreement (with the consent of
such Bank) as successor Agent for the Banks under this Agreement, whereupon such
successor Agent shall succeed to the rights, powers and duties of the Agent, and
the former Agent's rights, powers and duties as Agent shall be terminated and
cancelled, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Modifications, Consents and Waivers. To the extent permitted
by law, no failure or delay on the part of the Banks in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power hereunder. No
modification or waiver of any provision of this Agreement or of the Notes nor
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be in writing and signed by the Majority Banks,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given; provided, however, that no such
modification, waiver or consent may be made which will (a) extend the time for
payment of principal of or interest on any Note or reduce the principal amount
of or rate of interest on any Note or otherwise affect the terms of payment of
the principal of or interest on any Note without the written consent of the
holder of such Note or (b) affect the terms of or reduce the amount of the
commitment fee or reduce the percentages of 66 2/3% and 75% specified in the
definition of "Majority Banks" or amend the provisions of this Section 8.01
without the written consent of the holders of all Notes at the time outstanding
(or, if no Notes are then outstanding, all of the Banks). No notice to or demand
on the Company in any case shall, of itself, entitle the Company to any other or
further notice or demand in similar or other circumstances.
22
<PAGE> 26
SECTION 8.02. Confidentiality. Each Bank shall maintain in confidence and
not publish, disseminate or disclose in any manner or to any Person and shall
not use any nonpublic information relating to the Company and its subsidiaries
which may be furnished pursuant to this Agreement (hereinafter collectively
called "Confidential Information"), subject to each Bank's (a) obligation to
disclose any such Confidential Information pursuant to a request or order under
applicable laws and regulations or pursuant to a subpoena or other legal
process, (b) right to disclose any such Confidential Information to bank
examiners, its affiliates, auditors, counsel and other professional advisors,
(c) right to use any such Confidential Information in connection with evaluating
the transactions set forth herein, and (d) right to disclose any such
Confidential Information in connection with any litigation involving the Banks
and the Company, provided, however, that Confidential Information disclosed
pursuant to clause (b) or (d) of this sentence shall be so disclosed subject to
such procedures as are reasonably calculated to maintain the confidentiality
thereof, and provided, further, that Confidential Information disclosed pursuant
to applicable laws, regulations, subpoenas or other legal process shall be so
disclosed subject to such confidentiality provisions, if any, as may be provided
under applicable law. The Banks agree, to the extent permitted by applicable
law, to use their best efforts promptly to notify the Company in writing of each
order, subpoena or other legal process providing for the disclosure and/or
production of Confidential Information and shall, to the extent permitted by
applicable law, use their best efforts promptly to supply the Company with a
copy of such order, subpoena or other legal process, in order that the Company
may intervene in the relevant administrative or legal proceeding or take other
appropriate legal action to protect the confidentiality of such Confidential
Information.
SECTION 8.03. Addresses for Notices. Except as otherwise provided herein,
all communications and notices provided for hereunder shall be in writing and,
if to the Company, mailed to P.O Box 1330, Houston, Texas 77251-1330 Attention:
Treasurer, and, if to the Agent, delivered or mailed to 270 Park Avenue, New
York, New York 10017 (Attention: Energy Division), and, if to any Bank,
delivered or mailed to its address as set forth on the signature pages hereof,
or, as to any party, at such other address as such party may designate in
writing to each party concerned. Except as otherwise provided herein, all
communications and notices provided for hereunder shall be effective when
deposited in the mails, postage prepaid, or delivered to the telegraph company,
addressed as aforesaid.
SECTION 8.04. Costs, Expenses and Taxes. The Company agrees to pay all
costs and expenses in connection with the preparation, execution and delivery of
this Agreement and the Notes (including the reasonable fees of Messrs. Simpson
Thacher & Bartlett, special counsel to the Agent) and costs and expenses, if
any, in connection with the enforcement of this Agreement and the Notes, as well
as any and all stamp and other taxes payable or determined to be payable in
connection with the execution or delivery of this Agreement or the Notes, and to
save the holders of the Notes harmless from any and all liabilities with respect
to or resulting from any delay or omission to pay such taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of this Agreement or the Notes.
SECTION 8.05. Binding Effect and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Company and the Banks and their
respective successors and assigns, except that the Company may not assign or
transfer its rights hereunder without prior written consent of the Banks. A Bank
may not assign or transfer its rights hereunder, subject to any legal or
regulatory requirements, without prior written consent of the Company, provided,
however, that each Bank may at any time grant participations in its Loans and
its Commitment ("Participations") to other Persons (such Persons being herein
called "Participants"). The Company agrees that each Participant shall be deemed
to be a "Bank" for purposes of Sections 2.12(a), 2.14 and 2.20 with respect to
its Participations outstanding from time to time. Each Bank agrees with the
Company that (a) each such Participation shall be created in the ordinary course
of the commercial banking business of such Bank and (b) such Participation shall
be created by such Bank in compliance with all applicable laws. Each Bank agrees
that the creation of Participations shall require no action on the part of the
Company. The creation of a Participation shall not give any Participant any
rights under this Agreement or any Note nor shall it relieve any Bank of its
obligations under this Agreement. Each assignment will be subject to the payment
of a service fee of $3,000 to the Agent by the parties to such assignment.
SECTION 8.06. Termination and Substitution of Bank. (a) If (i) the
obligation of any Bank to make, convert Loans into or continue Eurodollar Loans
has been suspended pursuant to Section 2.13 or (ii) any
23
<PAGE> 27
Bank has demanded compensation under Section 2.12, the Company may, upon three
Business Days' notice to such Bank through the Agent, prepay in full all of the
outstanding Loans of such Bank, or its assignee, together with accrued interest
thereon to the date of prepayment and all other amounts payable hereunder to
such Bank accrued to the date of prepayment, and concurrently therewith
terminate this Agreement with respect to such Bank by giving notice of such
termination to the Agent and such Bank.
(b) If any Bank shall become a Defaulting Bank, the Company may, in its
sole discretion and without prejudice to any right or remedy that the Company
may have against such Defaulting Bank with respect to, on account of, arising
from or relating to any event pursuant to which such Bank shall be a Defaulting
Bank, upon notice to such Defaulting Bank and the Agent, (i) if at such time
there are no Loans of such Defaulting Bank outstanding, terminate this Agreement
with respect to such Defaulting Bank, or (ii) if at such time such Defaulting
Bank shall have Loans outstanding, subject to obtaining a substitute bank or
banks to assume the Commitment of such Defaulting Bank pursuant to subsection
(c) below, terminate this Agreement with respect to such Defaulting Bank and
prepay in full the outstanding Loans of such Defaulting Bank together with
accrued interest to the date of prepayment, provided that the provisions of
Section 2.20 shall not apply to any such prepayment.
(c) If the Company terminates this Agreement with respect to any Bank under
this Section 8.06, the Company shall use its best efforts, with the assistance
of the Agent, to seek a mutually satisfactory substitute bank or banks (which
may be one or more of the Banks) to assume the Commitment of such relevant Bank.
SECTION 8.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.08. Headings. Article and Section headings used in this Agreement
are for convenience only and shall not affect the construction of this
Agreement.
SECTION 8.09. Execution in Counterparts. This Agreement may be executed by
the parties hereto individually or in any combinations of the parties hereto in
several separate counterparts, each of which shall be an original, and all of
which taken together shall constitute one and the same agreement.
24
<PAGE> 28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ANADARKO PETROLEUM CORPORATION
By: A. L. Richey
Title: Treasurer
CHEMICAL BANK
By: Peter N. Anderson
Title: Managing Director
Domestic Lending Office and Address
for Notices:
Chemical Bank
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: John Gehebe
Phone: (212) 270-3531
Fax: (212) 270-4892
Eurodollar Lending Office:
Chemical Bank
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: John Gehebe
Phone: (212) 270-3531
Fax: (212) 270-4892
25
<PAGE> 29
THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION
By: Bettylou J. Robert
Title: Vice President
Domestic Lending Office and Address
for Notices:
The Chase Manhattan Bank, National
Association
1 Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attention: Global Energy
Mr. Vito Cipriano
Fax: (212) 552-1687
with copies to:
Chase Manhattan Southwest
1100 Milam
Suite 2345
Houston, Texas 77002
Attention: Mr. Richard S. Walker
Fax: (713) 751-9122
Eurodollar Lending Office:
The Chase Manhattan Bank, National
Association
1 Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attention: Global Energy
Mr. Vito Cipriano
Fax: (212) 552-1687
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: Vernon M. Ford, Jr.
Title: Vice President
Domestic Lending Office and Address
for Notices:
Morgan Guaranty Trust Company of New
York
60 Wall Street
22nd Floor
New York, New York 10260
Attention: Jeannie Mattson
26
<PAGE> 30
Eurodollar Lending Office:
J. P. Morgan Delaware
902 Market Street
Wilmington, Delaware 19801
Attention: Loan Department
Telex
Number/Answerback:
177425/NBDELUT
THE BANK OF NEW YORK
By: Renee Biglani
Title: Vice President
Domestic Lending Office and Address
for Notices:
The Bank of New York
Attention: Brad Davis and/or
Commercial Loan
Department
1 Wall Street
19th Floor
New York, New York 10286
Eurodollar Lending Office:
The Bank of New York
Attention: Eurodollar/Cayman
Islands Funding Area
101 Barclay St.
New York, New York 10286
Ref: Anadarko Petroleum Corporation
CONTINENTAL BANK N.A.
By: R. R. Ingersoll
Title: Vice President
Address for Notices:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: R. R. Ingersoll
Domestic Lending Office:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Kathy Hill-Rayford
27
<PAGE> 31
Eurodollar Lending Office:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Kathy Hill-Rayford
CREDIT SUISSE
By: William P. Murray
Title: Member of Senior Management
By: Eristinn R. Kristinsson
Title: Associate
Domestic Lending Office and Address
for Notices:
Credit Suisse
Tower 49
12 East 49th Street
New York, New York 10017
Attention: Credit Department,
Kris Kristinsson
Eurodollar Lending Office:
Credit Suisse
Tower 49
12 East 49th Street
New York, New York 10017
Attention: Credit Department,
Kris Kristinsson
28
<PAGE> 32
MELLON BANK, N.A.
By: Mary Elles Usher
Title: Vice President
Domestic Lending Office and Address
for Notices:
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2301
Pittsburgh, Pennsylvania 15259
Attention: Loan Administration
with copies to:
Mellon Bank, N.A.
1100 Louisiana Street
Suite 3600
Houston, Texas 77002
Attention: Janet Jenkins
One Mellon Bank Center
44th Floor
Pittsburgh, Pennsylvania 15258
Attention: Energy & Utilities
Group
Eurodollar Lending Office:
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2301
Pittsburgh, Pennsylvania 15259
Attention: Loan Administration
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: David Sisler
Title: Vice President
Domestic Lending Office and Address
for Notices:
Bank of America National Trust and
Savings Association
1850 Gateway Blvd.
Concord, California 94520
Eurodollar Lending Office:
Bank of America National Trust and
Savings Association
1850 Gateway Blvd.
Concord, California 94520
29
<PAGE> 33
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: Xavier Ratouis
Title: Authorized Signature
Address for Notices:
c/o Credit Lyonnais Houston
Representative Office
1000 Louisiana Street #5360
Houston, TX 77002
Attention: W. Keith Buchanan
Fax: (713) 751-0307
Domestic Lending Office:
Credit Lyonnais Cayman Island Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
Eurodollar Lending Office:
Credit Lyonnais Cayman Island Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
THE FIRST NATIONAL BANK OF CHICAGO
By: Martha Redeck Smith
Title: Vice President
Domestic Lending Office and Address
for Notices:
The First National Bank of Chicago
One First National Plaza
Suite 0634, 10th Floor
Chicago, Illinois 60670
Attention: Edward Milka
Phone (312) 732-8573
Fax: (312) 732-4840
Telex: 190201; Ansback
FNBCUT
Eurodollar Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0634, 10th Floor
Chicago, Illinois 60670
Attention: Edward Milka
Phone (312) 732-8573
Fax: (312) 732-4840
Telex: 190201; Ansback
FNBCUT
30
<PAGE> 34
NATIONSBANK OF TEXAS, N.A.
By: Paul A. Squirs
Title: Senior Vice President
Domestic Lending Office and Address
for Notices:
NationsBank of Texas, N.A.
P.O. Box 830104
Dallas, Texas 75283-0104
Attention: Vicky McConnell
Eurodollar Lending Office:
NationsBank of Texas, N.A.
P.O. Box 830104
Dallas, Texas 75283-0104
Attention: Vicky McConnell
CHEMICAL BANK, as Agent
By: Peter N. Anderson
Title: Managing Director
Address: 270 Park Avenue
New York, New York 10017
Attention: Energy Division
31
<PAGE> 35
EXHIBIT A
[FORM OF NOTE]
$______*______ New York, New York
__________________, 1994
For value received, ANADARKO PETROLEUM CORPORATION, a Delaware corporation
(the "Company"), promises to pay on the Termination Date, to the order of
____________________ (the "Bank") at the office of Chemical Bank specified in
Section 2.11 of the Revolving Credit Agreement, dated as of May 24, 1994, among
the Company, the Bank, the several other banks party thereto and Chemical Bank,
as agent (as amended, supplemented or modified from time to time hereafter, the
"Agreement"; terms defined in the Agreement shall have their defined meanings
when used in this Note), in lawful money of the United States of America, the
principal amount of ______*______ DOLLARS ($______*______) or, if less than such
principal amount, the aggregate unpaid principal amount of all Loans made by the
Bank to the undersigned pursuant to Section 2.01 of the Agreement. The
undersigned further agrees to pay interest at said office, in like money, on the
unpaid principal amount owing hereunder from time to time from the date hereof
at the rates specified in Section 2.09 of the Agreement. Such interest shall be
payable on the dates specified in Section 2.09 of the Agreement. The date, Type
and amount of each Loan made by the Bank pursuant to Section 2.01 of the
Agreement, each continuation thereof, each conversion of all or a portion
thereof to another Type and the date and amount of each payment of principal
with respect thereto shall be endorsed by the holder of this Note on Schedule A
annexed hereto, which holder may add additional pages to such Schedule. No
failure to make or error in making any such endorsement as authorized hereby
shall affect the validity of the obligations of the Company hereunder or the
validity of any payment hereof made by the Company.
This Note is one of the Notes referred to in the Agreement and is entitled
to the benefits thereof and is subject to prepayment in whole or in part as
provided therein.
Upon the occurrence of any one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note may be declared
to be immediately due and payable as provided in the Agreement.
ANADARKO PETROLEUM CORPORATION
By __________________________________
Title:
______________
* Insert amount of Bank's Commitment
32
<PAGE> 36
SCHEDULE A
LOANS AND REPAYMENTS
<TABLE>
<CAPTION>
========================================================================================================================
AMOUNT TYPE AMOUNT OF
OF OF INTEREST PRINCIPAL NOTATION
DATE LOAN LOAN RATE REPAID MADE BY
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-1
<PAGE> 37
PAGE ... OF
SCHEDULE A
<TABLE>
<CAPTION>
========================================================================================================================
AMOUNT TYPE AMOUNT OF
OF OF INTEREST PRINCIPAL NOTATION
DATE LOAN LOAN RATE REPAID MADE BY
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-2
<PAGE> 1
(CONFORMED COPY)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ANADARKO PETROLEUM CORPORATION
---------------------
364-DAY CREDIT AGREEMENT
---------------------
DATED AS OF MAY 24, 1994
---------------------
$150,000,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Defined Terms............................................................ 1
1.02 Use of Defined Terms..................................................... 6
1.03 Accounting Terms......................................................... 6
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.01 Loans.................................................................... 7
2.02 Notes.................................................................... 7
2.03 Procedure for Borrowing.................................................. 7
2.04 Commitment Fees.......................................................... 7
2.05 Reduction, Termination or Extension of Commitments....................... 8
2.06 Optional Prepayments..................................................... 9
2.07 Mandatory Prepayments.................................................... 9
2.08 Repayment of Loans....................................................... 9
2.09 Interest Rate............................................................ 9
2.10 Computation of Interest and Fees......................................... 10
2.11 Pro Rata Treatment and Payments.......................................... 10
2.12 Increased Cost of Loans.................................................. 11
2.13 Illegality............................................................... 12
2.14 Withholding Tax Exemption................................................ 12
2.15 Substitute Loan Basis.................................................... 13
2.16 Determination of Borrowing Base.......................................... 14
2.17 Certain Prepayments or Conversions Pursuant to Sections 2.12 and 2.13.... 14
2.18 Certain Notices.......................................................... 14
2.19 Use of Proceeds.......................................................... 15
2.20 Indemnity................................................................ 15
2.21 Minimum Amounts of Tranches.............................................. 15
2.22 Conversion and Continuation Options...................................... 15
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties by the Company............................ 16
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01 Covenants................................................................ 17
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01 Conditions Precedent to the Initial Loans................................ 18
5.02 Conditions Precedent to Loans............................................ 20
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default........................................................ 20
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C> <C>
ARTICLE VII
THE AGENT AND THE DETERMINING BANKS
SECTION 7.01 Powers................................................................... 21
7.02 Agent's Reliance, Etc.................................................... 21
7.03 No Responsibility for Recitals, Etc...................................... 21
7.04 Right to Indemnity....................................................... 22
7.05 Action on Instructions of Banks.......................................... 22
7.06 Employment of Agents..................................................... 22
7.07 Reliance on Documents.................................................... 22
7.08 Rights as a Bank......................................................... 22
7.09 Non-Reliance on Agent or other Banks..................................... 22
7.10 Events of Default........................................................ 23
7.11 Successor Agent.......................................................... 23
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Modifications, Consents and Waivers...................................... 23
8.02 Confidentiality.......................................................... 23
8.03 Addresses for Notices.................................................... 24
8.04 Costs, Expenses and Taxes................................................ 24
8.05 Binding Effect and Assignment............................................ 24
8.06 Termination and Substitution of Bank..................................... 24
8.07 Governing Law............................................................ 25
8.08 Headings................................................................. 25
8.09 Execution in Counterparts................................................ 25
EXHIBIT A Form of Note............................................................. A-1
EXHIBIT B Extension Agreement...................................................... B-1
</TABLE>
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<PAGE> 4
364-DAY CREDIT AGREEMENT
DATED AS OF MAY 24, 1994
ANADARKO PETROLEUM CORPORATION, a Delaware corporation (the "Company"), the
Banks listed under "Commitment" in Section 1.01 (individually a "Bank" and
collectively the "Banks") and Chemical Bank, as Agent, do hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. As used in this Agreement, and unless the
context otherwise requires, the following terms shall have the meanings set out
respectively after each:
"Adjusted CD Rate" -- With respect to any Interest Period for a CD
Rated Loan, the sum of (a) the quotient (rounded upwards, if necessary, to
the next higher 1/100 of 1%) obtained by dividing the CD Rate by 1.00 minus
the Reserve Percentage and (b) the Assessment Rate. The Adjusted CD Rate
shall be adjusted automatically on and as of the effective date of any
change in the Reserve Percentage.
"Agent" -- Chemical Bank or its successor appointed pursuant to
Section 7.11.
"Agreement" -- This 364-Day Credit Agreement, as the same may be
amended, modified, supplemented or restated from time to time in accordance
with the terms hereof.
"Assessment Rate" -- With respect to any Interest Period for a CD
Rated Loan, the net annual assessment rate actually paid by Chemical to the
Federal Deposit Insurance Corporation (or any successor) for insurance by
such corporation (or such successor) of time deposits made in dollars at
offices of Chemical in the United States during the most recent period for
which such rate has been determined prior to the commencement of such
Interest Period.
"Attributable Debt" -- Any particular sale and leaseback transaction
under which the Company or any subsidiary is at the time liable, at any
date as of which the amount thereof is to be determined (a) in the case of
any such transaction involving a capital lease, the amount on such date
capitalized thereunder, or (b) in the case of any other sale and leaseback
transaction, the then present value of the minimum rental obligations under
such sale and leaseback transaction during the remaining term thereof
(after giving effect to any extensions at the option of the lessor)
computed by discounting the respective rental payments at the actual
interest factor included in such payments or, if such interest factor
cannot be readily determined, at the rate of 10% per annum. The amount of
any rental payment required to be made under any such sale and leaseback
transaction not involving a capital lease may exclude amounts required to
be paid by the lessee on account of maintenance and repairs, insurance,
taxes, assessments, utilities, operating and labor costs and similar
charges.
"Available Borrowing Base" -- At any time, the amount equal to the
difference obtained by subtracting from the Borrowing Base then in effect
the aggregate principal amount of all the outstanding Indebtedness of the
Company and its subsidiaries (including, without limitation, any then
outstanding Loans).
"Borrowing Base" -- At any time, the amount calculated by the
Determining Banks and approved by the Majority Banks as the Borrowing Base
and then in effect pursuant to Section 2.16; provided however, that from
the date hereof until such time as the Borrowing Base is so calculated and
approved and in effect, the Borrowing Base shall be $1,100,000,000.
"Borrowing Date" -- Each Working Day or Business Day, as the case may
be, specified in a notice pursuant to Section 2.03 as a date on which the
Company requests (or is deemed to have requested) the Banks to make Loans.
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<PAGE> 5
"Business Day" -- A day which in the City of New York is not a day on
which banks are generally authorized or obligated by law to close.
"CD Rate" -- With respect to any Interest Period for a CD Rated Loan,
the average rate per annum bid at 10:00 A.M. (New York City time), or as
soon thereafter as practicable, on the first day of such Interest Period by
New York certificate of deposit dealers of recognized standing for the
purchase at face value from the Reference Banks of their certificates of
deposit in an amount comparable to the portion of the CD Rated Loans of
Chemical to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"CD Rated Loans" -- Loans hereunder at such time as they bear interest
at a rate based upon the Adjusted CD Rate.
"Change in Control" -- (a) The acquisition by any Person or two or
more Persons acting in concert of beneficial ownership (within the meaning
of Rule 13d-3 of the Commission) of 50% or more of the outstanding shares
of voting stock of the Company unless the Board of Directors of the Company
shall have publicly announced its support for such acquisition or (b) a
majority of the members of the Board of Directors of the Company on any
date shall not have been (i) members of the Board of Directors of the
Company on the date 12 months prior to such date or (ii) approved by
Persons who constitute at least a majority of the members of the Board of
Directors of the Company as constituted on the date 12 months prior to such
date.
"Chemical" -- Chemical Bank.
"Commission" -- The Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Agreement such Commission is not
existing and performing the duties now assigned to it, then the body
performing such duties at such time.
"Commitment" -- As to each Bank, its obligation to make Loans to the
Company pursuant to Section 2.01 in the amount set forth opposite its name
below, as such obligation may be reduced pursuant to this Agreement:
<TABLE>
<CAPTION>
AMOUNT OF PERCENTAGE OF
BANK COMMITMENT COMMITMENT
---- ----------- -------------
<S> <C> <C>
Chemical Bank..................................... $ 18,000,000 12.0%
The Chase Manhattan Bank, National Association.... 15,000,000 10.0
Morgan Guaranty Trust Company of New York......... 15,000,000 10.0
The Bank of New York.............................. 12,750,000 8.5
Continental Bank N.A.............................. 12,750,000 8.5
Credit Suisse..................................... 12,750,000 8.5
Mellon Bank, N.A.................................. 12,750,000 8.5
Bank of America National Trust and Savings
Association..................................... 12,750,000 8.5
Credit Lyonnais Cayman Island Branch.............. 12,750,000 8.5
The First National Bank of Chicago................ 12,750,000 8.5
NationsBank of Texas, N.A......................... 12,750,000 8.5
Total................................... $150,000,000 100.0%
============ ==========
</TABLE>
"Consolidated Stockholders' Equity" -- The par or stated value of the
stock of the Company plus paid-in capital plus retained earnings, all as
shown on the consolidated balance sheet of the Company and its subsidiaries
prepared in accordance with generally accepted accounting principles, as
such principles are in effect on the date of this Agreement.
"Credit Agreement" -- The Revolving Credit Agreement, dated as of
February 15, 1992, among the Company, the banks named therein and
Manufacturers Hanover Trust Company, as agent.
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<PAGE> 6
"Defaulting Bank" -- Any Bank that shall (i) fail to make any Loan
required to be made by it hereunder, (ii) state in writing that it will not
make, or that it has disaffirmed or repudiated its obligation to make, any
Loan required to be made by it hereunder, by reason of the provisions of
the Financial Institution Reform, Recovery and Enforcement Act of 1989 or
otherwise or (iii) assign or transfer all or a part of its rights hereunder
without the prior written consent of the Company.
"Determining Banks" -- Chemical, Morgan Guaranty Trust Company of New
York and The Chase Manhattan Bank, National Association.
"Domestic Lending Office" -- Initially, the office of a Bank
designated as such and set forth with its signature below, and thereafter
such other office of such Bank, if any, of which such Bank shall notify the
Agent and Company in writing.
"Domestic Loans" -- All Reference Rated Loans and CD Rated Loans.
"Effective Date" -- May 24, 1994, or such other date as the parties
hereafter shall agree upon.
"Engineer's Opinion" -- A report prepared as of January 1 of the year
in which the report is delivered which shall, as of such January 1, and on
the basis of findings and data as of a date not more than four months prior
to such January 1, identify the properties covered thereby and set forth as
of such January 1: (a) the Proved Reserves attributable to such properties,
(b) projections of the future rate of production, the future net revenues
and the present value of future net revenues of production discounted at a
rate per annum designated by the Determining Banks, (c) projections of
reserves and the future rate of production of gas plant products, the
future net income from gas plant interests and the present value of the
future net income from the gas plant interests discounted at a rate per
annum designated by the Determining Banks, and (d) the price assumptions,
which shall be designated by the Determining Banks, used in arriving at the
value of future net revenues and future net income.
"Eurodollar Lending Office" -- Initially, the office of a Bank
designated as such and set forth with its signature below, and thereafter
such other office of such Bank, if any, of which such Bank shall notify the
Agent and the Company in writing.
"Eurodollar Loans" -- Loans hereunder at such time as they bear
interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" -- With respect to any Interest Period pertaining to
a Eurodollar Loan, the quotient obtained by dividing (a) the applicable
Interbank Rate by (b) 1.00 minus that percentage (expressed as a decimal)
which is prescribed by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirement for a member
bank of the Federal Reserve System in New York City with deposits exceeding
$1,000,000,000 in respect of Eurocurrency liabilities having a maturity
comparable to such Interest Period and in an amount comparable to that
portion of the Eurodollar Loans of Chemical to which such Interest Period
applies (such Eurodollar Rate to be adjusted to the next higher 1/100 of
1%). The percentage referred to in clause (b) of the immediately preceding
sentence shall be adjusted automatically on and as of the effective date of
any change in the reserve requirement referred to in such clause (b).
"Event of Default" -- Any of the events of default set forth in
Article VI.
"Extension Agreement" -- Any of the extension agreements in
substantially the form attached hereto as Exhibit B.
"Hydrocarbons" -- Oil, gas and other liquid or gaseous hydrocarbons.
"Indebtedness" -- Any indebtedness which: is for money borrowed;
represents the deferred purchase price of property or assets purchased,
except trade accounts payable in the ordinary course of business; is in
respect of a capitalized lease, an advance payment or production payment;
or is in respect of a guarantee of any of the foregoing obligations of
another Person.
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<PAGE> 7
"Independent Engineer" -- A Person appointed by the Board of Directors
of the Company and acceptable to the Determining Banks who is engaged in
engineering work or business who is in fact independent and does not have
any substantial interest, direct or indirect, in the Company, but such
Person may be regularly retained by the Company. If such Person is an
individual, he shall not be a director, officer or employee of the Company.
If such Person is a partnership or a corporation, it shall not have a
partner, director or officer who is a director, officer or employee of the
Company.
"Interbank Rate" -- The average offered rate quoted to the Reference
Banks in the London Interbank Eurodollar Market as of 10:00 A.M. (New York
City time) two Working Days immediately preceding the commencement of the
Interest Period for a Eurodollar Loan for deposits in United States dollars
in an amount comparable to the Eurodollar Loan of Chemical to which such
Interest Period applies and for a period of time comparable to such
Interest Period.
"Interest Payment Date" -- (a) As to any Reference Rated Loan, the end
of any quarter with respect thereto and the Maturity Date, (b) as to any
Eurodollar Loan, the last day of the Interest Period with respect thereto,
and, for Interest Periods longer than 3 months, each date which is 3
months, or a whole multiple thereof, from the first day of such Interest
Period and (c) as to any CD Rated Loan, the last day of the Interest Period
with respect thereto, and, for Interest Periods of 180 days, the date which
is 90 days from the first day of such Interest Period.
"Interest Period" -- (a) With respect to any Eurodollar Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending 1, 2, 3, 6 or, to the extent funds are available, as
determined by the Agent, 9 months thereafter, as selected by the Company
in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
1, 2, 3, 6 or, to the extent funds are available, as determined by the
Agent, 9 months thereafter, as selected by the Company by irrevocable
notice to the Agent not less than two Working Days prior to the last day
of the then current Interest Period with respect thereto; and
(b) with respect to any CD Rated Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such CD Rated Loan
and ending 30, 60, 90 or 180 days thereafter, as selected by the Company
in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such CD Rated Loan and ending
30, 60, 90 or 180 days thereafter, as selected by the Company by
irrevocable notice to the Agent on the last day of the then current
Interest Period with respect thereto;
provided that, the foregoing provisions relating to Interest Periods are
subject to the following:
(A) the Company shall have no right to elect an Interest Period
which would extend beyond the Maturity Date;
(B) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day which is not a Working Day, that Interest Period
shall be extended to the next succeeding Working Day unless the result
of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Working Day;
(C) if any Interest Period pertaining to a CD Rated Loan would
otherwise end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day;
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<PAGE> 8
(D) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Working Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Working Day of a calendar
month;
(E) if any Interest Period would otherwise extend beyond the (i)
Maturity Date or (ii) date an amount or amounts are required to be
repaid pursuant to Section 2.07, then (1) the Interest Period for the
principal amount (if any) of each Loan required to be repaid on such
date shall end on such date and (2) the remainder (if any) of each such
Loan shall have an Interest Period determined as set forth above; and
(F) for purposes of determining the availability of 9 month
Interest Periods in respect of Eurodollar Loans, such Interest Periods
shall be deemed available if (1) each of the Reference Banks quotes a
rate to the Agent as provided in the definition of Eurodollar Rate and
(2) the Majority Banks shall not have advised the Agent that the
Eurodollar Rate determined by the Agent on the basis of such quotes will
not adequately and fairly reflect the cost to such Banks of maintaining
or funding their Eurodollar Loans for such Interest Period.
"Lien" -- Any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind, including, without limitation, any conditional sale
or other title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction and, in the case of any production
payment, the right, title and interest of the owner of such production
payment in the Mineral Interests out of the production from which such
production payment is payable.
"Loan" -- As the context may require, any CD Rated Loan, Eurodollar
Loan or Reference Rated Loan.
"Majority Banks" -- At any time, Banks holding at least 66 2/3% of the
then aggregate unpaid principal amount of the Notes held by Banks or, if no
such principal amount is then outstanding, Banks having at least 66 2/3% of
the Commitments; provided, however, that the term Majority Banks as used in
Section 2.16 shall mean, at any time, Banks holding at least 75% of the
then aggregate unpaid principal amount of the Notes held by Banks or, if no
such principal amount is then outstanding, Banks having at least 75% of the
Commitments.
"Maturity Date" means the second anniversary of the Termination Date
or, if such day is not a Working Day, the next succeeding Working Day
unless such Working Day falls in another calendar month, in which case the
Maturity Date shall be the next preceding Working Day.
"Mineral Interests" -- Leasehold and other interests in or under oil,
gas and other mineral leases, mineral fee interests, overriding royalty and
royalty interests and any other interests in Hydrocarbons and other
minerals in place.
"Moodys" -- Moody's Investors Service, Inc.
"Net Proceeds" -- (a) The gross fair market value of the consideration
or other amounts payable to or receivable by the Company in respect of any
sales, transfers, distributions (other than cash dividends) or other
dispositions of assets or properties other than (i) in the ordinary course
of business, (ii) from the Company to a wholly owned subsidiary or (iii)
from a subsidiary of the Company to the Company or a wholly owned
subsidiary, less (b) the amount, if any, of all foreign and domestic taxes
(but including income taxes only to the extent the Company reasonably
estimates that such income taxes will be paid as a result of the federal
income tax return or any state income tax return filed by the Company for
the year in which the transaction takes place), and reasonable and
customary fees, commissions, costs and other expenses which are incurred in
connection with such sales, transfers or other dispositions and are payable
by the seller or the transferor of the assets or property to which such
sales, transfers or other dispositions relate, but only to the extent not
already deducted in arriving at the amount referred to in clause (a).
5
<PAGE> 9
"Note" -- Any of the promissory notes of the Company payable to the
order of any Bank in substantially the form attached hereto as Exhibit A.
"Other Credit Agreement" -- means the $250,000,000 Revolving Credit
Agreement, dated as of the date hereof, among the Company, the banks listed
therein and Chemical, as agent for such banks, as the same may be amended,
modified, supplemented or restated, from time to time, in accordance with
the terms thereof.
"Person" -- Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Proved Reserves" -- The estimated quantities of Hydrocarbons which
geological and engineering data demonstrate with reasonable certainty to be
recoverable in future years from known reservoirs under existing economic
and operating conditions.
"Public Indenture" -- The Indenture, dated as of May 10, 1988, between
the Company and Continental Illinois National Bank and Trust Company of
Chicago (now known as Continental Bank N.A.), as Trustee, as amended by the
First Supplemental Indenture, dated as of November 15, 1991, between the
Company and Continental Bank N.A.
"Reference Banks" -- Chemical and Mellon Bank, N.A.
"Reference Rate" -- The rate of interest publicly announced by
Chemical from time to time in the City of New York as its reference rate.
The reference rate is not intended to be the lowest rate of interest
charged by Chemical in connection with extensions of credit to debtors.
"Reference Rated Loans" -- Loans hereunder at such time as they bear
interest at a rate based upon the Reference Rate.
"Reserve Percentage" -- For any day during any Interest Period
pertaining to a CD Rated Loan, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor) for determining the reserve
requirement for a member bank of the Federal Reserve System in the City of
New York with deposits exceeding $1,000,000,000 in respect of new
non-personal time deposits in dollars in the City of New York having a
maturity comparable to the portion of the CD Rated Loans to which such
Interest Period applies and in an amount of $100,000 or more.
"S&P" -- Standard & Poor's Corporation.
"Termination Date" -- May 23, 1995 or such later date to which the
Termination Date shall have been extended pursuant to Section 2.05(c), or,
if such day is not a Working Day, the next preceding Working Day; provided,
however, that the Termination Date shall in no event be later than June 30,
1999.
"Tranche" -- The collective reference to Loans (other than Reference
Rated Loans) of the same Type the then current Interest Periods with
respect to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Type" -- As to any Loan, its nature as a Reference Rated Loan, a CD
Rated Loan or a Eurodollar Loan.
"Working Day" -- A day on which banks are open for business in the
City of New York and in London and dealings are carried out in the London
Interbank Eurodollar Market.
SECTION 1.02. Use of Defined Terms. Any defined term used in the plural
preceded by the definite article shall be taken to encompass all members of the
relevant class. Any defined term used in the singular preceded by "any" shall be
taken to indicate any number of the members of the relevant class.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in each case in accordance with generally
accepted accounting principles as in effect on the date of this Agreement.
6
<PAGE> 10
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.01. Loans. (a) Subject to the terms and conditions of this
Agreement, each Bank severally agrees to make revolving credit Loans to the
Company from time to time during the period from the Effective Date to, and
including, the Termination Date in an aggregate principal amount at any one time
outstanding not to exceed its Commitment. The Company may use the Commitments by
repaying and prepaying the Loans in whole or in part, and on or prior to the
Termination Date, borrowing and reborrowing, all in accordance with the terms
and conditions hereof.
(b) The Loans may be (i) Eurodollar Loans, (ii) Reference Rated Loans,
(iii) CD Rated Loans or (iv) a combination thereof, as determined by the Company
and notified to the Agent in accordance with Sections 2.03 and 2.22. Eurodollar
Loans shall be made and maintained by each Bank at either a Eurodollar Lending
Office or a Domestic Lending Office, at its option.
SECTION 2.02. Notes. (a) Loans made by each Bank pursuant hereto shall be
evidenced by an appropriate Note, payable to the order of such Bank and
representing the obligation of the Company to pay the amount of the Commitment
of such Bank or, if less, the aggregate unpaid principal amount of all Loans
made by such Bank, with interest thereon as prescribed in Section 2.09. Each
Note shall (i) be dated the Effective Date, (ii) mature on the Maturity Date and
(iii) bear interest for the period from the date thereof until paid in full on
the unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in Section 2.09 and
payable as specified in Section 2.09(e). Each Bank is hereby authorized to
record the date, Type and amount of each Loan made by such Bank pursuant to
Section 2.01, each continuation thereof, each conversion of all or a portion
thereof to another Type, and the date and amount of each repayment or prepayment
of principal thereof, on the schedule annexed to and constituting a part of its
Note, and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded.
(b) Each Bank shall, at the request of the Company, deliver to the Company
copies of the Notes and the schedules annexed thereto.
SECTION 2.03. Procedure for Borrowing. The Company may borrow on any
Working Day if the borrowing (or any portion thereof) consists of Eurodollar
Loans or on any Business Day if the borrowing consists entirely of Domestic
Loans; provided that the Company shall give the Agent notice not later than (i)
two Working Days prior to the Borrowing Date, in the case of Eurodollar Loans,
and (ii) the Borrowing Date, in the case of Domestic Loans. Such notice shall
specify (i) the amount to be borrowed, (ii) the Borrowing Date, (iii) whether
the borrowing is to consist of Eurodollar Loans, Reference Rated Loans, CD Rated
Loans or a combination thereof (in each case stating the amounts requested), and
(iv) except in the case of Reference Rated Loans, the length of the Interest
Period(s) therefor. Each borrowing shall be in an aggregate principal amount not
less than (i) in the case of Reference Rated Loans, the lesser of (A)
$10,000,000 or a whole multiple of $5,000,000 in excess thereof and (B) the then
unused Commitments or (ii) in the case of CD Rated Loans or Eurodollar Loans,
$10,000,000 or a whole multiple of $5,000,000 in excess thereof. Upon receipt of
such notice, the Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available to the Agent
for the account of the Company at the office of the Agent designated by the
Agent in the Agent's notice aforesaid prior to 11:30 A.M. (according to the time
of the place where such office of the Agent is located) on the Borrowing Date
requested by the Company in funds immediately available to the Agent as the
Agent may direct. The proceeds of each such borrowing will then be made
available to the Company by the Agent crediting the account of the Company on
the books of the Agent with the aggregate amount made available to the Agent by
the Banks and in like funds as received by the Agent.
SECTION 2.04. Commitment Fees. (a) Subject to subsection (b) of this
Section, the Company agrees to pay to the Agent for the account of each Bank a
commitment fee from the Effective Date to, but not including, the Termination
Date or such earlier date upon which the Commitments shall terminate or be
reduced to zero pursuant to Section 2.05 or 6.01, computed at the rate of
12.50/100 of 1% per annum (or, in the
7
<PAGE> 11
case of each day on which the ratings by Moodys and S&P of the Company's long
term senior unsecured debt are (i) in neither case greater than, but not both
less than, "BBB-" or equivalent rating, 17.50/100 of 1% per annum or (ii) both
less than "BBB-" or equivalent rating, 22.50/100 of 1% per annum, provided that
for purposes of this Section 2.04(a), in the event that a rating is not
available from either Moodys or S&P, such rating agency shall be deemed to have
assigned its lowest rating) on an amount equal to the average daily unused
portion of the Commitments in effect for the period for which payment is made.
(b) If any Bank shall become a Defaulting Bank, then, notwithstanding
subsection (a) above and without prejudicing any right or remedy that the
Company may have with respect to, on account of, arising from or relating to any
event pursuant to which such Bank shall be a Defaulting Bank, no commitment fee
shall accrue for the account of such Bank from and after the date upon which
such Bank shall have become a Defaulting Bank.
(c) Commitment fees shall be payable quarterly in arrears on the last day
of each March, June, September and December, commencing on June 30, 1994, and on
the Termination Date or such earlier date as the Commitments shall terminate or
be reduced to zero as provided herein.
SECTION 2.05. Reduction, Termination or Extension of Commitments. (a) The
Company shall have the right, upon not less than two Business Days' notice to
the Agent, to terminate the Commitments or, from time to time, reduce the amount
of the Commitments. Any reduction shall be accompanied by prepayment of the
Loans to the extent, if any, that the Loans then outstanding exceed the amount
of the Commitments as then reduced. Any termination of the Commitments shall be
accompanied by prepayment in full of the Loans then outstanding and the payment
of any unpaid commitment fees then accrued hereunder. Upon receipt of such
notice, the Agent shall promptly notify each Bank thereof. Any reduction shall
be in an amount of $5,000,000 or a whole multiple thereof and shall reduce
permanently the amount of the Commitments then in effect. The Commitments once
terminated or reduced may not be reinstated.
(b) If during any calendar year the Company or its subsidiaries shall
receive Net Proceeds from the sale, transfer, distribution or other disposition
of property identified in the most recent Engineer's Opinion delivered pursuant
to Section 4.01 in an aggregate amount in excess of $50,000,000, the Borrowing
Base shall be reduced by the amount of such excess, each such reduction to occur
on the date of receipt by the Company or its subsidiaries of such excess amount.
(c) Extension of Commitments. The Commitments may be extended in the manner
set forth in this subsection (c), in each case for a period of 364 days from the
date on which Banks having 100% of the Commitments (after giving effect to any
assignments or terminations referred to in the fourth sentence of this
subsection (c)) shall have executed an Extension Agreement as provided herein
(the "Extension Date"). If the Company wishes to request an extension of the
Commitments, it shall give notice to that effect to the Agent not less than 30
nor more than 60 days prior to the Termination Date then in effect, whereupon
the Agent shall promptly notify each of the Banks of such request. Each Bank
will use its best efforts to respond to such request, whether affirmatively or
negatively, as it may elect in its sole discretion, within 20 days of such
notice to the Agent. If less than all Banks respond affirmatively to such
request within 20 days, then the Company may (i) require the Banks that do not
elect to extend their Commitments to assign their Commitments in their entirety
to one or more assignees, mutually satisfactory to the Company and to the Agent,
no later than 15 days prior to the Termination Date then in effect, which
assignees will agree to extend such Commitment and (ii) if Banks holding at
least 80% of the Commitments then outstanding (including assignees that shall
have become Banks pursuant to clause (i) above) shall have agreed to extend
their respective Commitments, the Company may, with effect from the Extension
Date, terminate the Commitments of the Banks that shall not have agreed to so
extend and prepay all Loans and other amounts then owing to any such Banks, in
each case in accordance with Section 8.06(a) hereof. If all Banks (including
such assignees, excluding their respective transferor Banks, and excluding all
such Banks whose Commitments have been so terminated) respond affirmatively,
then, subject to receipt by the Agent of counterparts of an Extension Agreement
in substantially the form of Exhibit B hereto duly completed and signed by all
of the parties thereto, the Commitments shall be extended for the period
specified above. Such Extension Agreement shall be executed and delivered no
earlier than 5 days prior to the Termination Date then in effect,
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and no extension of the Commitments pursuant to this subsection (c) shall be
legally binding on any party hereto unless and until such Extension Agreement is
so executed and delivered and accepted by the Company.
(d) All outstanding Commitments shall terminate on the Termination Date.
SECTION 2.06. Optional Prepayments. (a) The Company may, at its option, as
provided in this Section 2.06, at any time and from time to time prepay the
Loans, in whole or in part, upon at least two Business Days' prior notice to the
Agent, specifying (i) the date and amount of prepayment and (ii) the respective
amounts to be prepaid in respect of Reference Rated Loans, CD Rated Loans and
Eurodollar Loans. Upon receipt of such notice, the Agent shall promptly notify
each Bank thereof. The payment amount specified in such notice shall be due and
payable on the date specified. All prepayments pursuant to this Article II shall
include accrued interest on the amount prepaid to the date of prepayment and, in
the case of prepayments of Eurodollar Loans and CD Rated Loans, any amounts
payable pursuant to Section 2.20. The Loans shall also be subject to prepayment
as provided in Sections 2.05, 2.07, 2.12, 2.13 and 8.06.
(b) Partial optional prepayments pursuant to this Section 2.06 shall be in
an aggregate principal amount of $10,000,000 or any whole multiple of $5,000,000
in excess thereof. All prepayments of Loans pursuant to this Article II shall be
without the payment by the Company of any premium or penalty except for amounts
payable pursuant to Section 2.20.
SECTION 2.07. Mandatory Prepayments. (a) If at any time prior to the
Termination Date the aggregate outstanding principal amount of the Loans exceeds
the Commitments, the Company shall prepay the Loans in an amount equal to such
excess.
(b) If at any time the Available Borrowing Base is less than zero, the
Company shall prepay Indebtedness in an amount at least sufficient to cause the
Available Borrowing Base to be equal to zero. If any amount is required to be
prepaid pursuant to this subsection (b) as a result of a decrease in the
Borrowing Base, the Company shall pay such amount in no more than six equal
monthly installments, payable on the fifteenth day of each calendar month,
commencing on the first such day to occur after the date of any determination
that a prepayment is required pursuant to this subsection (b).
(c) Each prepayment of Loans pursuant to this Section 2.07 shall be
accompanied by payment of accrued interest on the amount prepaid to the date of
prepayment and, in the case of prepayments of Eurodollar Loans and CD Rated
Loans, any amounts payable pursuant to Section 2.20.
SECTION 2.08. Repayment of Loans. The Company shall pay to the Agent for
the account of each Bank the unpaid principal amount of each Loan made by such
Bank on the Maturity Date.
SECTION 2.09. Interest Rate. (a) Each Eurodollar Loan shall bear interest
for each day during each Interest Period with respect thereto on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate for
such Interest Period plus 37.50/100 of 1%.
(b) Each Reference Rated Loan shall bear interest on the unpaid principal
amount thereof at a fluctuating rate per annum equal to the Reference Rate.
(c) Each CD Rated Loan shall bear interest for each day during each
Interest Period with respect thereto on the unpaid principal amount thereof at a
rate per annum equal to the Adjusted CD Rate for such Interest Period plus
50/100 of 1%.
(d) Any overdue principal of any Loan shall, without limiting the rights of
any Bank under Article VI, bear interest at a rate per annum which is 1% above
the rate which would otherwise be applicable to such Loan pursuant to
subsections (a), (b) and (c) of this Section 2.09 until paid in full (as well
after as before judgment).
(e) Interest shall be payable on each Interest Payment Date.
(f) Notwithstanding the foregoing, if on any day the sum of (i) the
aggregate principal amount of outstanding Loans and (ii) the aggregate principal
amount of loans outstanding under the Other Credit Agreement is greater than 50%
of the sum of (A) the aggregate Commitments hereunder and (B) the
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aggregate commitments then existing under the Other Credit Agreement, each
Eurodollar Loan and CD Rated Loan shall bear interest, for such day, at a rate
per annum which is 12.50/100 of 1% above the rate which would otherwise be
applicable pursuant to subsections (a) and (c) of this Section 2.09.
(g) Notwithstanding the foregoing, (i) if on any day neither of the ratings
by Moodys and S&P of the Company's long term senior unsecured debt is greater
than "BBB-" or equivalent rating, but such ratings are not both less than "BBB-"
or equivalent rating, Eurodollar and CD Rated Loans shall bear interest, for
such day, at a rate per annum which is 12.50/100 of 1% above the rate which
would otherwise be applicable pursuant to subsections (a), (c) and (f) of this
Section 2.09; or (ii) if on any day Moodys and S&P both rate the Company's long
term senior debt less than "BBB-" or equivalent rating, Eurodollar and CD Rated
Loans shall bear interest, for such day, at a rate per annum which is 25/100 of
1% above the rate which would otherwise be applicable pursuant to subsections
(a), (c) and (f) of this Section 2.09. For purposes of this Section 2.09, in the
event a rating is not available from either Moodys or S&P, such rating agency
will be deemed to have assigned its lowest rating.
SECTION 2.10. Computation of Interest and Fees. (a) Interest on the
Reference Rated Loans and commitment fees shall be calculated on the basis of a
365-(or 366-as the case may be) day year for the actual days elapsed. Interest
on Eurodollar Loans and CD Rated Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. The Agent shall notify the Company and
the Banks of each determination of a Eurodollar Rate and of an Adjusted CD Rate.
Any change in the interest rate resulting from a change in the Reference Rate
shall become effective as of the opening of business on the day on which such
change in the Reference Rate shall become effective. The Agent shall notify the
Company and the Banks of the effective date and the amount of each such change
in the Reference Rate.
(b) The Agent shall, at the request of the Company, deliver to the Company
a statement showing the quotations given by the Reference Banks and the
computations used by the Agent in determining any interest rate pursuant to
subsection (a) or (c) of this Section 2.10.
(c) If either of the Reference Banks shall be unable or shall otherwise
fail to notify the Agent of a rate, the interest rate shall be determined on the
basis of the rate notified by the other Reference Bank.
SECTION 2.11. Pro Rata Treatment and Payments. Each borrowing by the
Company from the Banks, each payment (including each prepayment) by the Company
on account of the principal of and interest on the Loans and on account of any
commitment fees hereunder and any reduction of the Commitments of the Banks
hereunder shall be made pro rata according to the Commitments, except that (i)
payments or prepayments, and offsets against or reductions from the amount of
payments and prepayments, in each case, specifically for the account of a
particular Bank under the terms of Section 2.04, 2.05, 2.12, 2.13, 2.20 or 8.06
shall be made for the account of such Bank and (ii) if any Bank shall become a
Defaulting Bank, from and after the date upon which such Bank shall have become
a Defaulting Bank, any payment made on account of principal of or interest on
the Loans shall be applied, first for the account of the Banks other than the
Defaulting Bank, pro rata according to the Commitments of such Banks, until the
principal of and interest on the Loans of such Banks shall have been paid in
full and, second for the account of such Defaulting Bank, provided that the
application of such payments in accordance with this clause (ii) shall not
constitute an Event of Default or an event which with the giving of notice or
the passage of time, or both, would constitute an Event of Default, and no
payment of principal of or interest on the Loans of such Defaulting Bank shall
be considered to be overdue for purposes of Section 2.09(d) hereof, if, had such
payments been applied without regard to this clause (ii), no such Event of
Default or event which with the giving of notice or the passage of time, or
both, would constitute an Event of Default would have occurred and no such
payment of principal of or interest on the Loans of such Defaulting Bank would
have been overdue. All payments (including prepayments) to be made by the
Company on account of principal, interest and commitment fees shall be made
without setoff or counterclaim and shall be made to the Agent on behalf of the
Banks at the Agent's office located at (a) 270 Park Avenue, New York, New York
10017 at or before 12:00 noon (New York City time) in the case of Domestic Loans
and commitment fees, for the account of the Domestic Lending Offices of the
Banks and (b) 4 New York Plaza, New York, New York 10015 at or before 12:00 noon
(New York City time) in the case of Eurodollar Loans, for the account of the
Eurodollar Lending Offices or Domestic
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Lending Offices, as the case may be, of the Banks which shall then be
maintaining Eurodollar Loans, in each case in lawful money of the United States
of America and in immediately available funds. The Agent shall distribute such
payments to the Banks promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such extension would be to extend
such payment into another calendar month in which event such payment shall be
made on the immediately preceding Working Day. Each Bank is authorized to and
shall endorse the date, Type and amount of each Loan made by such Bank, each
continuation thereof, each conversion of all or a portion thereof to another
Type, and the date and amount of each payment of principal with respect thereto
on the schedule annexed to and constituting a part of its Note. No failure to
make or error in making any such endorsement as authorized hereby shall affect
the validity of the obligations of the Company to repay the unpaid principal
amount of the Loans with interest thereon as provided in Section 2.09 or the
validity of any payment thereof made by the Company.
Except as provided in Sections 2.04(b), 2.05, 2.12, 2.13, 2.20, 8.06 and
this Section 2.11, if the holder of any Note shall obtain any payment (whether
voluntary, involuntary, by application of offset or otherwise) upon principal of
or interest on such Note in excess of its pro rata share of payments obtained by
all holders upon principal of and interest on such Notes then held by them, such
holder shall purchase from the other holders such participation in such Notes
held by them as shall be necessary to cause such purchasing holder to share the
excess payment ratably with each of them; providing however, that if all or any
portion of the excess payment is thereafter recovered from such purchasing
holder, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
The following subsection (a) of Section 2.12 and subsection (b) of Section
2.15 shall be applicable to Eurodollar Loans and CD Rated Loans only and the
following Section 2.13 and subsection (a) of Section 2.15 shall be applicable to
Eurodollar Loans only.
SECTION 2.12. Increased Cost of Loans. (a) In the event of any change in
any applicable law, treaty or governmental regulation after the date of this
Agreement, or in the interpretation or application thereof after the date of
this Agreement, or compliance by any Bank with any request or directive (whether
or not having the force of law) from any central bank or other governmental
authority made or issued after the date of this Agreement, which:
(i) does or shall subject such Bank to any tax of any kind whatsoever
(including, without limitation, withholding taxes) with respect to this
Agreement, any Note or any Eurodollar or CD Rated Loan, or change the basis
of taxation of payments to such Bank of principal, commitment fees, penalty
fees, interest or any other amount payable hereunder (except for changes in
the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Bank (in excess, and without duplication, of those
taken into account in computing the Eurodollar Rate for any Eurodollar
Interest Period, the Reserve Percentage and the Assessment Rate); or
(iii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making, converting into, continuing or maintaining Eurodollar Loans or CD Rated
Loans or to reduce any amount receivable hereunder with respect to Eurodollar
Loans or CD Rated Loans, then, in any such case, the Company shall pay such
Bank, upon written demand being made to the Company by such Bank, such
additional amount which will compensate such Bank for such amounts as that Bank
reasonably deems to be material with respect
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to this Agreement, the Notes or the Loans hereunder, provided, however, that if
all or any such additional cost would not have been payable, or such reduction
would not have occurred, but for such Bank's decision to designate a new
Eurodollar Lending Office or refusal to change to another Eurodollar Lending
Office as provided below, the Company shall have no obligation under this
Section 2.12 to compensate such Bank for such amount. Such demand shall be
accompanied by a certificate of a duly authorized officer of such Bank setting
forth the amount of such payment and the basis therefor, which certificate shall
be prima facie evidence of the amount of such payment. Each Bank shall also give
written notice to the Company and the Agent of any event occurring after the
date of this Agreement which would entitle such Bank to compensation pursuant to
this Section 2.12 as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation and will designate a different
Eurodollar Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such Bank,
be disadvantageous to such Bank. Notwithstanding the foregoing, in the event
that any Bank shall demand payment pursuant to this Section 2.12, the Company
may, upon at least two Business Days' notice to the Agent and such Bank, convert
in whole (but not in part) the Eurodollar Loans or CD Rated Loans, as the case
may be, of such Bank, into Loans of another Type without regard to the
requirements of Section 2.22 (other than clause (i) of the proviso to the last
sentence of subsection (a) thereof).
(b) In the event that any Bank shall have reasonably determined that the
adoption after the date of this Agreement of any law, rule or regulation
regarding capital adequacy, or any change therein or in the interpretation or
application thereof after the date of this Agreement or compliance by any Bank
with any request or directive regarding capital adequacy (whether or not having
the force of law) from any central bank or governmental authority made or issued
after the date of this Agreement, does or shall have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy) by an amount reasonably deemed by such Bank to
be material, then from time to time, after submission by such Bank to the
Company (with a copy to the Agent) of a written request therefor, the Company
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such reduction from and after such date the Company receives the
request; provided, however, that the foregoing shall not apply to any capital
adequacy requirement imposed solely by reason of any business combination
effected after the date hereof.
SECTION 2.13. Illegality. Notwithstanding anything herein contained, if any
Bank shall make a good faith determination that a change in any applicable law
or regulation or in the interpretation thereof by any authority charged with the
administration thereof shall make it unlawful for such Bank to give effect to
its obligations to make, convert into, continue or maintain its Eurodollar Loans
under this Agreement, the obligation of such Bank to make, convert into,
continue or maintain Eurodollar Loans hereunder shall be suspended for the
duration of such illegality. Such Bank, by written notice to the Agent and to
the Company, shall declare that such Bank's obligation to make, convert into,
continue and maintain Eurodollar Loans shall be suspended, and the Company, on
the last day of the then current Interest Period applicable to such Eurodollar
Loans or portion thereof or, if the Bank so requests, on such earlier date as
may be required by relevant law, shall convert such Eurodollar Loans or portion
thereof into Loans of another Type, without regard to the requirements of
Section 2.22 (other than clause (i) of the proviso to the last sentence of
subsection (a) thereof). If and when such illegality ceases to exist, such
suspension shall cease and such Bank shall notify the Company and the Agent
thereof and any Loans previously converted from Eurodollar Loans to Loans of a
different Type pursuant to this Section 2.13 shall be converted into Loans of
Types corresponding to the Loans maintained by the other Banks on the last day
of the Interest Period of the corresponding Eurodollar Loans of the other Banks
unless, in the case of a conversion of CD Rated Loans, the Company shall have
elected, by notice to the Agent, not to convert such CD Rated Loans until the
last day of the then current Interest Period with respect thereto, in which
case, such CD Rated Loans shall be converted at such time as the Company may
elect in accordance with Section 2.22.
SECTION 2.14. Withholding Tax Exemption. At least five Business Days prior
to the first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to each
of the
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Company and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Bank is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Bank
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form so
delivered by it, and such amendments thereto or extensions or renewals thereof
as may be reasonably requested by the Company or the Agent, in each case
certifying that such Bank is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the Company and the Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
SECTION 2.15. Substitute Loan Basis. (a) In the event that the Majority
Banks shall reasonably determine (which determination shall be final and
conclusive and binding upon the Company) at any time that (i) by reason of
changes affecting the London Interbank Eurodollar Market, adequate and fair
means do not exist for ascertaining the rate of interest applicable to any
Tranche of Eurodollar Loans for any requested Interest Period or (ii) the making
of, converting into or continuing for an additional Interest Period of any
Tranche of Eurodollar Loans has been made impracticable by the occurrence of a
contingency which materially and adversely affects the London Interbank
Eurodollar Market then, and in any such event, the Agent shall forthwith give
notice to the Company and, subject to the provisions of subsection (b) of this
Section 2.15 (x) unless on the date upon which such Eurodollar Loans were to be
made the Company notifies the Agent that it elects not to borrow on such date,
any Eurodollar Loans requested to be made on the first day of such Interest
Period shall be made as Reference Rated Loans or CD Rated Loans, as requested by
the Company by notice (setting forth, in the case of any request that such Loans
be made as CD Rated Loans, the initial Interest Period with respect thereto) to
the Agent on the date upon which such Loans are to be made, or, in the absence
of any such request, as Reference Rated Loans, (y) any Loans that were to have
been, on the first day of such Interest Period, converted to or continued as
Eurodollar Loans shall be converted to or continued as Reference Rated Loans or
CD Rated Loans, as requested by the Company by notice (setting forth, in the
case of any request that such Loans be converted to or continued as CD Rated
Loans, the next Interest Period with respect thereto) to the Agent on the date
upon which such Loans were to have been converted or continued, or, in the
absence of any such request, as Reference Rated Loans, and (z) any outstanding
Eurodollar Loans shall be converted, on the last day of the Interest Period
applicable thereto, to Reference Rated Loans or CD Rated Loans, as requested by
the Company by notice (setting forth, in the case of any request that such Loans
be converted to CD Rated Loans, the initial Interest Period with respect
thereto) to the Agent on the date upon which such Loans are to be converted, or
in the absence of any such request, to Reference Rated Loans. The Agent shall
give written notice to the Company of any event occurring after the giving of
such notice which permits an adequate and fair means of ascertaining the rate of
interest applicable to Eurodollar Loans and until such notice by the Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Company have the right to convert Loans to Eurodollar Loans.
(b) In the event that the Majority Banks shall reasonably determine (which
determination shall be final and conclusive and binding upon the Company) at any
time that (i) by reason of changes affecting the market for domestic
certificates of deposit of commercial banks, adequate and fair means do not
exist for ascertaining the rate of interest applicable to any Tranche of CD
Rated Loans for any requested Interest Period or (ii) the making of, converting
into or continuing for an additional Interest Period of any Tranche of CD Rated
Loans has been made impracticable by the occurrence of a contingency which
materially and adversely affects the market for domestic certificates of deposit
of commercial banks then, and in any such event, the Agent shall forthwith give
notice to the Company and, subject to the provisions of subsection (a) of this
Section 2.15 (x) unless on the date upon which such CD Rated Loans were to be
made, the Company notifies the Agent that it elects not to borrow on such date,
any CD Rated Loans requested to be made on the first day of such Interest Period
shall be made as Reference Rated Loans or Eurodollar Loans, as requested by the
Company
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by notice (setting forth, in the case of any request that such Loans be made as
Eurodollar Loans, the initial Interest Period with respect thereto) to the Agent
on the date of or two Working Days before, as the case may be, such Loans are to
be made, or, in the absence of any such request, as Reference Rated Loans, (y)
any Loans that were to have been, on the first day of such Interest Period,
converted to or continued as CD Rated Loans shall be converted to or continued
as Reference Rated Loans or Eurodollar Loans, as requested by the Company by
notice (setting forth, in the case of any request that such Loans be converted
to or continued as Eurodollar Loans, the next Interest Period with respect
thereto) to the Agent on the date upon or two Working Days before, as the case
may be, such Loans were to have been converted or continued, or, in the absence
of any such request, as Reference Rated Loans and (z) any outstanding CD Rated
Loans shall be converted, on the last day of the Interest Period applicable
thereto, to Reference Rated Loans or Eurodollar Loans, as requested by the
Company by notice (setting forth, in the case of any request that such Loans be
converted to Eurodollar Loans, the initial Interest Period with respect thereto)
to the Agent on the date upon or two Working Days before, as the case may be,
the date upon which such Loans are to be converted, or, in the absence of any
such request, to Reference Rated Loans. The Agent shall give written notice to
the Company of any event occurring after the giving of such notice which permits
an adequate and fair means of ascertaining the rate of interest applicable to CD
Rated Loans and until such notice by the Agent, no further CD Rated Loans shall
be made or continued as such, nor shall the Company have the right to convert
Loans to CD Rated Loans.
SECTION 2.16. Determination of Borrowing Base. On or before the date which
is the later of April 1 in each year and the date which is one month after the
date on which the Engineer's Opinion for such year is delivered to the Banks
pursuant to Section 4.01, the Determining Banks shall determine, based upon the
information, including information as to projected cash flows, contained in such
Engineer's Opinion, the Determining Banks' normal policy guidelines on price
parameters, cost escalations and discount and other factors customarily used by
each Determining Bank in evaluating energy and natural resource related credits,
a borrowing base. The borrowing base as determined shall be promptly
communicated to the other Banks, which shall promptly consider and approve or
disapprove the same, and upon approval of such determination by the Majority
Banks, by notice to the Agent, such borrowing base shall constitute the
"Borrowing Base." Such determination by the Determining Banks and such approval
or nonapproval by the Majority Banks shall be made in the sole and absolute
discretion of the Determining Banks and the Majority Banks, respectively. No
later than May 15 in each year or the date which is six weeks after the date on
which the Engineer's Opinion for such year is delivered to Banks pursuant to
Section 4.01, the Agent shall notify the Company of the Borrowing Base. If the
Agent fails to notify the Company, the Borrowing Base shall remain in effect
until the next succeeding calculation of the Borrowing Base in the manner
provided above.
SECTION 2.17. Certain Prepayments or Conversions Pursuant to Sections 2.12
and 2.13. In the event that Loans of any Bank of one Type are prepaid or
converted into Loans of another Type pursuant to Sections 2.12 or 2.13 (Loans of
the former Type being herein called "Affected Loans"), unless and until such
Bank gives written notice that the circumstances which gave rise to such
prepayment or conversion no longer exist (which such Bank agrees to do promptly
upon such circumstances ceasing to exist) such Bank shall not make further
Affected Loans and all Loans which would otherwise be made by such Bank as, or
converted by such Bank into, Affected Loans shall be made instead as, or
converted into or continued as, Loans of another Type (on which interest and
principal shall be payable simultaneously with the related Affected Loans of the
other Banks).
SECTION 2.18. Certain Notices. Notices by the Company under each of
Sections 2.03, 2.05, 2.06, 2.12, 2.15 and 2.22 and under the definition of
"Interest Period" in Section 1.01 (a) shall be given in writing, by telegraph,
by telecopy or by telephone (confirmed promptly in writing) and (b) shall be
effective only if received by the Agent and, in the case of Section 2.12, the
Bank involved, not later than 10:30 A.M. (New York City time) on the day
specified in the respective Section or definition as the latest day such notice
may be given. Notices by the Company under each of Sections 2.03, 2.05, 2.06,
2.12, 2.15 and 2.22 shall be irrevocable.
SECTION 2.19. Use of Proceeds. The Company agrees that the proceeds of the
Loans obtained by the Company hereunder shall be used for its general corporate
purposes, including working capital needs, the
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repayment of indebtedness and loans to subsidiaries and will not be used,
directly or indirectly, or for any other purpose which would result in a
violation of any law, rule or regulation, including Regulation U of the Board of
Governors of the Federal Reserve System, known to the Company.
SECTION 2.20. Indemnity. The Company agrees to indemnify each Bank and to
hold such Bank harmless from any loss (other than loss of margin after the date
of such default or prepayment) or expense which such Bank may sustain or incur
as a consequence of (a) default by the Company in making a borrowing of,
conversion into or continuance of a Eurodollar Loan or CD Rated Loan after the
Company has given a notice requesting the same in accordance with this
Agreement, (b) default by the Company in making any prepayment of a Eurodollar
Loan or a CD Rated Loan after the Company has given a notice in accordance with
Section 2.06 or (c) the making by the Company of a prepayment or conversion of a
Eurodollar Loan or a CD Rated Loan on a day which is not the last day of the
Interest Period with respect thereto, arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans or CD Rated Loans hereunder or
from fees payable to terminate the deposits from which such funds were obtained.
This covenant shall survive termination of this Agreement and payment of the
Notes.
SECTION 2.21. Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Tranche shall be equal to $10,000,000 or a whole multiple of
$5,000,000 in excess thereof.
SECTION 2.22. Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans or CD Rated Loans to
Reference Rated Loans by giving the Agent irrevocable notice of such election on
the date of such conversion, provided that any such conversion may only be made
on the last day of an Interest Period with respect to the Loans being converted.
The Company may elect from time to time to convert Reference Rated Loans or
Eurodollar Loans to CD Rated Loans by giving the Agent irrevocable notice of
such election on the date of such conversion, provided that any such conversion
of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Company may elect from time to time to convert Reference
Rated Loans or CD Rated Loans to Eurodollar Loans by giving the Agent at least
two Working Days irrevocable notice of such election, provided that any such
conversion of CD Rated Loans may only be made on the last day of an Interest
Period with respect thereto. Any such notice of conversion to Eurodollar Loans
or CD Rated Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice, the Agent shall
promptly notify each Bank thereof. All or any part of outstanding Eurodollar
Loans, CD Rated Loans and Reference Rated Loans may be converted as provided
herein, provided that (i) no Loan may be converted into a Eurodollar Loan or a
CD Rated Loan at any time at which an Event of Default has occurred and is
continuing and (ii) any conversion may only be made if, after giving effect
thereto, Section 2.21 shall not have been contravened.
(b) Any Eurodollar Loans or CD Rated Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that (i) no Loan
may be continued as a Eurodollar Loan or a CD Rated Loan for an additional
Interest Period at any time at which an Event of Default has occurred or is
continuing and (ii) no Eurodollar Loan or CD Rated Loan may be continued as such
if, after giving effect thereto, Section 2.21 would be contravened and provided,
further, that if the Company shall fail to give any required notice as described
above in this section, or if such conversion is not permitted pursuant to the
preceding proviso hereof, such Loans shall be automatically converted to
Reference Rated Loans on the last day of such then expiring Interest Period.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties by the Company. The Company
represents and warrants to each of the Banks that:
(a) Corporate Existence, Qualification. The Company (i) has been duly
incorporated and is validly existing and in good standing under the laws of
the State of Delaware and (ii) is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction of the United
States in which the ownership of its properties or the conduct of its
business requires such qualification and where the failure to so qualify
would have a material adverse effect upon the business of the Company and
its subsidiaries taken as a whole.
(b) Corporate Authorization and Binding Agreement. This Agreement has
been duly authorized, executed and delivered by the Company and constitutes
a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and equitable
principles of general applicability. The Notes have been duly authorized by
the Company and, when executed, issued and delivered pursuant hereto for
value received, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(c) No Conflicting Agreements. The execution, delivery and performance
of this Agreement and the execution, issuance, delivery and performance of
the Notes will not conflict with any provision of (i) the restated
certificate of incorporation or by-laws of the Company or (ii) any
indenture, loan agreement or other similar agreement or instrument binding
on the Company.
(d) Governmental Approvals. No authorization, consent or approval of
any governmental body or agency is required for the valid execution,
delivery and performance of this Agreement by the Company or for the valid
execution, issuance, delivery and performance of the Notes by the Company.
(e) Proceedings. To the knowledge of the Company, there is no
proceeding pending or threatened before any court or administrative agency
which, in the opinion of the Company, will result in a final determination
which would have the effect of preventing the Company from carrying on its
business or from meeting its current and anticipated obligations on a
timely basis.
(f) Financial Position. The consolidated balance sheets of the Company
and its subsidiaries as of December 31, 1992 and 1993, and the related
consolidated statements of income, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1993,
certified by KPMG Peat Marwick, present fairly the consolidated financial
position of the Company and its subsidiaries at December 31, 1992 and 1993
and the results of their operations and their cash flows for each of the
years in the three-year period ended December 31, 1993, in conformity with
generally accepted accounting principles applied on a consistent basis.
Since December 31, 1993, there has been no material adverse change in the
consolidated financial position or results of operations of the Company and
its subsidiaries which would have the effect of preventing the Company from
carrying on its business or from meeting its current and anticipated
obligations on a timely basis.
(g) Ownership of Property. The Company and each of its subsidiaries
has valid and defensible title to any of their properties described as
Proved Reserves in the Engineer's Opinion delivered to the Banks prior to
the date hereof, or as the case may be, the most recent Engineer's Opinion
provided pursuant to Section 4.01, free and clear of any Liens except as
permitted in Section 1005 of the Public Indenture.
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ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Covenants. The Company covenants and agrees that, from the
date of this Agreement and for so long as any of the Notes shall be outstanding
or any of the Banks shall have any Commitments:
(a) Financial Statements, Etc. The Company will furnish to each Bank:
(i) within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if
the Company is not required to file information, documents or reports
pursuant to either of said Sections, then such of the supplementary and
periodic information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations; (ii) within 60
days after the close of each of the first three quarters of each of the
Company's fiscal years a statement by a responsible officer of the Company
stating whether to the knowledge of the Company an event has occurred
during such period and is continuing which constitutes an Event of Default
or would constitute an Event of Default with the giving of notice or the
lapse of time, or both, and, if so, stating the facts with respect thereto;
(iii) within 120 days after the close of each of the Company's fiscal years
a statement by a responsible officer of the Company stating whether to the
knowledge of the Company an event has occurred during such period and is
continuing which constitutes an Event of Default or would constitute an
Event of Default with the giving of notice or the lapse of time, or both,
and, if so, stating the facts with respect thereto; (iv) within five
Business Days after the Company becomes aware of the occurrence of any
event which constitutes an Event of Default, or would constitute an Event
of Default with the passage of time or the giving of notice, or both, if
such occurrence is then continuing notice of such occurrence together with
a statement by a responsible officer of the Company stating the facts with
respect thereto; and (v) such other information respecting the financial
condition or operations of the Company and its subsidiaries as any Bank may
from time to time reasonably request.
(b) Engineer's Report. The Company will furnish to each Bank subject
to Section 8.02, on or before March 1 in each year, an Engineer's Opinion.
The Engineer's Opinion shall, subject to the proviso below, (i) be
certified by a responsible officer of the Company as a true, correct and
complete report containing no material misstatements or misrepresentations
and (ii) cover 100% of the Proved Reserves of the Company (or such lesser
amount as may be agreed upon by the Agent and the Determining Banks),
calculated as of the January 1 preceding such March 1, provided, however,
that if as of January 1 (i) neither of the ratings by Moodys and S&P of the
Company's long term senior unsecured debt is greater than "BBB-" or
equivalent rating, but such ratings are not both less than "BBB-" or
equivalent rating and upon the written request of the Majority Banks or
(ii) Moodys and S&P both rate the Company's long term senior unsecured debt
less than "BBB-" or equivalent rating, the Engineer's Opinion shall be
issued by an Independent Engineer on the greater of (i) each field that
represents more than 2% of the total Proved Reserves of the Company or (ii)
at least 50% of the Proved Reserves of the Company. For purposes of this
Section 4.01, in the event a rating is not available from either Moodys or
S&P, such rating agency will be deemed to have assigned its lowest rating.
(c) Limitations on Sales and Leasebacks. The Company will not itself,
and will not permit any subsidiary to, enter into any arrangement with any
bank, insurance company or other lender or investor (not including the
Company or any subsidiary) or to which any such lender or investor is a
party, providing for the leasing by the Company or a subsidiary for a
period, including renewals, in excess of three years, of any Principal
Property (as defined in the Public Indenture) which has been or is to be
sold or transferred more than 180 days after the completion of construction
and commencement of full operation thereof, by the Company or any
subsidiary to such lender or investor or to any Person to whom
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funds have been or are to be advanced by such lender or investor on the
security of such Principal Property (herein referred to as a "sale and
leaseback transaction") unless either:
(i) the Company or such subsidiary could create Indebtedness
secured pursuant to Section 1005 of the Public Indenture on the
Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to the lease resulting from such sale and
leaseback transaction without equally and ratably securing the Notes; or
(ii) the Company within 180 days after the sale or transfer shall
have been made by the Company or by a subsidiary, applies an amount
equal to the greater of (A) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or
(B) the net amount (after deducting applicable reserves) at which such
Principal Property is carried on the books of the Company or such
subsidiary at the time of entering into such arrangement, to the
retirement of Indebtedness of the Company.
(d) Compliance with Indenture. The Company will comply with the
provisions of Sections 1004 and 1005 of the Public Indenture (a true and
complete copy of which the Company hereby represents has been furnished to
each Bank), which provisions, together with related definitions, are hereby
incorporated herein by reference for the benefit of the Banks and shall
continue in effect for purposes of this Section 4.02 regardless of
termination, or any amendment or waiver of, or any consent to any deviation
from or other modification of, the Public Indenture; provided, however,
that, for purposes of this Section 4.02, (a) references in the Public
Indenture to "the Securities" shall be deemed to refer to the obligations
of the Company to pay the principal of and interest on the Notes, (b)
references in the Public Indenture to "the Trustee" shall be deemed to
refer to the Agent, (c) references in the Public Indenture to "this
Indenture" shall be deemed to refer to this Agreement and (d) references in
the Public Indenture to "supplemental indentures" shall be deemed to refer
to supplements to this Agreement.
(e) Limitation on Mortgages. The Company will not incur, issue, assume
or guarantee any indebtedness secured by a mortgage on oil, gas, coal or
other minerals in place, or on related leasehold or other property
interest, which is incurred to finance development or production costs if
the aggregate amount of all such indebtedness exceeds 10% of Consolidated
Net Tangible Assets (as defined in the Public Indenture).
(f) Consolidated Stockholders' Equity. The Company will maintain, at
the end of each calendar quarter, Consolidated Stockholders' Equity of at
least $650,000,000 exclusive of the effect of any noncash writedowns made
subsequent to the date hereof.
(g) Current Ratio. The Company will maintain, at the end of each
calendar quarter, consolidated current assets plus the Commitments minus
the then outstanding Loans in an amount at least equal to its consolidated
current liabilities.
(h) Notice of Dispositions of Property. The Company shall promptly
notify the Agent of any sales, transfers, distributions or other
dispositions during any calendar year resulting in the receipt of Net
Proceeds in an aggregate amount in excess of $50,000,000 of property
identified in the most recent Engineer's Opinion delivered pursuant to
Section 4.01.
(i) Insurance. The Company will at all times maintain, with
financially sound and reputable insurers, insurance of the kinds, covering
the risks and in the relative proportionate amounts customarily carried by
companies engaged in the same or similar business and similarly situated.
ARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Conditions Precedent to the Initial Loans. The obligation of
each Bank to make its initial Loan is subject to the conditions precedent that
each Bank and the Agent shall have received on or before the date of the initial
Loan:
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(a) An appropriate Note payable to its order.
(b) Certified copies of the resolutions of the Board of Directors or
the Executive Committee of the Board of Directors of the Company
authorizing the execution, delivery and performance of this Agreement and
the execution, issuance, delivery and performance of the Notes.
(c) An opinion of Messrs. Davis Polk & Wardwell, special counsel to
the Company, to the effect that:
(i) the Company is validly existing and in good standing under the
laws of the State of Delaware;
(ii) this Agreement and the Notes have been duly authorized,
executed and delivered by the Company;
(iii) this Agreement constitutes a valid and binding agreement of
the Company and the Notes constitute valid and binding obligations of
the Company, in each case enforceable in accordance with their
respective terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
equitable principles of general applicability;
(iv) the execution, delivery and performance by the Company of this
Agreement and the Notes will not conflict with the restated certificate
of incorporation or by-laws of the Company, each as in effect on the
date of such opinion; and
(v) no authorization, consent or approval of any governmental body
or agency of the State of New York or the United States of America which
has not been obtained is required in connection with the execution,
delivery and performance by the Company of this Agreement and the Notes.
In rendering such opinion, Messrs. Davis Polk & Wardwell may rely upon
opinions of local counsel as to matters of local law and may state that
they have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by them to be
responsible.
(d) A favorable opinion of the General Counsel or General Attorney of
the Company, to the effect that:
(i) the Company is qualified to do business as a foreign
corporation and is in good standing in the States of Kansas, Louisiana,
Montana, New Mexico, Oklahoma, Texas and Wyoming;
(ii) the execution, delivery and performance of this Agreement and
the execution, issuance, delivery and performance of the Notes will not
(x) contravene any applicable provision of any applicable law or
applicable order or (y) conflict with any provision of any indenture,
loan agreement or other similar agreement or instrument known to such
counsel (having made due inquiry with respect thereto) binding on the
Company or affecting its property, and
(iii) to the knowledge of such counsel (having made due inquiry
with respect thereto), there is no proceeding pending or threatened
before any court or administrative agency which, in the opinion of such
counsel, will result in a final determination which would have the
effect of preventing the Company from carrying on its business or from
meeting its current and anticipated obligations on a timely basis.
In rendering such opinion, the General Counsel or General Attorney of the
Company shall opine only as to matters governed by the Federal laws of the
United States of America, the laws of the State of Texas and the General
Corporation Law of the State of Delaware. Such counsel may also state that
he has relied on certificates of state officials as to qualification to do
business and good standing, certificates of officers of the Company and
other sources believed by him to be responsible.
(e) A copy of a written irrevocable notice from the Company
terminating the Commitments, as defined in the Credit Agreement and
directing the Agent, as defined in the Credit Agreement, to prepay
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by wire transfer, in immediately available funds, in full any loans
then outstanding thereunder, together with accrued interest thereon and
any unpaid commitment fees then accrued.
(f) A certificate of a responsible officer of the Company to the
effect that:
(i) the representations and warranties contained in Section 3.01
are true and accurate on and as of the date of the making of each such
Loan as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date);
(ii) no event has occurred and is continuing or would result from
the proposed borrowing, which constitutes an Event of Default or would
constitute an Event of Default with the giving of notice or lapse of
time, or both;
(iii) the Company is in compliance with all the terms, covenants
and conditions of this Agreement which are binding upon it; and
(iv) after giving effect to the proposed borrowing of which such
Loan is a part and the application of the proceeds thereof, the
Available Borrowing Base would not be less than zero.
SECTION 5.02. Conditions Precedent to Loans. The obligation of each Bank to
make any Loan is subject to the further conditions precedent that on the
relevant Borrowing Date clauses (i) through (iv) in subsection (f) of Section
5.01 shall be true and such borrowing shall be deemed to constitute a
certification by the Company that such statements are true.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If one or more of the following events of
default ("Events of Default") shall occur and be continuing:
(a) the Company shall default in any payment of principal of any Loan
when due and such default shall continue for a period of 3 days; or the
Company shall default in any payment of interest on any Loan, or in the
payment of any commitment fees pursuant to Section 2.04, when due and
payable, and such default shall continue for a period of 10 days;
(b) any representation or warranty, or certification made by the
Company herein or any statement or representation or certification made or
deemed to be made pursuant to Article V of this Agreement shall prove to
have been incorrect in any material respect when made;
(c) the Company shall default in the performance of any other term,
condition, covenant or agreement contained in this Agreement and such
default shall continue unremedied for a period of 30 days after written
notice thereof, specifying such default and requiring it to be remedied,
shall have been received by the Company from any Bank,
(d) the Company shall default in the performance of any term,
condition, covenant or agreement contained in the Public Indenture and such
default shall have resulted in any of the Securities (as defined in the
Public Indenture) being declared due and payable prior to the date on which
such Securities would otherwise have become due and payable;
(e) the Company or any subsidiary shall (i) default in the payment of
principal of any Indebtedness in an aggregate principal amount in excess of
$25,000,000 (other than the Notes) beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise, or (ii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist unremedied or unwaived, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or
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a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, but without the passage of any
additional time, such Indebtedness to become due prior to its stated
maturity,
(f) the Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of its property, (ii) admit in writing its
inability to pay its debts as such debts become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary case
under the federal Bankruptcy Code (as now or hereafter in effect), (v) file
a petition seeking to take advantage of any other law providing for similar
relief of debtors, or (vi) consent or acquiesce in writing to any petition
duly filed against it in any involuntary case under such Bankruptcy Code;
(g) a proceeding or case shall be commenced, without the application
or consent of the Company, in any court of competent jurisdiction seeking
(i) its liquidation, reorganization, dissolution or winding up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of it or of its
assets, or (iii) similar relief in respect of it, under any law providing
for the relief of debtors, and such proceeding or case shall continue
undismissed, or unstayed and in effect, for a period of 60 days (or such
longer period, so long as the Company shall be taking such action in good
faith as shall be reasonably necessary to obtain the timely dismissal or
stay of such proceeding or case); or an order for relief shall be entered
in an involuntary case under the federal Bankruptcy Code (as now or
hereafter in effect), against the Company, or
(h) any Change in Control shall occur,
then and in each and every case the Majority Banks, by notice in writing to the
Company, may terminate the Commitments of the Banks hereunder and/or declare the
unpaid balance of the Notes and any other amounts payable hereunder to be
forthwith due and payable and thereupon such balance shall become so due and
payable without presentation, protest or further demand or notice of any kind,
all of which are hereby expressly waived; provided that in the case of clause
(f) or (g) above the Commitments of the Banks hereunder shall automatically
terminate and the Notes and any other amounts payable hereunder shall forthwith
be due and payable.
ARTICLE VII
THE AGENT AND THE DETERMINING BANKS
SECTION 7.01. Powers. Each Bank hereby irrevocably appoints and authorizes
the Agent to act as its agent hereunder. The Agent and the Determining Banks
shall have and may exercise such powers hereunder and under any agreement
executed and delivered pursuant to the terms hereof as are specifically
delegated to the Agent or the Determining Banks, as the case may be, by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. The Agent and the Determining Banks will have no duties or
responsibilities except those expressly set forth in this Agreement, and shall
not by reason of this Agreement have a fiduciary relationship with any Bank.
SECTION 7.02. Agent's Reliance, Etc. In performing its duties as Agent or a
Determining Bank hereunder and under any agreement executed and delivered
pursuant to the terms hereof, the Agent and each Determining Bank will take the
same care as it takes in connection with loans in which it alone is interested.
However, neither the Agent nor the Determining Banks nor any of their directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by them hereunder or thereunder or in connection herewith or therewith
except for their own gross negligence or willful misconduct.
SECTION 7.03. No Responsibility for Recitals, Etc. The Agent and the
Determining Banks will not be responsible to the Banks for any recitals,
statements, warranties or representations herein or under any agreement executed
and delivered pursuant to the terms hereof, for the value, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, the Notes or any
agreement executed and delivered pursuant hereto or be bound to ascertain or
inquire as to the performance or observance of any of the terms of this
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Agreement on the part of the Company or of any of the terms of any such other
agreement by any party thereto.
SECTION 7.04. Right to Indemnity. The Agent shall be fully justified in
failing or refusing to take any action hereunder or under any agreement executed
and delivered pursuant to the terms hereof unless it shall first be indemnified
(upon requesting such indemnification) to its satisfaction by the Banks against
any and all liability and expense which it may incur by reason of taking or
continuing to take any such action. The Banks agree to indemnify the Agent and
the Determining Banks, to the extent not reimbursed by the Company under this
Agreement, ratably in accordance with the aggregate principal amount of the
Loans made by them (or, if no Loans are outstanding, ratably in accordance with
their respective Commitments), for any and all liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent as agent or the Determining Banks, as the case may
be, in any way relating to or arising out of this Agreement, the Notes or any
other documents contemplated by or referred to herein or the transactions
contemplated hereby (including, without limitation, the costs and expenses which
the Company is obligated to pay under this Agreement but excluding, unless an
Event of Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents; provided no such liability, obligation, damage, penalty, action,
judgment, suit, cost, expense or disbursement results from the Agent's or the
Determining Banks', as the case may be, gross negligence or willful misconduct;
provided, however, that, in the event the Agent receives indemnification from
the Banks hereunder with respect to costs and expenses which the Company is
obligated to pay under this Agreement, the Agent shall remit to the Banks the
amount of such costs and expenses to the extent subsequently paid by the
Company, such remittance to be in accordance with the proportionate amount of
the indemnification made by each respective Bank.
SECTION 7.05. Action on Instructions of Banks. The Agent shall in all cases
be fully protected in acting or refraining from acting hereunder or under any
agreement executed and delivered pursuant to the terms hereof in accordance with
written instructions to it signed by the Majority Banks, and (subject to Section
8.01) such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
SECTION 7.06. Employment of Agents. The Agent and the Determining Banks may
employ agents and attorneys-in-fact and shall not be answerable, except as to
money or securities received by them or their authorized agents, for the default
or misconduct of any such agent or attorney-in-fact selected by it with
reasonable care.
SECTION 7.07. Reliance on Documents. The Agent and each Determining Bank
shall be entitled to rely upon (a) any paper or document believed by it to be
genuine and to have been signed or sent by the proper person or persons and (b)
the opinion of its counsel with respect to legal matters. The Agent and the
Determining Banks may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until a notice of the assignment or transfer
thereof satisfactory to the Agent signed by such payee shall have been filed
with the Agent.
SECTION 7.08. Rights as a Bank. With respect to its Commitment and the
Loans made by it, the Agent and each Determining Bank shall have the same rights
and powers hereunder and under any agreement executed and delivered pursuant to
the terms hereof as any Bank and may exercise the same as though it were not the
Agent or Determining Bank, as the case may be, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the Agent and each
Determining Bank in its capacity as a Bank hereunder and thereunder. The Agent
and the Determining Banks and their respective affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking or trust
business with the Company, its subsidiaries and its affiliates as if it were not
the Agent or a Determining Bank, as the case may be.
SECTION 7.09. Non-Reliance on Agent or other Banks. Each Bank agrees that
it has, independently and without reliance on the Agent or on any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Company and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any other
Bank, and based
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on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or the Notes. The Agent and the Determining Banks will not
be required to keep themselves informed as to the performance or observance by
the Company of this Agreement or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Company. Except
for notices, reports and other documents expressly required to be furnished to
the Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company or which
may at any time come into possession of the Agent or any of its affiliates.
SECTION 7.10. Events of Default. In the event the Agent receives actual
knowledge of an Event of Default hereunder, the Agent shall promptly inform the
Banks thereof. The Agent shall not be deemed to have actual knowledge of an
Event of Default hereunder until it shall have received a written notice from
the Company or any Bank referring to this Agreement, describing such Event of
Default and stating that such notice is a "Notice of Default".
SECTION 7.11. Successor Agent. If the Agent shall resign as Agent under
this Agreement, or shall cease to be a Bank under this Agreement, then the Banks
shall appoint any Bank which is a party to this Agreement (with the consent of
such Bank) as successor Agent for the Banks under this Agreement, whereupon such
successor Agent shall succeed to the rights, powers and duties of the Agent, and
the former Agent's rights, powers and duties as Agent shall be terminated and
cancelled, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Modifications, Consents and Waivers. To the extent permitted
by law, no failure or delay on the part of the Banks in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power hereunder. No
modification or waiver of any provision of this Agreement or of the Notes nor
consent to any departure by the Company therefrom shall in any event be
effective unless the same shall be in writing and signed by the Majority Banks,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given; provided, however, that no such
modification, waiver or consent may be made which will (a) extend the time for
payment of principal of or interest on any Note or reduce the principal amount
of or rate of interest on any Note or otherwise affect the terms of payment of
the principal of or interest on any Note without the written consent of the
holder of such Note or (b) affect the terms of or reduce the amount of the
commitment fee or reduce the percentages of 66 2/3% and 75% specified in the
definition of "Majority Banks" or amend the provisions of this Section 8.01
without the written consent of the holders of all Notes at the time outstanding
(or, if no Notes are then outstanding, all of the Banks). No notice to or demand
on the Company in any case shall, of itself, entitle the Company to any other or
further notice or demand in similar or other circumstances.
SECTION 8.02. Confidentiality. Each Bank shall maintain in confidence and
not publish, disseminate or disclose in any manner or to any Person and shall
not use any nonpublic information relating to the Company and its subsidiaries
which may be furnished pursuant to this Agreement (hereinafter collectively
called "Confidential Information"), subject to each Bank's (a) obligation to
disclose any such Confidential Information pursuant to a request or order under
applicable laws and regulations or pursuant to a subpoena or other legal
process, (b) right to disclose any such Confidential Information to bank
examiners, its affiliates, auditors, counsel and other professional advisors,
(c) right to use any such Confidential Information in connection with evaluating
the transactions set forth herein, and (d) right to disclose any such
Confidential Information in connection with any litigation involving the Banks
and the Company, provided, however, that Confidential Information disclosed
pursuant to clause (b) or (d) of this sentence shall be so disclosed subject to
such procedures as are reasonably calculated to maintain the confidentiality
thereof, and provided, further, that Confidential Information disclosed pursuant
to applicable laws, regulations, subpoenas or other legal
23
<PAGE> 27
process shall be so disclosed subject to such confidentiality provisions, if
any, as may be provided under applicable law. The Banks agree, to the extent
permitted by applicable law, to use their best efforts promptly to notify the
Company in writing of each order, subpoena or other legal process providing for
the disclosure and/or production of Confidential Information and shall, to the
extent permitted by applicable law, use their best efforts promptly to supply
the Company with a copy of such order, subpoena or other legal process, in order
that the Company may intervene in the relevant administrative or legal
proceeding or take other appropriate legal action to protect the confidentiality
of such Confidential Information.
SECTION 8.03. Addresses for Notices. Except as otherwise provided herein,
all communications and notices provided for hereunder shall be in writing and,
if to the Company, mailed to P.O Box 1330, Houston, Texas 77251-1330 Attention:
Treasurer, and, if to the Agent, delivered or mailed to 270 Park Avenue, New
York, New York 10017 (Attention: Energy Division), and, if to any Bank,
delivered or mailed to its address as set forth on the signature pages hereof,
or, as to any party, at such other address as such party may designate in
writing to each party concerned. Except as otherwise provided herein, all
communications and notices provided for hereunder shall be effective when
deposited in the mails, postage prepaid, or delivered to the telegraph company,
addressed as aforesaid.
SECTION 8.04. Costs, Expenses and Taxes. The Company agrees to pay all
costs and expenses in connection with the preparation, execution and delivery of
this Agreement and the Notes (including the reasonable fees of Messrs. Simpson
Thacher & Bartlett, special counsel to the Agent) and costs and expenses, if
any, in connection with the enforcement of this Agreement and the Notes, as well
as any and all stamp and other taxes payable or determined to be payable in
connection with the execution or delivery of this Agreement or the Notes, and to
save the holders of the Notes harmless from any and all liabilities with respect
to or resulting from any delay or omission to pay such taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of this Agreement or the Notes.
SECTION 8.05. Binding Effect and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Company and the Banks and their
respective successors and assigns, except that the Company may not assign or
transfer its rights hereunder without prior written consent of the Banks. A Bank
may not assign or transfer its rights hereunder, subject to any legal or
regulatory requirements, without prior written consent of the Company, provided,
however, that each Bank may at any time grant participations in its Loans and
its Commitment ("Participations") to other Persons (such Persons being herein
called "Participants"). The Company agrees that each Participant shall be deemed
to be a "Bank" for purposes of Sections 2.12(a), 2.14 and 2.20 with respect to
its Participations outstanding from time to time. Each Bank agrees with the
Company that (a) each such Participation shall be created in the ordinary course
of the commercial banking business of such Bank and (b) such Participation shall
be created by such Bank in compliance with all applicable laws. Each Bank agrees
that the creation of Participations shall require no action on the part of the
Company. The creation of a Participation shall not give any Participant any
rights under this Agreement or any Note nor shall it relieve any Bank of its
obligations under this Agreement. Each assignment will be subject to the payment
of a service fee of $3,000 to the Agent by the parties to such assignment.
SECTION 8.06. Termination and Substitution of Bank. (a) If (i) the
obligation of any Bank to make, convert Loans into or continue Eurodollar Loans
has been suspended pursuant to Section 2.13, (ii) any Bank has demanded
compensation under Section 2.12 or (iii) any Bank shall decline to extend its
Commitment pursuant to Section 2.05(c), the Company may, upon three Business
Days' notice to such Bank through the Agent, prepay in full all of the
outstanding Loans of such Bank, or its assignee, together with accrued interest
thereon to the date of prepayment and all other amounts payable hereunder to
such Bank accrued to the date of prepayment, and concurrently therewith
terminate this Agreement with respect to such Bank by giving notice of such
termination to the Agent and such Bank.
(b) If any Bank shall become a Defaulting Bank, the Company may, in its
sole discretion and without prejudice to any right or remedy that the Company
may have against such Defaulting Bank with respect to, on account of, arising
from or relating to any event pursuant to which such Bank shall be a Defaulting
Bank, upon notice to such Defaulting Bank and the Agent, (i) if at such time
there are no Loans of such Defaulting Bank outstanding, terminate this Agreement
with respect to such Defaulting Bank, or (ii) if at such time such
24
<PAGE> 28
Defaulting Bank shall have Loans outstanding, subject to obtaining a substitute
bank or banks to assume the Commitment of such Defaulting Bank pursuant to
subsection (c) below, terminate this Agreement with respect to such Defaulting
Bank and prepay in full the outstanding Loans of such Defaulting Bank together
with accrued interest to the date of prepayment, provided that the provisions of
Section 2.20 shall not apply to any such prepayment.
(c) If the Company terminates this Agreement with respect to any Bank under
this Section 8.06, the Company shall use its best efforts, with the assistance
of the Agent, to seek a mutually satisfactory substitute bank or banks (which
may be one or more of the Banks) to assume the Commitment of such relevant Bank.
SECTION 8.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 8.08. Headings. Article and Section headings used in this Agreement
are for convenience only and shall not affect the construction of this
Agreement.
SECTION 8.09. Execution in Counterparts. This Agreement may be executed by
the parties hereto individually or in any combinations of the parties hereto in
several separate counterparts, each of which shall be an original, and all of
which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ANADARKO PETROLEUM CORPORATION
By: A. L. Richey
Title: Treasurer
CHEMICAL BANK
By: Peter N. Anderson
Title: Managing Director
Domestic Lending Office and Address
for Notices:
Chemical Bank
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: John Gehebe
Phone: (212) 270-3531
Fax: (212) 270-4892
Eurodollar Lending Office:
Chemical Bank
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: John Gehebe
Phone: (212) 270-3531
Fax: (212) 270-4892
25
<PAGE> 29
THE CHASE MANHATTAN BANK,
NATIONAL ASSOCIATION
By: Bettylou J. Robert
Title: Vice President
Domestic Lending Office and Address
for Notices:
The Chase Manhattan Bank, National
Association
1 Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attention: Global Energy
Mr. Vito Cipriano
Fax: (212) 552-1687
with copies to:
Chase Manhattan Southwest
1100 Milam
Suite 2345
Houston, Texas 77002
Attention: Mr. Richard S. Walker
Fax: (713) 751-9122
Eurodollar Lending Office:
The Chase Manhattan Bank, National
Association
1 Chase Manhattan Plaza
3rd Floor
New York, New York 10081
Attention: Global Energy
Mr. Vito Cipriano
Fax: (212) 552-1687
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: Vernon M. Ford, Jr.
Title: Vice President
Domestic Lending Office and Address
for Notices:
Morgan Guaranty Trust Company of New
York
60 Wall Street
22nd Floor
New York, New York 10260
Attention: Jeannie Mattson
26
<PAGE> 30
Eurodollar Lending Office:
J. P. Morgan Delaware
902 Market Street
Wilmington, Delaware 19801
Attention: Loan Department
Telex
Number/Answerback:
177425/NBDELUT
THE BANK OF NEW YORK
By: Renee Biglani
Title: Vice President
Domestic Lending Office and Address
for Notices:
The Bank of New York
Attention: Brad Davis and/or
Commercial Loan
Department
1 Wall Street
19th Floor
New York, New York 10286
Eurodollar Lending Office:
The Bank of New York
Attention: Eurodollar/Cayman
Islands Funding Area
101 Barclay St.
New York, New York 10286
Ref: Anadarko Petroleum Corporation
CONTINENTAL BANK N.A.
By: R. R. Ingersoll
Title: Vice President
Address for Notices:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: R. R. Ingersoll
Domestic Lending Office:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Kathy Hill-Rayford
27
<PAGE> 31
Eurodollar Lending Office:
Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Kathy Hill-Rayford
CREDIT SUISSE
By: William P. Murray
Title: Member of Senior Management
By: Eristinn R. Kristinsson
Title: Associate
Domestic Lending Office and Address
for Notices:
Credit Suisse
Tower 49
12 East 49th Street
New York, New York 10017
Attention: Credit Department,
Kris Kristinsson
Eurodollar Lending Office:
Credit Suisse
Tower 49
12 East 49th Street
New York, New York 10017
Attention: Credit Department,
Kris Kristinsson
28
<PAGE> 32
MELLON BANK, N.A.
By: Mary Elles Usher
Title: Vice President
Domestic Lending Office and Address
for Notices:
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2301
Pittsburgh, Pennsylvania 15259
Attention: Loan Administration
with copies to:
Mellon Bank, N.A.
1100 Louisiana Street
Suite 3600
Houston, Texas 77002
Attention: Janet Jenkins
One Mellon Bank Center
44th Floor
Pittsburgh, Pennsylvania 15258
Attention: Energy & Utilities
Group
Eurodollar Lending Office:
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2301
Pittsburgh, Pennsylvania 15259
Attention: Loan Administration
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: David Sisler
Title: Vice President
Domestic Lending Office and Address
for Notices:
Bank of America National Trust and
Savings Association
1850 Gateway Blvd.
Concord, California 94520
Eurodollar Lending Office:
Bank of America National Trust and
Savings Association
1850 Gateway Blvd.
Concord, California 94520
29
<PAGE> 33
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: Xavier Ratouis
Title: Authorized Signature
Address for Notices:
c/o Credit Lyonnais Houston
Representative Office
1000 Louisiana Street #5360
Houston, TX 77002
Attention: W. Keith Buchanan
Fax: (713) 751-0307
Domestic Lending Office:
Credit Lyonnais Cayman Island Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
Eurodollar Lending Office:
Credit Lyonnais Cayman Island Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Loan Servicing
THE FIRST NATIONAL BANK OF CHICAGO
By: Martha Redeck Smith
Title: Vice President
Domestic Lending Office and Address
for Notices:
The First National Bank of Chicago
One First National Plaza
Suite 0634, 10th Floor
Chicago, Illinois 60670
Attention: Edward Milka
Phone (312) 732-8573
Fax: (312) 732-4840
Telex: 190201; Ansback
FNBCUT
Eurodollar Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0634, 10th Floor
Chicago, Illinois 60670
Attention: Edward Milka
Phone (312) 732-8573
Fax: (312) 732-4840
Telex: 190201; Ansback
FNBCUT
30
<PAGE> 34
NATIONSBANK OF TEXAS, N.A.
By: Paul A. Squirs
Title: Senior Vice President
Domestic Lending Office and Address
for Notices:
NationsBank of Texas, N.A.
P.O. Box 830104
Dallas, Texas 75283-0104
Attention: Vicky McConnell
Eurodollar Lending Office:
NationsBank of Texas, N.A.
P.O. Box 830104
Dallas, Texas 75283-0104
Attention: Vicky McConnell
CHEMICAL BANK, as Agent
By: Peter N. Anderson
Title: Managing Director
Address: 270 Park Avenue
New York, New York 10017
Attention: Energy Division
31
<PAGE> 35
EXHIBIT A
(FORM OF NOTE)
$______ *______ New York, New York
__________________, 1994
For value received, ANADARKO PETROLEUM CORPORATION, a Delaware corporation
(the "Company"), promises to pay on the Maturity Date, to the order of
___________________ (the "Bank") at the office of Chemical Bank specified in
Section 2.11 of the 364-Day Credit Agreement, dated as of May 24, 1994, among
the Company, the Bank, the several other banks party thereto and Chemical Bank,
as agent (as amended, supplemented or modified from time to time hereafter, the
"Agreement"; terms defined in the Agreement shall have their defined meanings
when used in this Note), in lawful money of the United States of America, the
principal amount of_______ * ______ DOLLARS ($ ________ * ______) or, if less
than such principal amount, the aggregate unpaid principal amount of all Loans
made by the Bank to the undersigned pursuant to Section 2.01 of the Agreement.
The undersigned further agrees to pay interest at said office, in like money,
on the unpaid principal amount owing hereunder from time to time from the date
hereof at the rates specified in Section 2.09 of the Agreement. Such interest
shall be payable on the dates specified in Section 2.09 of the Agreement. The
date, Type and amount of each Loan made by the Bank pursuant to Section 2.01 of
the Agreement, each continuation thereof, each conversion of all or a portion
thereof to another Type and the date and amount of each payment of principal
with respect thereto shall be endorsed by the holder of this Note on Schedule A
annexed hereto, which holder may add additional pages to such Schedule. No
failure to make or error in making any such endorsement as authorized hereby
shall affect the validity of the obligations of the Company hereunder or the
validity of any payment hereof made by the Company.
This Note is one of the Notes referred to in the Agreement and is entitled
to the benefits thereof and is subject to prepayment in whole or in part as
provided therein.
Upon the occurrence of any one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note may be declared
to be immediately due and payable as provided in the Agreement.
ANADARKO PETROLEUM CORPORATION
By ________________________________
Title:
__________________
* Insert amount of Bank's Commitment
A-1
<PAGE> 36
SCHEDULE A
LOANS AND REPAYMENTS
<TABLE>
=====================================================================================================================
AMOUNT TYPE AMOUNT OF
OF OF INTEREST PRINCIPAL NOTATION
DATE LOAN LOAN RATE REPAID MADE BY
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-2
<PAGE> 37
PAGE ... OF
SCHEDULE A
<TABLE>
=====================================================================================================================
AMOUNT TYPE PRINCIPAL
OF OF INTEREST AMOUNT OF NOTATION
DATE LOAN LOAN RATE REPAID MADE BY
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-3
<PAGE> 38
EXHIBIT B
EXTENSION AGREEMENT
Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77251-1330
Attention: Treasurer
Chemical Bank, as Agent
under the Credit Agreement
referred to below
270 Park Avenue
New York, NY 10017
Attention: Energy Division
Gentlemen:
The undersigned hereby agree to extend, effective on the date upon which
Banks having 100% of the Commitments then outstanding (after giving effect to
any assignments or terminations made as contemplated in Section 2.05(c) of the
364-Day Credit Agreement dated as of May 24, 1994 among Anadarko Petroleum
Corporation, the Banks listed therein and Chemical Bank, as Agent, as amended,
supplemented or modified from time to time (the "Credit Agreement")) shall have
executed this Extension Agreement (the "Extension Date"), the Termination Date
under the Credit Agreement to the date that is 364 days from the Extension Date.
Terms defined in the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and governed
by the laws of the State of New York.
CHEMICAL BANK
By ___________________________
Title:
(NAME OF BANK)*
By ___________________________
Title:
Agreed and accepted:
ANADARKO PETROLEUM CORPORATION
By ___________________________
Title:
CHEMICAL BANK, as Agent
By ___________________________
Title:
_________________
* Repeat for each Bank.
B-1
<PAGE> 1
[ANADARKO LETTERHEAD]
July 8, 1994
EXHIBIT 5
Anadarko Petroleum Corporation
17001 Northchase Drive
P. O. Box 1330
Houston, Texas 77251-1330
Gentlemen:
I have assisted in the preparation of the Registration Statement of
Anadarko Petroleum Corporation, a Delaware corporation (the "Company") on Form
S-8 under the Securities Act of 1933, as amended, covering 4,000,000 shares of
the Company's common stock, par value $0.10 per share ("Common Stock"), which
may be issued pursuant to awards granted under the Company's 1993 Stock
Incentive Plan (the "Plan").
In preparing this opinion, I have examined and relied upon
certificates of public officials and originals or copies, authenticated to my
satisfaction, of the corporate records of the Company. I have made such other
investigation as in my opinion is proper as a basis for the opinions
hereinafter stated.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The shares of Common Stock issuable pursuant to awards granted under
the Plan have been duly authorized and, when issued and sold in
accordance with the terms of the Plan for a consideration of at least
$0.10 per share, will be validly issued, fully paid, and
nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement referred to
above and to the use of my name
<PAGE> 2
Anadarko Petroleum Corporation
July 8, 1994
Page 2
therein, but I do not thereby admit that I am within the class of persons whose
consent is required under the terms of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission issued
thereunder.
Very truly yours,
Suzanne Suter
------------------------
Suzanne Suter
<PAGE> 1
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Anadarko Petroleum Corporation:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Anadarko Petroleum Corporation of our report dated January 27, 1994,
relating to the consolidated balance sheets of Anadarko Petroleum Corporation
and subsidiaries as of December 31, 1993 and 1992, and the related consolidated
statements of income, stockholders' equity, and cash flows and related
schedules for each of the years in the three-year period ended December 31,
1993, which report appears in the December 31, 1993 Annual Report on Form 10-K
of Anadarko Petroleum Corporation, and to the reference to our firm under the
heading "Incorporation of Certain Documents by Reference" in the registration
statement.
KPMG PEAT MARWICK
Houston, Texas
July 8, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Officer and/or
Director of ANADARKO PETROLEUM CORPORATION (the "Company"), a Delaware
corporation, does hereby constitute and appoint ROBERT J. ALLISON, JR., SUZANNE
SUTER and MICHAEL E. ROSE and each of them his true and lawful attorney and
agent to do any and all acts and things and execute any and all instruments
which, with the advice of Counsel, said attorney and agent may deem necessary
or advisable to enable the company to comply with the Securities Act of 1933,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the filing under said Act of the Form S-8
Registration Statement registering equity securities, including specifically,
but without limitation thereof, to sign his name as an Officer and/or Director
of the Company, to the Form S-8 Registration Statement filed with the
Securities and Exchange Commission, and to any instrument or document filed as
a part of, or in connection with, said S-8 Registration Statement or amendment
thereto; and the undersigned does hereby ratify and confirm all that said
attorney and agent shall do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents
this 8th day of July, 1994.
<TABLE>
<S> <C>
Robert J. Allison, Jr. Ronald Brown
- ---------------------------------- ----------------------------------
Robert J. Allison, Jr. Ronald Brown
Conrad P. Albert James L. Bryan
- ---------------------------------- ----------------------------------
Conrad P. Albert James L. Bryan
Larry Barcus John R. Gordon
- ---------------------------------- ---------------------------------
Larry Barcus John R. Gordon
Michael E. Rose Charles M. Simmon
- ----------------------------------- -----------------------------------
Michael E. Rose Charles M. Simmons
Suzanne Suter
- --------------------------------- ---------------------------------
J. R. Larson Suzanne Suter
</TABLE>
