<PAGE>
<PAGE> EXHIBIT 4(b)
EXECUTION ORIGINAL
Amended and Restated
Competitive Advance/Revolving Credit Agreement
Among
Union Pacific Resources Group Inc.,
as Borrower
Anadarko Canada Corporation,
as a Canadian Borrower
Anadarko Petroleum Corporation,
as Guarantor
The Chase Manhattan Bank,
as Administrative Agent
and
The Chase Manhattan Bank of Canada
as Canadian Sub-Agent
and
The Banks Named Herein,
as Banks
Dated as of October 25, 2000
Chase Securities Inc.,
as Arranger
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
Section 1.01. Certain Defined Terms 1
Section 1.02. Computation of Time Periods 18
Section 1.03. Accounting Terms 18
Section 1.04. Number and Gender of Words 18
Section 1.05. Exchange Rates and Assigned Dollar Values 18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES 19
Section 2.01. The Commitments 19
Section 2.02. Making the Contract Advances 20
Section 2.03. The Competitive Advances 21
Section 2.04. Conversion and Continuation of Contract
Borrowings 25
Section 2.05. Fees 27
Section 2.06. Reduction or Termination of the Commitments 27
Section 2.07. Repayment of Advances; Prepayment 28
Section 2.08. Interest 29
Section 2.09. Alternate Rate of Interest 30
Section 2.10. Increased Costs; Increased Capital 30
Section 2.11. Additional Interest on Eurodollar Rate Advances32
Section 2.12. Change in Legality 32
Section 2.13. Payments and Computations 32
Section 2.14. Taxes on Payments 34
Section 2.15. Sharing of Payments, Etc. 36
Section 2.16. Removal of a Bank 37
Section 2.17. Canadian Borrowers; Canadian Commitments 37
Section 2.18. Canadian Banker's Acceptances 38
ARTICLE III CONDITIONS OF LENDING 38
Section 3.01. Conditions Precedent to Closing 38
Section 3.02. Conditions Precedent to Each Borrowing 41
Section 3.03. Conditions Precedent to Canadian Borrowings 42
ARTICLE IV REPRESENTATIONS AND WARRANTIES 42
Section 4.01. Representations and Warranties by the Company42
Section 4.02. Representations and Warranties by the Guarantor43
ARTICLE V COVENANTS 44
ARTICLE VI EVENTS OF DEFAULT 46
ARTICLE VII THE ADMINISTRATIVE AGENT 48
Section 7.01. Authorization and Action 48
Section 7.02. Administrative Agent's Reliance, Etc. 49
Section 7.03. Administrative Agent and Affiliates 49
Section 7.04. Bank Credit Decision 49
Section 7.05. Indemnification 50
Section 7.06. Successor Administrative Agent 50
Section 7.07. Canadian Sub-Agent 51
ARTICLE VIII MISCELLANEOUS 51
Section 8.01. Amendments, Etc 51
Section 8.02. Notices, Etc. 52
Section 8.03. No Waiver; Remedies 52
Section 8.04. Costs, Expenses and Taxes 52
Section 8.05. Intentionally Omitted. 53
Section 8.06. Binding Effect and Assignment 53
Section 8.08. Governing Law 54
Section 8.09. Exceptions to Covenants 55
Section 8.10. Survival 55
Section 8.11. Invalid Provisions 55
Section 8.12. Maximum Rate 55
Section 8.13. Execution in Counterparts 55
Section 8.14. Not in Control 56
Section 8.15. Indemnification 56
Section 8.16. Entirety 57
Section 8.17. Waiver of Jury Trial 57
Section 8.18. Conversion of Currencies 58
Section 8.19. Interest Act (Canada) 58
Section 8.20. Termination of Guarantee Agreement 58
ARTICLE IX ANADARKO GUARANTY 59
Section 9.01. The Anadarko Guaranty 59
Section 9.02. Subrogation 60
Annex I Banker's Acceptance
Exhibit A-1 Form of Notice of Contract Borrowing
Exhibit A-2 Form of Notice of Competitive Borrowing
Exhibit A-3 Form of Notice of Competitive Bid Request
Exhibit A-4 Form of Competitive Bid
Exhibit A-5 Form of Competitive Bid Acceptance/Reject
Letter
Exhibit B Form of Assignment and Acceptance Agreement
Exhibit C Form of Opinion of Company's Counsel
Exhibit D Form of Notice of Drawing
Exhibit E Form of Discount Note
Schedule I Banks, Lending Offices and Commitments
This AMENDED AND RESTATED COMPETITIVE ADVANCE/REVOLVING
CREDIT AGREEMENT is entered into as of October 25, 2000, among
UNION PACIFIC RESOURCES GROUP INC., a corporation organized under
the laws of the State of Utah (the "Company"), ANADARKO CANADA
CORPORATION, a corporation organized under the laws of the
Province of Alberta, Canada ("ACC"), ANADARKO PETROLEUM
CORPORATION, a corporation organized under the laws of the State
of Delaware (the "Guarantor"), the Banks (as hereinafter
defined), THE CHASE MANHATTAN BANK, as the Administrative Agent
(as hereinafter defined) and THE CHASE MANHATTAN BANK OF CANADA,
as the Canadian Sub-Agent (as hereinafter defined).
R E C I T A L S:
A. The Company, the Banks, the Administrative Agent and
the Canadian Sub-Agent are parties to that certain Five-Year
Competitive Advance/Revolving Credit Agreement dated as of
October 27, 1998, as amended pursuant to Amendment No. 1 dated as
of October 22, 1999 (said agreement as so amended the "Original
Credit Agreement").
B. Subject to the terms and conditions of this Agreement,
the Company, the Banks, the Administrative Agent and the Canadian
Sub-Agent have agreed to amend and restate the Original Credit
Agreement to, among other things, reduce the Commitments of the
Banks, provide a guarantee by the Guarantor of the Obligations of
the Company, and to amend the Maturity Date and the Termination
Date (as such terms are defined in the Original Credit
Agreement).
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants set forth herein, the Company, ACC, as the only
Canadian Borrower under the Original Credit Agreement, the
Guarantor, the Banks, the Administrative Agent and the Canadian
Sub-Agent hereby agree as follows:
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"ACC" has the meaning specified in the Introduction to
this Agreement.
"Acceptance" means a Draft denominated in Canadian
Dollars drawn by any Canadian Borrower on a Canadian Bank and
includes a depository bill within the meaning of the Depository
Bills and Notes Act (Canada), as provided therein, in each case
conforming to the requirements of this Agreement and accepted by
such Canadian Bank in accordance with this Agreement. As the
context shall require, "Acceptance" also has the meaning assigned
to it in paragraph (j) of Annex I.
"Acceptance Borrowing" means a group of Acceptances in
respect of Drafts that are drawn by the same Canadian Borrower
and accepted by the Canadian Banks on the same date and have the
same maturity date.
"Acceptance Equivalent Loan" means an advance made
under this Agreement in Canadian Dollars by a Canadian Bank to a
Canadian Borrower evidenced by a Discount Note.
"Acceptance Fee" has the meaning assigned to it in
Section 2.05(c).
"Acceptance Obligation" means with respect to each
Acceptance, the obligation of the applicable Canadian Borrower to
pay to the Canadian Bank that accepted such Acceptance the face
amount thereof as required by this Agreement and the terms of
such Acceptance.
"Administrative Agent" means The Chase Manhattan Bank
(the successor by merger to Chase Bank of Texas, N.A.) and its
permitted successor or successors as administrative agent for the
Banks under this Agreement, and, in respect of Canadian Advances,
means the Canadian Sub-Agent.
"Advance" means any US Advance or Canadian Advance.
"Affiliate" of a Person means any other individual or
entity who directly or indirectly controls, is controlled by, or
is under common control with that Person. For purposes of such
definition, "control," "controlled by," and "under common control
with" mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of
a Person (whether through ownership of voting securities or other
interests, by contract or otherwise).
"Agreement" means this Amended and Restated Competitive
Advance/Revolving Credit Agreement, as further amended, modified
and supplemented from time to time, including, without
limitation, any such supplement in respect of Competitive
Advances under Section 2.03.
"Anadarko Guaranty" means the guaranty of the Guarantor
contained in Article IX.
"Applicable BA Discount Rate" means, with respect to an
Acceptance (a) being purchased by any Canadian Schedule I Bank on
any day, the percentage discount rate equal to the CDOR Rate on
such day (expressed to two decimal places and rounded upward, if
necessary, to the nearest 1/100th of 1%) for bankers' acceptances
in an amount and having a maturity date comparable to the amount
and maturity date of such Acceptance, and (b) being purchased by
any Canadian Schedule II Bank on any day, the lesser of (i) the
arithmetic average of the percentage discount rates (expressed to
two decimal places and rounded upward, if necessary, to the
nearest 1/100th of 1%) quoted by the Canadian Schedule II
Reference Banks as that at which the Canadian Schedule II
Reference Banks would, in accordance with normal practice, at or
about 10:00 a.m. (Toronto, Ontario time), on such day, be
prepared to purchase bankers' acceptances in an amount and having
a maturity date comparable to the amount and maturity date of
such Acceptance and (ii) the percentage discount rate calculated
pursuant to clause (a) above, plus .08% per annum.
"Applicable Canadian Pension Legislation" means, at any
time, the Income Tax Act (Canada), the Pension Benefits Standards
Act, 1985 (Canada), the Employment Pension Plans Act (Alberta)
and any other pension legislation then applicable to any Canadian
Borrower, including all regulations made thereunder, and all
rules, regulations, rulings and interpretations made or issued by
any governmental authority having or asserting jurisdiction in
respect thereof.
"Applicable Lending Office" means, with respect to each
Bank, such Bank's Domestic Lending Office in the case of an
Alternate Base Rate Advance, such Bank's Canadian Lending Office
in the case of a Canadian Advance, such Bank's Eurodollar Lending
Office in the case of a Eurodollar Rate Contract Advance and, in
the case of a Competitive Advance, the office or affiliate of
such Bank notified by such Bank to the Company and the
Administrative Agent as such Bank's Applicable Lending Office
with respect to such Competitive Advance.
"Applicable Margin" means, on any date of determination
of the interest rate for any Eurodollar Rate Contract Borrowing
or of any Facility Fees or Acceptance Fees, the applicable
percentage set forth in the table below for Eurodollar Rate
Contract Borrowings or Facility Fees or Acceptance Fees, as
appropriate, which corresponds to the ratings (or implied
ratings) established by both S&P and Moody's applicable to the
Guarantor's senior, unsecured, non-credit-enhanced long-term
indebtedness for borrowed money ("Index Debt") on such date of
determination; provided that at any time when (i) the Canadian
Exposure hereunder exceeds (ii) 50% of the Maximum Canadian
Allocation Amount, the Applicable Margin for Acceptance Fees
shall be increased by 0.125%:
Ratings Applicable Applicable Drawn
Margin for Margin for Cost
Eurodollar Facility
Rate Fees
Contract
Borrowings
and
Acceptance
Fees
Category 1 Greater than or equal to A-/A3 0.37% 0.08% 0.45%
Category 2 BBB+/Baa1 0.40% 0.10% 0.50%
Category 3 BBB/Baa2 0.50% 0.125% 0.625%
Category 4 BBB-/Baa3 0.50% 0.15% 0.65%
Category 5 Less than BBB-/Baa3 0.70% 0.25% 0.95%
For purposes of the foregoing, (a) if neither Moody's nor S&P
shall have in effect a rating for Index Debt (other than by
reason of the circumstances referred to in the last sentence of
this definition), then both such rating agencies will be deemed
to have established ratings for Index Debt in Category 5; (b) if
only one of Moody's or S&P shall have in effect a rating for
Index Debt, the Guarantor and the Banks will negotiate in good
faith to agree upon another rating agency to be substituted by an
amendment to this Agreement for the rating agency which shall not
have a rating in effect, and in the absence of such amendment the
Applicable Margin will be determined by reference to the
available rating; (c) if the ratings established by Moody's and
S&P shall fall within different Categories, the Applicable Margin
shall be determined by reference to the numerically lower
Category (for example, if the rating from S&P is in Category 1
and the rating from Moody's is in Category 2, the Applicable
Margin shall be determined by reference to Category 1); and
(d) if any rating established by Moody's or S&P shall be changed
(other than as a result of a change in the rating system of
either Moody's or S&P), such change shall be effective as of the
date on which such change is first announced by the rating agency
making such change. Each change in the Applicable Margin shall
apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of either
Moody's or S&P shall change, the Guarantor and the Banks shall
negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system.
If both Moody's and S&P shall cease to be in the business of
rating corporate debt obligations, the Guarantor and the Banks
shall negotiate in good faith to agree upon a substitute rating
agency and to amend the references to specific ratings in this
definition to reflect the ratings used by such substitute rating
agency.
"Applicable Rate" means:
(a) with respect to Alternate Base Rate Advances, the
Alternate Base Rate;
(b) with respect to Eurodollar Rate Contract Advances,
the Eurodollar Rate plus the Applicable Margin for Eurodollar
Rate Contract Borrowings; and
(c) with respect to Canadian Prime Rate Contract
Advances, the Canadian Prime Rate.
"Assessment Rate" means for any date of determination,
the annual rate (rounded upwards, if necessary, to the next 1/100
of 1%) most recently estimated by the Administrative Agent as the
then current net annual assessment rate that will be employed in
determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in US Dollars at the Administrative Agent's
domestic offices.
"Assigned Dollar Value" means, with respect to any
Canadian Borrowing at any time, (a) in the case of Canadian
Borrowings denominated in US dollars, the amount thereof and (b)
in the case of Canadian Borrowings denominated in Canadian
Dollars, the US Dollar Equivalent thereof most recently
determined pursuant to Section 1.05.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Bank and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form
of Exhibit B hereto.
"Attributable Debt" means any particular sale and
leaseback transaction under which the Guarantor or any of its
Subsidiaries 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.
"BA Discount Proceeds" means, in respect of any
Acceptance being purchased by a Canadian Bank on any day under
this Agreement, an amount (rounded to the nearest whole Canadian
cent, and with one-half of one Canadian cent being rounded up)
calculated on such day by multiplying:
(a) the face amount of such Acceptance; by
(b) the quotient equal to one divided by the sum of
one plus the product of:
(i) the Applicable BA Discount Rate applicable to
such Acceptance; and
(ii) a fraction, the numerator of which is the
number of days remaining in the term of such Acceptance and
the denominator of which is 365;
with such quotient being rounded up or down to the nearest fifth
decimal place and .000005 being rounded up.
"Banks" means the financial institutions named on
Schedule I (as the same may be amended from time to time by the
Administrative Agent to reflect assignments made in accordance
with Section 8.06 of this Agreement), and any and all other
financial institutions which from time to time become parties to
this Agreement pursuant to the terms and conditions of Section
8.06 of this Agreement. Canadian Schedule II Banks named
(whether as of the date hereof or by assignment) on Schedule I to
this Agreement must enter into this Agreement together with a
Designated Bank Affiliate (which shall also be named on Schedule
I to this Agreement) which expressly agrees to be bound by the
terms of, and to make Advances in accordance with, this
Agreement.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America or any successor
thereto.
"Borrowers" means the Company and any Canadian
Borrower.
"Borrowing" means a US Borrowing or a Canadian
Borrowing.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City or
Dallas, Texas, are authorized or required by law to remain
closed; provided that (a) when used in connection with a
Eurodollar Rate Advance to the Company, the term "Business Day"
shall also exclude any day on which banks are not open for
dealings in US Dollar deposits in the London interbank market or
(b) when used in connection with a Canadian Borrowing, the term
"Business Day" shall exclude any day on which commercial banks
are not open for business in Toronto or Calgary, Canada and New
York City and when used in connection with a Eurodollar Rate
Advance to a Canadian Borrower, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in
US Dollar deposits in the London interbank market.
"Canadian Advance" means a Canadian Contract Advance or
a Canadian Competitive Advance.
"Canadian Alternate Base Rate" means, for any day, a
rate per annum equal to the lesser of (a) the Maximum Rate and
(b) the greater of (i) the US Base Rate in effect on such day,
and (ii) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof, "US Base Rate" means the
rate of interest per annum, announced from time to time by the
Canadian Sub-Agent as its base rate for lending US Dollars in
Canada (which base rate may not necessarily represent the lowest
or best rate actually charged to a customer); each change in the
US Base Rate shall be effective on the date such change is
announced as effective. For purposes hereof, "Federal Funds
Effective Rate" means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/16 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which
is a Business Day, the average (rounded upwards, if necessary, to
the next 1/16 of 1%) of the quotations for the day of such
transactions received by the Canadian Sub-Agent from three
Federal funds brokers of recognized standing selected by it. If
for any reason the Canadian Sub-Agent shall have determined
(which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability of the Canadian Sub-Agent
to obtain sufficient quotations in accordance with the terms
hereof, the Canadian Alternate Base Rate shall be determined
without regard to clause (b) (ii) of the first sentence of this
definition until the circumstances giving rise to such inability
no longer exist. Any change in the Canadian Alternate Base Rate
due to a change in the Maximum Rate, US Base Rate or the Federal
Funds Effective Rate shall be effective on the effective date of
such change in the Maximum Rate, US Base Rate or the Federal
Funds Effective Rate, respectively.
"Canadian Alternate Base Rate Advance" means a Canadian
Contract Advance which bears interest computed at the Canadian
Alternate Base Rate.
"Canadian Bank" means Canadian Schedule I Banks or
Canadian Schedule II Banks which are residents of Canada for
purposes of the Income Tax Act (Canada).
"Canadian Borrower" means any wholly owned Subsidiary
of the Company that is organized under the laws of Canada or any
jurisdiction therein and has been designated by the Company as a
Canadian Borrower in accordance with Section 2.17 and has not
ceased to be a Canadian Borrower as provided in such Section.
"Canadian Borrowing" means a Canadian Contract
Borrowing or a Canadian Competitive Borrowing.
"Canadian Commitment" means, with respect to any
Canadian Bank, the portion, if any, of such Canadian Bank's
Commitment that constitutes its Canadian Commitment to make a
Canadian Advance to a Canadian Borrower based upon allocations
made by the Company in accordance with Section 2.17.
"Canadian Competitive Advance" means either an
Acceptance created as part of, or a Eurodollar Rate Competitive
Advance as part of, a Competitive Borrowing resulting from the
competitive bidding procedures described in Section 2.03 and in
paragraph (m) of Annex I.
"Canadian Competitive Borrowing" means a Competitive
Borrowing consisting of Canadian Competitive Advances.
"Canadian Contract Advance" means either (a) an
Acceptance created as part of a Contract Borrowing or (b) a
Canadian Prime Rate Contract Advance or a Eurodollar Rate
Contract Advance made as part of a Contract Borrowing by a
Canadian Borrower.
"Canadian Contract Borrowing" means a Contract
Borrowing in Canadian Dollars or US Dollars consisting of
Canadian Contract Advances.
"Canadian Dollars" or "Canadian $" means lawful money
of Canada.
"Canadian Dollar Equivalent" means, on any date of
determination, with respect to any amount in US Dollars, the
equivalent in Canadian Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.05.
"Canadian Exposure" means, at any time, the sum of the
Assigned Dollar Values of outstanding Canadian Advances at such
time.
"Canadian Lending Office" means, with respect to any
Canadian Bank, the office or affiliate of such Canadian Bank
specified as its "Canadian Lending Office" opposite its name on
Schedule I hereto, or in the Assignment and Acceptance pursuant
to which it became a Canadian Bank, or such other office or
affiliate of such Canadian Bank as such Canadian Bank may from
time to time specify to the Company, the Administrative Agent and
the Canadian Sub-Agent.
"Canadian Prime Rate" means, for any day, a rate per
annum equal to the greater of (a) the rate per annum announced
from time to time by the Canadian Sub-Agent as its prime rate
(being the reference rate it will use for determining interest
rates on commercial loans denominated in Canadian Dollars to
borrowers in Canada) in effect at its principal office in Toronto
and (b) the One-Month CDOR Rate plus .625%. Each change in the
Canadian Prime Rate shall be effective on the date such change is
announced.
"Canadian Prime Rate Contract Advance" means a Canadian
Contract Advance in Canadian Dollars which bears interest
computed at the Canadian Prime Rate, payable monthly in arrears,
from the date of advance thereof.
"Canadian Prime Rate Contract Borrowing" means a
Canadian Contract Borrowing consisting of Canadian Prime Rate
Contract Advances.
"Canadian Schedule I Bank" means a Bank that is named
on Schedule I to the Bank Act (Canada).
"Canadian Schedule II Bank" means a Bank that is named
on Schedule II to the Bank Act (Canada).
"Canadian Schedule II Reference Banks" means The Chase
Manhattan Bank of Canada and Credit Suisse First Boston Canada,
or such two other Canadian Schedule II Banks as may be selected
by the Canadian Sub-Agent in consultation with the Company.
"Canadian Sub-Agent" means, initially, The Chase
Manhattan Bank of Canada, or any other sub-agent appointed by the
Administrative Agent pursuant to Section 7.07 of this Agreement.
"CDOR Rate" means, on any day, the annual rate of
interest which is determined as being the arithmetic average,
with respect to a particular term of Canadian Dollar bankers'
acceptances, of the rates displayed and identified as such on the
"Reuters' Screen CDOR Page" at approximately 10:00 a.m. (Toronto,
Ontario time) on such day for banks listed on Schedule I to the
Bank Act (Canada), or if such day is not a Business Day, then on
the immediately preceding Business Day (as adjusted by a Canadian
Bank after 10:00 a.m. (Toronto, Ontario time), to reflect any
error in a posted rate of interest or in the posted average
annual rate of interest).
"Change in Control" means (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
Guarantor unless the Board of Directors of the Guarantor shall
have publicly announced its support for such acquisition or (b) a
majority of the members of the Board of Directors of the
Guarantor on any date shall not have been (i) members of the
Board of Directors of the Guarantor 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
Guarantor as constituted on the date 12 months prior to such
date.
"Class", when used in respect of any Commitment,
Advance or Borrowing, refers to whether such Commitment is a US
Commitment or a Canadian Commitment, or whether such Advance is a
US Advance or a Canadian Advance, or whether such Borrowing is
comprised of US Advances or Canadian Advances, as the case may
be.
"Code" means the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commission" means 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
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" means, with respect to any Bank, the
amount set forth opposite such Bank's name on Schedule I under
the caption "Commitment", as such amount may be reduced pursuant
to Section 2.06 or increased pursuant to Section 2.16 or reduced
or increased by Section 8.06. The aggregate amount of the
Commitments of all Banks on the date of this Agreement is
$450,000,000.
"Company" has the meaning specified in the Introduction
to this Agreement.
"Company Guarantee" means each Guarantee Agreement (as
defined in the Original Credit Agreement) executed by the
Company.
"Competitive Adjustment" means, as to any Bank as at
any date, an amount equal to such Bank's pro rata (in accordance
with the Commitments) share of the aggregate amount (based on
Assigned Dollar Values, in the case of Canadian Advances) of all
Competitive Advances outstanding on such date (giving effect to
the payment of any Competitive Advances to be made on such date).
"Competitive Advance" means a US Competitive Advance or
a Canadian Competitive Advance.
"Competitive Borrowing" means a Borrowing consisting of
simultaneous Competitive Advances of the same Type and Class made
to the same Borrower from each of the Banks whose offer to make
Competitive Advances as part of such Borrowing has been accepted
by such Borrower under the competitive bidding procedures
described in Section 2.03 and in paragraph (m) of Annex I.
"Consolidated Indebtedness" means, at any time, the
Indebtedness of the Guarantor and its Subsidiaries, determined on
a consolidated basis as of such time in accordance with generally
accepted accounting principles, as such principles are in effect
on the date of this Agreement, excluding any such Indebtedness of
the Guarantor or its Subsidiaries that is non-recourse to the
Guarantor or the Borrowers.
"Consolidated Stockholders' Equity" means the par or
stated value of the stock of the Guarantor plus paid-in capital
plus retained earnings, all as shown on the consolidated balance
sheet of the Guarantor and its Subsidiaries prepared in
accordance with generally accepted accounting principles, as such
principles are in effect on the date of this Agreement.
"Contract Advance" means a US Contract Advance or a
Canadian Contract Advance.
"Contract Borrowing" means a Borrowing consisting of
simultaneous Contract Advances of the same Type and Class made to
the same Borrower ratably by all of the Banks pursuant to Section
2.01(a) or ratably by all of the Canadian Banks pursuant to
Section 2.01(b).
"Defaulting Bank" means any Bank that shall (i) fail to
make any Advance 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 Advance 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 and the Guarantor.
"Designated Bank Affiliate" means a US affiliate of a
Canadian Schedule II Bank which is a party to this Agreement.
"Discount Note" has the meaning specified in paragraph
(i) of Annex I.
"Domestic Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Domestic Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Acceptance pursuant to which it became a
Bank, or such other office or affiliate of such Bank as such Bank
may from time to time specify to the Company and the
Administrative Agent.
"Domestic Reserve Percentage" means, for any Interest
Period, the reserve percentage applicable on the first day of
such Interest Period under regulations issued from time to time
by the Board for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City, with deposits exceeding
one billion US Dollars with respect to liabilities consisting of
or including (among other liabilities) US Dollar nonpersonal time
deposits in the United States of America with a maturity equal to
such Interest Period.
"Draft" means a draft or bill of exchange or depository
bill within the meaning of the Depository Bills and Notes Act
(Canada), payable in Canadian Dollars, in the form used from time
to time by each Canadian Bank, respectively, in connection with
the creation of Acceptances in accordance with the provisions of
Annex I.
"Eligible Assignee" means: (a) any of the following
entities: (i) a commercial bank or other financial institution
organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of
$3,000,000,000 and a combined capital and surplus of at least
$150,000,000; (ii) a commercial bank or other financial
institution organized under the laws of any other country which
is a member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $3,000,000,000 and
a combined capital and surplus of at least $150,000,000; provided
that such bank or financial institution is acting through a
branch or agency located in the United States of America, in the
country in which it is organized or in another country which is
also a member of the OECD; and (iii) the central bank of any
country which is a member of the OECD, (b) a Bank or an Affiliate
of any Bank; provided that with regard to clause (a) and clause
(b) of this sentence an "Eligible Assignee" of a Canadian Bank
must be a Canadian Bank if the assignee will have a Maximum
Canadian Commitment Amount and provided further that an assignee
which is a Canadian Schedule II Bank must enter into this
Agreement together with a Designated Bank Affiliate (which shall
also be named on Schedule I to this Agreement) which expressly
agrees to be bound by the terms of, and to make Advances in
accordance with, this Agreement, or (c) upon the occurrence and
during the continuance of an Event of Default, any other Person.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D.
"Eurodollar Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office or affiliate is specified,
its Domestic Lending Office), or such other office or affiliate
of such Bank as such Bank may from time to time specify to the
Company and the Administrative Agent.
"Eurodollar Rate" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate
per annum equal to the lesser of (a) the Maximum Rate and (b) a
rate of interest determined on the basis of at least two offered
rates for deposits in US Dollars for a period equal to the
applicable Interest Period commencing on the first day of such
Interest Period, appearing on the Reuters Screen LIBO Page as of
11:00 a.m. (London time) on the day that is two Business Days
prior to the first day of the Interest Period. If at least two
such offered rates appear on the Reuters Screen LIBO Page, the
rate with respect to such Interest Period will be the arithmetic
average (rounded upwards to the next 1/16th of 1%) of such
offered rates. If fewer than two offered rates appear,
"Eurodollar Rate" in respect of any Interest Period will be
determined on the basis of the rates at which deposits in US
Dollars are offered by the Administrative Agent at approximately
11:00 a.m. (London time) on the day that is two Business Days
preceding the first day of such Interest Period to prime banks in
the London interbank market for a period equal to such Interest
Period commencing on the first day of such Interest Period.
"Eurodollar Rate Advance" means any Eurodollar Rate
Contract Advance or Eurodollar Rate Competitive Advance.
"Eurodollar Rate Competitive Advance" means a
Competitive Advance which bears interest based on the Eurodollar
Rate.
"Eurodollar Rate Contract Advance" means a Contract
Advance in US Dollars which bears interest based on the
Eurodollar Rate.
"Eurodollar Rate Contract Borrowing" means a Contract
Borrowing that bears interest based on the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of any Bank for
any Eurodollar Rate Advance means the reserve percentage
applicable to such Bank on (a) in the case of a Contract Advance,
the first day of the Interest Period then applicable to such
Contract Advance and (b) in the case of a Competitive Advance,
the date of such Competitive Advance, under regulations issued
from time to time by the Board for determining the reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) under
Regulation D, or in the case of Canadian Banks, under rules or
regulations issued by any governmental authority having or
asserting lawful jurisdiction over the Canadian Banks, then
applicable to such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period or the term of such Competitive
Advance, as the case may be.
"Events of Default" has the meaning specified in
Article VI.
"Exchange Rate" means, on any Business Day (a) with
respect to Canadian Dollars in relation to US Dollars, the spot
rate as quoted by the Bank of Canada as its noon spot rate at
which US Dollars are offered on such Business Day for Canadian
Dollars, and (b) with respect to US Dollars in relation to
Canadian Dollars, the spot rate as quoted by the Bank of Canada
as its noon spot rate at which Canadian Dollars are offered on
such day for US Dollars; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted,
the Administrative Agent, after consultation with the Company,
may use any reasonable method it deems appropriate to determine
such rate, and such determination shall be presumed correct
absent manifest error.
"Facility Fee" has the meaning given to such term in
Section 2.05.
"Federal Funds Effective Rate" has the meaning given to
such term in the definition of "US Alternate Base Rate" in this
Section 1.01.
"Financial Officer" of the Company shall mean its
chief financial officer, principal accounting officer, Treasurer,
or Controller or such other person or persons designated by the
Company in writing to the Administrative Agent and the Canadian
Sub-Agent (such written designation shall include name, title and
an original specimen signature of each such person).
"Fixed Rate" means an interest rate per annum
(expressed in the form of a decimal to no more than four decimal
places) specified by a Bank making a US Competitive Advance under
the competitive bidding procedure described in Section 2.03.
"Fixed Rate Competitive Advance" means a US Competitive
Advance which bears interest based on the Fixed Rate.
"Guaranteed Obligations" has the meaning specified in
Section 9.01(a).
"Guarantor" has the meaning specified in the
Introduction to this Agreement.
"Indebtedness" means 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 (other than in
respect of advance payments or production payments received in
the ordinary course of business for hydrocarbons which must be
delivered within 18 months after the date of such payment); or is
in respect of a guarantee of any of the foregoing obligations of
another Person.
"Index Debt" has the meaning specified in the
definition of "Applicable Margin" in Section 1.01.
"Interest Period" means, (a) for each Contract Advance
comprising part of the same Contract Borrowing, the period
commencing on the date of such Contract Advance or on the last
day of the immediately preceding Interest Period applicable to
such Contract Advance, as the case may be, and ending on the last
day of the period selected by the applicable Borrower pursuant to
the provisions below; or (b) for each Competitive Advance
comprising part of the same Competitive Borrowing, the period
commencing on the date of such Competitive Advance and ending on
the maturity selected by the applicable Borrower pursuant to the
provisions of Section 2.03(a). The duration of each such
Interest Period shall be (i) in the case of a Canadian Alternate
Base Rate Advance or a US Alternate Base Rate Advance or a
Canadian Prime Rate Contract Advance, one month, (ii) in the case
of a Eurodollar Rate Advance, 1, 2, 3, or 6 months, as the
applicable Borrower may select (in the case of Contract Advances)
by notice to the Administrative Agent pursuant to Section
2.02(a), and in the case of Competitive Advances, by notice to
Administrative Agent pursuant to Section 2.03(a) and (iii) in the
case of an Acceptance Borrowing, 30, 60 or 90 days (or such other
period as agreed to by the Canadian Sub-Agent and the Canadian
Banks), as the applicable Canadian Borrower may select by notice
pursuant to either Section 2.03(a) or paragraph (c) of Annex I
attached hereto, as applicable; provided, however, that:
(A) Interest Periods commencing on the same date for
Contract Advances comprising part of the same Contract
Borrowing shall be of the same duration;
(B) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day in each
of New York City , Dallas, Texas, Toronto, Ontario and
London, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day in all
such cities; provided that in the case of any Interest
Period for a Eurodollar Rate Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day in all such cities; and
(C) no Interest Period shall end on a date later than
the Maturity Date.
"Lien" means any mortgage, pledge, security interest,
lien, encumbrance, 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 out of the production from which such
production payment is payable.
"Loan Papers" means (a) this Agreement (including the
Anadarko Guaranty), certificates delivered pursuant to this
Agreement and Exhibits and Schedules thereto; (b) any Notices,
Drafts, Acceptances and Discount Notes; (c) any notice
designating a Canadian Borrower pursuant to Section 2.17; and (d)
all renewals, extensions or restatements of, or supplements or
amendments to, any of the foregoing.
"Majority Banks" means at any time Banks that in the
aggregate (a) hold at least 51% of the sum of the Commitments at
the time, or (b) after the expiry or termination of the
Commitments, hold at least 51% of the aggregate unpaid principal
amount of the Advances, determined based on Assigned Dollar
Values in the case of Canadian Advances.
"Maturity Date" means October 24, 2001.
"Maximum Amount" and "Maximum Rate" means, for each
Bank, the maximum non-usurious amount and the maximum nonusurious
rate of interest which, under applicable law, such Bank is
permitted to contract for, charge, take, reserve or receive on
the Obligation.
"Maximum Canadian Allocation Amount" means
$298,200,000.
"Maximum Canadian Commitment Amount" means, with
respect to any Bank, the amount set forth opposite such Bank's
name on Schedule I under the caption "Canadian Commitment", which
represents the maximum portion of such Bank's Commitment that may
be allocated as its Canadian Commitment. The Maximum Canadian
Commitment Amount of any Bank shall not exceed its Commitment.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Notice" means a Notice of Contract Borrowing, Notice
of Competitive Borrowing or Notice of Drawing.
"Notice of Contract Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Competitive Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Drawing" has the meaning specified in
paragraph (d)(i) of Annex I.
"Obligation" means all present and future indebtedness,
liabilities, and obligations, and all renewals and extensions
thereof, or any part thereof, now or hereafter owed to
Administrative Agent or any Bank by any Borrower arising from, by
virtue of or pursuant to any Loan Paper, together with all
interest accruing thereon, fees, costs and expenses payable under
the Loan Papers.
"OECD" means the Organization for Economic Cooperation
and Development, or any successor entity thereto.
"One-Month CDOR Rate" means, on any day, the annual
rate of interest which is the rate determined as being the
arithmetic average of the "BA 1 month" rates applicable to
Canadian Dollar bankers' acceptances displayed and identified as
such on the "Reuters' Screen CDOR Page" at approximately 10:00
a.m., Toronto time, on such day for banks listed on Schedule I to
the Bank Act (Canada), or if such day is not a Business Day then
on the immediately preceding Business Day (as adjusted by a
Canadian Bank after 10:00 a.m., Toronto time, to reflect any
error in a posted rate of interest or in the posted average
annual rate of interest).
"Original Closing Date" means October 27, 1998.
"Original Credit Agreement" has the meaning specified
in the Recitals to this Agreement.
"Participating Bank" has the meaning specified in
Section 2.03(a)(v).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Principal Property" has the meaning specified in the
Public Indenture.
"Public Indenture" means the Indenture, dated as of May
10, 1988, between the Guarantor and Continental Illinois National
Bank and Trust Company of Chicago (now known as Bank of America,
N.A.), as Trustee, as amended by the First Supplemental
Indenture, dated as of November 15, 1991, between the Guarantor
and Continental Bank N.A. (now known as Bank of America, N.A.)
and another First Supplemental Indenture dated as of April 15,
1999 between the Guarantor and Harris Trust and Savings Bank, as
successor Trustee.
"Restatement Date" means the date upon which the
conditions specified in Section 3.01 are first satisfied (or
waived in accordance with Section 8.01).
"Revaluation Date" means the last Business Day of each
March, June, September and December and such other Business Days
as the Company may request by prior notice to the Administrative
Agent.
"S&P" means Standard and Poor's Rating Group, a
division of The McGraw-Hill Company, Inc., a New York
corporation, or any successor thereto.
"Subsidiary" means, as to any Person, any corporation
or other similar entity of which more than 50% of the outstanding
capital stock having ordinary voting power to elect a majority of
the Board of Directors of such corporation or entity
(irrespective of whether or not at the time capital stock of any
other class or classes of such corporation or entity shall or
might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by
such Person and one or more other Subsidiaries of such Person, or
by one or more other Subsidiaries of the such Person.
"Termination Date" means the earlier of the Maturity
Date, or the date on which the Commitments shall terminate in
accordance with the terms of this Agreement.
"Transactions" means the execution, delivery and
performance by the Guarantor and each Borrower of the Loan Papers
to which it is or is to be a party, the borrowing of Advances and
the use of the proceeds thereof.
"Type", when used in respect of any Advance or
Borrowing, refers to the Rate by reference to which interest on
such Advance or on the Advances comprising such Borrowing is
determined. For purposes hereof, "Rate" shall include the
Eurodollar Rate, the US Alternate Base Rate, the Fixed Rate and,
in the case of a Canadian Advance, the Canadian Prime Rate, the
Canadian Alternate Base Rate, and, in the case of an Acceptance,
the Applicable BA Discount Rate.
"US Advance" means a US Contract Advance or a US
Competitive Advance, in either case, in US Dollars.
"US Alternate Base Rate" means, for any day, a rate per
annum equal to the lesser of (a) the Maximum Rate and (b) the
greatest of (i) the US Prime Rate in effect on such day, (ii) the
Base CD Rate in effect on such day plus 1% and (iii) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof, "US Prime Rate" means the rate of interest per
annum, publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New
York City (which prime rate may not necessarily represent the
lowest or best rate actually charged to a customer); each change
in the US Prime Rate shall be effective on the date such change
is publicly announced as effective. "Base CD Rate" means the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) 1.00 plus the Domestic Reserve Percentage and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" means, for any
day, the secondary market rate for three-month certificates of
deposit reported as being in effect on such day (or, if such day
shall not be a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average (rounded upwards,
if necessary, to the next 1/16 of 1%) of the secondary market
quotations for three-month certificates of deposit of major money
center banks received at approximately 10:00 a.m. (New York City
time) on such day (or, if such day shall not be a Business Day,
on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. "Federal Funds
Effective Rate" means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/16 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which
is a Business Day, the average (rounded upwards, if necessary, to
the next 1/16 of 1%) of the quotations for the day of such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal
Funds Effective Rate or both for any reason, including the
inability of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the US Alternate
Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the US Alternate Base Rate due to a change in the
Maximum Rate, US Prime Rate, the Three-Month Secondary CD Rate or
the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Maximum Rate, US Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"US Alternate Base Rate Advance" means a US Contract
Advance which bears interest computed at the US Alternate Base
Rate.
"US Borrowing" means a US Contract Borrowing or a US
Competitive Borrowing, in either case, in US Dollars.
"US Commitment" means, with respect to any Bank, its
Commitment reduced by the amount, if any, of its Canadian
Commitment at the time.
"US Competitive Advance" means an advance by a Bank to
the Company denominated in US Dollars as part of a Competitive
Borrowing resulting from the competitive bidding procedure
described in Section 2.03, and refers to a Fixed Rate Competitive
Advance or a Eurodollar Rate Competitive Advance.
"US Competitive Borrowing" means a Competitive
Borrowing consisting of US Competitive Advances.
"US Contract Advance" means an advance by a Bank
denominated in US Dollars to the Company as part of a Contract
Borrowing and refers to an Alternate Base Rate Advance or a
Eurodollar Rate Contract Advance.
"US Contract Borrowing" means a Contract Borrowing in
US Dollars consisting of US Contract Advances.
"US Dollar Equivalent" means, on any date of
determination, with respect to any amount in Canadian Dollars,
the equivalent in US Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.05.
"US Dollars" or "$" means lawful money of the United
States of America.
SECTION 1.02. Computation of Time Periods . In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms . All accounting terms
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles from time to time
in effect, and all accounting principles shall be applied on a
consistent basis so that the accounting principles in a current
period are comparable in all respects to those applied during the
preceding comparable period.
SECTION 1.04. Number and Gender of Words . Whenever
in any Loan Papers the singular number is used, the same shall
include the plural, where appropriate, and vice versa, and words
of any gender shall include each other gender, where appropriate.
SECTION 1.05. Exchange Rates and Assigned Dollar
Values . (a) On the date on which any Canadian Borrowing
denominated in Canadian Dollars is to be made, the Administrative
Agent shall determine the Exchange Rate as of such date for
purposes of determining the US Dollar Equivalent of the Canadian
Dollar amount of such Borrowing specified in the applicable
Notice. The initial Assigned Dollar Value of such Borrowing
shall be the US Dollar Equivalent so determined.
(b) On each Revaluation Date on which any Canadian
Borrowing denominated in Canadian Dollars is outstanding, the
Administrative Agent shall determine the US Dollar Equivalent of
each such outstanding Canadian Borrowing based on the applicable
Exchange Rate as of such Revaluation Date, and the Assigned
Dollar Value of each such Borrowing shall be adjusted to equal
the US Dollar Equivalent so determined. The Administrative Agent
shall notify the Banks and the Company of the Exchange Rate and
Assigned Dollar Values so determined and the resulting Canadian
Exposure.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitments . (a) Each Bank (other
than each Canadian Schedule II Bank) severally agrees, on the
terms and conditions hereinafter set forth, to make US Contract
Advances to the Company, in US Dollars, from time to time on any
Business Day during the period from the Original Closing Date
until the Termination Date in an aggregate amount not to exceed
at any time outstanding such Bank's US Commitment; provided,
however, that at no time shall the aggregate outstanding
principal amount of US Contract Advances and US Competitive
Advances exceed the aggregate amount of the US Commitments. Each
US Contract Borrowing shall be in an aggregate amount of not less
than $10,000,000 (subject to the terms of this Section 2.01(a))
or an integral multiple of $5,000,000 in excess thereof and shall
consist of US Contract Advances of the same Type made on the same
day by the Banks ratably according to their respective US
Commitments.
(b) Each Canadian Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Canadian Contract
Advances to any Canadian Borrower from time to time on any
Business Day during the period from the Original Closing Date
until the Termination Date in an aggregate amount (based on the
face amount thereof, in the case of Acceptances) the Assigned
Dollar Values of which shall not exceed at any time outstanding
such Bank's Canadian Commitment; provided, however, that at no
time shall the Canadian Exposure exceed the aggregate amount of
the Canadian Commitments. In the case of Canadian Contract
Advances consisting of Acceptances, such Advances shall be made
by the issuance by the applicable Canadian Borrower, and
acceptance by the applicable Canadian Banks, of Drafts
denominated in Canadian Dollars in the manner referred to in
Section 2.18. Each Canadian Contract Borrowing shall be in an
aggregate amount of not less than Canadian $10,000,000 (or, in
the case of Eurodollar Rate Contract Borrowings, $10,000,000)
(subject to the terms of this Section 2.01(b)) or an integral
multiple of Canadian $5,000,000 (or, in the case of Eurodollar
Rate Contract Borrowings, $5,000,000) in excess thereof and shall
consist of Canadian Contract Advances made to the same Canadian
Borrower on the same day by the Canadian Banks ratably
accordingly to their respective Canadian Commitments.
(c) Within the limits and on the conditions set forth
in this Section 2.01, each Borrower may from time to time borrow
under this Section 2.01, prepay under Section 2.07(c) and
reborrow under this Section 2.01.
SECTION 2.02. Making the Contract Advances . (a)
Each Contract Borrowing (other than Canadian Contract Borrowings
consisting of Acceptances, as to which this Section shall not
apply) shall be made on notice, given (i) in the case of a US
Borrowing consisting of US Alternate Base Rate Advances, not
later than 11:00 a.m. (New York City time) on the Business Day
prior to the date of the proposed Borrowing; (ii) in the case of
a US Borrowing consisting of Eurodollar Rate Contract Advances,
not later than 11:00 a.m. (New York City time) on the third
Business Day prior to the date of the proposed Contract
Borrowing; (iii) in the case of a Canadian Borrowing consisting
of Canadian Prime Rate Contract Advances, no later than 11:00
a.m. (Toronto time) on the first Business Day prior to the date
of the proposed Contract Borrowing; and (iv) in the case of a
Canadian Borrowing consisting of Eurodollar Rate Contract
Advances, not later than 11:00 a.m. (Toronto time) on the third
Business Day prior to the date of the proposed Contract Borrowing
by the Company to the Administrative Agent, which shall give to
each Bank or Canadian Bank, as applicable, prompt notice thereof
by cable or telecopy. Each such notice of a Contract Borrowing
(a "Notice of Contract Borrowing") shall be in substantially the
form of Exhibit A-1 hereto, specifying therein the requested (i)
date of such Contract Borrowing, (ii) Type and Class of Contract
Advances comprising such Contract Borrowing, (iii) aggregate
amount of such Contract Borrowing (expressed in US Dollars, in
the case of a US Borrowing, or Canadian Dollars, in the case of a
Canadian Borrowing), (iv) Interest Period and (v) in the case of
a Canadian Borrowing, the identity of the Canadian Borrower.
Each Bank or Canadian Bank, as applicable, shall, before 12:00
noon (New York City time) on the date of any such Contract
Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address
referred to in Section 8.02 (or, in the case of a Canadian
Borrowing, to an account in Toronto, Canada, designated by the
Administrative Agent for such purpose), in same day funds, such
Bank's or Canadian Bank's ratable portion of such Contract
Borrowing. Upon the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the applicable Borrower at the Administrative
Agent's aforesaid address (or, in the case of a Canadian
Borrowing, at such account as shall be mutually agreed by the
Administrative Agent and the applicable Borrower).
(b) Each Notice of Contract Borrowing shall be
irrevocable and binding on the applicable Borrower. In the case
of any Contract Borrowing which the related Notice of Contract
Borrowing specifies is to be comprised of Eurodollar Rate
Contract Advances, the applicable Borrower shall indemnify each
Bank against any loss, cost or expense incurred by such Bank as a
result of any failure by such Borrower to complete such Borrowing
(whether or not due to a failure to fulfill on or before the date
specified in such Notice of Contract Borrowing the applicable
conditions set forth in Article III), such losses, costs and
expenses to include, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the Contract Advance to be made by
such Bank as part of such Contract Borrowing when such Contract
Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Contract
Borrowing that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Contract
Borrowing, the Administrative Agent may assume that such Bank has
made such portion available to the Administrative Agent on the
date of such Contract Borrowing in accordance with Section
2.02(a) and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower on such
date a corresponding amount. If and to the extent that such Bank
shall not have so made such ratable portion available to the
Administrative Agent, such Bank and the applicable Borrower
severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount (in the same currency), together
with interest thereon, for each day from the date such amount is
made available to such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to Contract
Advances comprising such Contract Borrowing and (ii) in the case
of a Canadian Prime Rate Contract Advance by such Canadian Bank,
an interest rate equal to the Canadian Prime Rate plus 1.0%, and
(iii) in the case of any other Contact Advance by such Bank, an
interest rate equal at all times to the Federal Funds Effective
Rate. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Bank's Contract Advance as part of such Contract Borrowing for
purposes of this Agreement.
(d) The failure of any Bank to make the Contract
Advance to be made by it as part of any Contract Borrowing shall
not relieve any other Bank of its obligation, if any, hereunder
to make its Contract Advance on the date of such Contract
Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Contract Advance to be made by such
other Bank on the date of any Contract Borrowing.
SECTION 2.03. The Competitive Advances . (a) Each
Bank (other than each Canadian Schedule II Bank) severally agrees
that the Company may request US Competitive Borrowings under this
Section 2.03 from time to time on any Business Day during the
period from the Original Closing Date until the Termination Date,
in each case on the terms and conditions hereinafter set forth;
provided, however, that at no time shall the aggregate amount of
US Contract Advances and US Competitive Advances outstanding
exceed the aggregate amount of the US Commitments. Each US
Competitive Borrowing shall consist of US Competitive Advances of
the same Type made on the same day. Each Canadian Bank severally
agrees that any Canadian Borrower may request Canadian
Competitive Borrowings under this Section 2.03 from time to time
on any Business Day during the period from the Original Closing
Date until the Termination Date, in each case on the terms and
conditions hereinafter set forth; provided, however, that at no
time shall the total Assigned Dollar Values of the aggregate
amount of Canadian Contract Advances and Canadian Competitive
Advances outstanding exceed the aggregate amount of the Canadian
Commitments. Each Canadian Competitive Borrowing shall consist
of Canadian Competitive Advances of the same Type made to the
same Canadian Borrower on the same day.
(i) The Company may request a US Competitive Borrowing
and any Canadian Borrower may request a Canadian Competitive
Borrowing, under this Section 2.03 by delivering to the
Administrative Agent (A) in the case of a Borrowing
consisting of Fixed Rate Competitive Advances, by not later
than 10:00 a.m. (New York City time) on the Business Day
prior to the day of the proposed Competitive Borrowing, (B)
in the case of an Acceptance Borrowing, by not later than
11:00 a.m. (New York City time) on the second Business Day
prior to the day of the proposed Competitive Borrowing and
(C) in the case of a Borrowing consisting of Eurodollar Rate
Competitive Advances, by not later than 11:00 a.m. (New York
City time) on the fourth Business Day prior to the date of
the proposed Competitive Borrowing, a notice of a
Competitive Borrowing (a "Notice of Competitive Borrowing"),
in substantially the form of Exhibit A-2 hereto, specifying
the proposed (1) date of such Competitive Borrowing, (2)
Type and Class of Competitive Advances comprising such
Competitive Borrowing, (3) aggregate amount (which shall not
be less than $10,000,000 or an integral multiple of
$5,000,000 in excess thereof in respect of a US Competitive
Borrowing or a Eurodollar Rate Competitive Advance to a
Canadian Borrower, or Cdn$10,000,000 or an integral multiple
of Cdn$5,000,000 in respect of any Acceptance Borrowing) of
such Competitive Borrowing, (4) maturity date for repayment
of each Competitive Advance to be made as part of such
Competitive Borrowing (which maturity date shall be, in the
case of a Fixed Rate Competitive Borrowing, not earlier than
seven days after the date of such Borrowing, in the case of
an Acceptance Borrowing, not later than 30, 60 or 90 days
(or such other period as agreed to by the Canadian Sub-Agent
and the Canadian Banks) after the date of such Borrowing
and, in the case of a Eurodollar Rate Competitive Borrowing,
not later than 1, 2, 3 or 6 months after the date of such
Borrowing, as the Company shall elect and, in any case, on
or prior to the Termination Date) and (5) any other terms to
be applicable to such Competitive Borrowing and (6) in the
case of a Canadian Borrowing, the identity of the Canadian
Borrower. The Administrative Agent shall in turn promptly
deliver (by cable or telecopy) to each Bank or Canadian
Bank, as applicable, a notice of competitive bid request (a
"Notice of Competitive Bid Request"), in substantially the
form of Exhibit A-3, notifying the Banks or Canadian Banks,
as applicable, of each request for a Competitive Borrowing
received by it from the Company and of the terms contained
in such Notice of Competitive Borrowing.
(ii) Each Bank or Canadian Bank, as applicable, shall,
if, in its sole discretion, it elects to do so, irrevocably
offer to make one or more Competitive Advances to the
applicable Borrower as part of such proposed Competitive
Borrowing at a rate or rates of interest specified by such
Bank in its sole discretion, by notifying (by telecopy,
cable or telephone (in the case of telephone, immediately
confirmed by telecopy)) the Administrative Agent (which
shall give prompt notice thereof to the Company), (A) in the
case of a Fixed Rate Competitive Borrowing, not later than
9:30 a.m. (New York City time) on the date of such proposed
Competitive Borrowing specified in the Notice of Competitive
Borrowing delivered with respect thereto, (B) in the case of
an Acceptance Borrowing, not later than 9:30 a.m. (New York
City time) on the first Business Day prior to the date of
such proposed Competitive Borrowing specified in the Notice
of Competitive Borrowing delivered with respect thereto, and
(C) in the case of a Eurodollar Rate Competitive Borrowing,
not later than 9:30 a.m. (New York City time) on the third
Business Day prior to the date of such proposed Competitive
Borrowing specified in the Notice of Competitive Borrowing
delivered with respect thereto, of the maximum amount of
each Competitive Advance which such Bank would be willing to
make as part of such proposed Competitive Borrowing (which
amount may, subject to the provisos to the first and second
sentences of this Section 2.03(a), exceed such Bank's
Commitment of the applicable Class), the rate or rates of
interest therefor (and whether reserves are included
therein) and such Bank's Applicable Lending Office with
respect to each such Competitive Advance and any other
terms and conditions required by such Bank; provided that,
if the Administrative Agent in its capacity as a Bank shall,
in its sole discretion, elect to make any such offer, it
shall notify the Company of such offer no later than one
quarter of an hour before the time specified herein for
notice of offers by the other Banks. Each competitive bid
shall be submitted by a Bank to the Administrative Agent on
a competitive bid form (a "Competitive Bid"), substantially
similar to Exhibit A-4. If any Bank shall fail to notify
the Administrative Agent, before the time specified herein
for notice of offers, that it elects to make such an offer,
such Bank shall be deemed to have elected not to make such
an offer, and such Bank shall not be obligated or entitled
to, and shall not, make any Competitive Advance as part of
such Competitive Borrowing. If any Bank shall provide
telephonic notice to the Administrative Agent of its
election to make an offer, but such telephonic notice has
not been confirmed by telecopy to the Administrative Agent
at or before the time specified herein for notice of offers,
the Administrative Agent may, in its sole discretion and
without liability to such Bank or the applicable Borrower,
elect whether or not to provide notice thereof to the
Company.
(iii) The applicable Borrower shall, in turn, (A)
in the case of a Fixed Rate Competitive Borrowing, not later
than 10:30 a.m. (New York City time) on the date of such
proposed Competitive Borrowing specified in the Notice of
Competitive Borrowing delivered with respect thereto, (B) in
the case of an Acceptance Borrowing, not later than 10:30
a.m. (New York City time) on the first Business Day prior to
the date of such proposed Competitive Borrowing specified in
the Notice of Competitive Borrowing delivered with respect
thereto, and (C) in the case of a Eurodollar Rate
Competitive Borrowing, not later than 10:30 a.m. (New York
City time) on the third Business Day prior to the date of
such proposed Competitive Borrowing specified in the Notice
of Competitive Borrowing delivered with respect thereto,
either:
(A) cancel such proposed Competitive Borrowing by
giving the Administrative Agent notice to that effect,
or
(B) accept one or more of the offers made by any
Bank or Banks pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative
Agent of the amount of each Competitive Advance (which
amount shall be equal to or greater than $5,000,000 in
respect of a US Competitive Borrowing or a Eurodollar
Rate Competitive Advance to a Canadian Borrower, or
Cdn$5,000,000 in respect of any other Canadian
Competitive Borrowing, and equal to or less than the
maximum amount offered by such Bank, notified to the
Company by the Administrative Agent on behalf of such
Bank for such Competitive Advance pursuant to paragraph
(ii) above) to be made by each Bank as part of such
Competitive Borrowing, and reject any remaining offers
made by Banks pursuant to paragraph (ii) above, by
giving the Administrative Agent notice to that effect;
provided, however, that the aggregate amount of such
offers accepted by the Company shall be equal at least
to $10,000,000 or an integral multiple of $5,000,000 in
excess thereof in respect of a US Competitive Borrowing
or a Eurodollar Rate Competitive Advance to a Canadian
Borrower, or to Cdn$10,000,000 or an integral multiple
of Cdn$5,000,000 in excess thereof in respect of any
other Canadian Competitive Borrowing. Each such notice
of competitive bid acceptance/rejection (a "Competitive
Bid Accept/Reject Letter") from the Company shall be in
a form substantially similar to Exhibit A-5.
(iv) If any Borrower notifies the Administrative Agent
that such Competitive Borrowing is canceled pursuant to
paragraph (iii)(A) above, the Administrative Agent shall
give prompt notice (by cable or telecopy) thereof to the
Banks or Canadian Banks, as applicable, and such Competitive
Borrowing shall not be made.
(v) If any Borrower accepts one or more of the offers
made by any Bank or Banks pursuant to paragraph (iii)(B)
above, such offer or offers and the Notice of Competitive
Borrowing in respect thereof shall constitute a supplement
to this Agreement in respect of such Competitive Borrowing
and the Competitive Advances made pursuant thereto, and the
Administrative Agent shall in turn promptly notify (A) each
Bank that has made an offer as described in paragraph (ii)
above of the date and aggregate amount of such Competitive
Borrowing (expressed in US Dollars and, in the case of a
Canadian Borrowing, in Canadian Dollars based on the
Canadian Dollar Equivalent thereof), the interest rate
thereon, and whether or not any offer or offers made by such
Bank pursuant to paragraph (ii) above have been accepted by
the Company, and (B) each Bank that is to make a Competitive
Advance as part of such Competitive Borrowing (a
"Participating Bank" as to such Competitive Borrowing) of
the amount of each Competitive Advance to be made by such
Bank as part of such Competitive Borrowing and the maturity
date for the repayment of each such Competitive Advance
(together with a confirmation of the Administrative Agent's
understanding of the interest rate and any other terms
applicable to each such Competitive Advance; the
Administrative Agent shall assume, unless notified by such
Bank to the contrary, that its understanding of such
information is correct). Each such Participating Bank
shall, before 12:00 noon (New York City time) on the date of
such Competitive Borrowing specified in the notice received
from the Administrative Agent pursuant to clause (A) of the
preceding sentence, make available for the account of its
Applicable Lending Office to the Administrative Agent (at
its address referred to in Section 8.02 (or, in the case of
a Canadian Borrowing, to an account designated by the
Administrative Agent for such purpose)) such Bank's portion
of such Competitive Borrowing, in same day funds, which, in
the case of an Acceptance Borrowing, shall be made available
in Canadian Dollars in an amount equal to the Canadian
Equivalent of the US Dollar amount of the applicable
Participating Bank's portion of such Borrowing. Upon
fulfillment of the applicable conditions set forth in
Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds
available to the applicable Borrower at the Administrative
Agent's aforesaid address (or, in the case of a Canadian
Borrowing, at such account as shall be mutually agreed by
the Administrative Agent and the applicable Borrower).
Promptly after each Competitive Borrowing, the
Administrative Agent will notify each Bank of the amount of
the Competitive Borrowing (and, in the case of a Canadian
Borrowing, the Assigned Dollar Value thereof), such Bank's
Competitive Adjustment resulting therefrom, and the date
upon which such Competitive Adjustment commenced and is
anticipated to terminate.
(b) Within the limits and on the conditions set forth
in this Section 2.03, any Borrower may from time to time borrow
under this Section 2.03, repay pursuant to Section 2.07(b),
prepay under Section 2.07(c) and reborrow under this Section
2.03.
(c) In addition to Competitive Borrowings conducted by
the Administrative Agent pursuant to the procedures set forth in
Section 2.03(a), any Borrower may conduct competitive auctions
for Competitive Advances. In the event that any Borrower elects
to conduct competitive auctions, such Borrower shall, (i) give
notice of such auction to the Canadian Sub-Agent and the
Administrative Agent, (ii) conduct each auction among all Banks
or Canadian Banks, as applicable, and (iii) in the event that
such Borrower elects to accept one or more bids, accept the
lowest bid or bids. The applicable Borrower shall promptly
notify the Canadian Sub-Agent and the Administrative Agent of the
terms and conditions of the Advances made pursuant to competitive
auctions conducted by such Borrower.
SECTION 2.04. Conversion and Continuation of Contract
Borrowings . (a) The Borrowers shall have the right at any time
upon prior irrevocable notice to the Administrative Agent (i) not
later than 12:00 noon (New York City time), one Business Day
prior to conversion, to convert any Contract Borrowing consisting
of Eurodollar Rate Contract Advances into a Contract Borrowing
consisting of US Alternate Base Rate Advances (in the case of a
US Contract Borrowing) or Canadian Alternate Base Rate Advances
(in the case of a Canadian Contract Borrowing), (ii) not later
than 10:00 a.m. (New York City time), three Business Days prior
to conversion or continuation, to convert any US Contract
Borrowing consisting of US Alternate Base Rate Advances or any
Canadian Contract Borrowing consisting of Canadian Alternate Base
Rate Advances into a Contract Borrowing consisting of Eurodollar
Rate Contract Advances or to continue any Contract Borrowing
consisting of Eurodollar Rate Contract Advances for an additional
Interest Period, and (iii) not later than 10:00 a.m. (New York
City time), three Business Days prior to conversion, to convert
the Interest Period with respect to any Contract Borrowing
consisting of Eurodollar Rate Contract Advances to another
permissible Interest Period subject in each case to the
following:
(A) each conversion or continuation shall be made
pro rata among the Banks or Canadian Banks, as
applicable, in accordance with the respective principal
amounts of the Advances comprising the converted or
continued Contract Borrowing;
(B) if less than all the outstanding principal
amount of any Contract Borrowing shall be converted or
continued, the aggregate principal amount of such
Contract Borrowing converted or continued shall be in
an amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof (based on the initial
Assigned Dollar Value thereof, in the case of a
Canadian Borrowing);
(C) accrued interest on an Advance (or portion
thereof) being converted shall be paid by the
applicable Borrower at the time of conversion;
(D) if any Borrowing consisting of Eurodollar
Rate Contract Advances is converted at a time other
than at the end of the Interest Period applicable
thereto, the applicable Borrower shall pay, upon
demand, any amounts due to the Banks pursuant to
Section 8.04(b) as a result of such conversion;
(E) any portion of a Contract Borrowing maturing
or required to be repaid in less than one month may not
be converted into or continued as a Borrowing
consisting of Eurodollar Rate Contract Advances;
(F) any portion of a Borrowing consisting of
Eurodollar Rate Contract Advances which cannot be
converted into or continued as such by reason of
clause (E) above shall be automatically converted at
the end of the Interest Period in effect for such
Borrowing into a Borrowing consisting of US Alternate
Base Rate Advances in the case of a US Borrowing or of
Canadian Alternate Base Rate Advances in the case of a
Canadian Borrowing; and
(G) no Interest Period may be selected for any
Borrowing consisting of Eurodollar Rate Contract
Advances that would end later than the Maturity Date.
(b) Each notice pursuant to clause (a) of this Section
shall be irrevocable and shall refer to this Agreement and
specify (i) the identity and amount of the Contract Borrowing
that the Company requests be converted or continued, (ii) whether
such Contract Borrowing is to be converted to or continued as a
Borrowing consisting of Eurodollar Rate Contract Advances, US
Alternate Base Rate Advances or Canadian Alternate Base Rate
Advances, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day), and (iv) if such
Contract Borrowing is to be converted to or continued as a
Borrowing consisting of Eurodollar Rate Contract Advances, the
Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or
continuation as a Borrowing consisting of Eurodollar Rate
Contract Advances, the Company shall be deemed to have selected
an Interest Period of one month's duration. The Administrative
Agent shall advise the other Banks of any notice given pursuant
to this Section 2.04(b) and of each Bank's or Canadian Bank's, as
applicable, portion of any converted or continued Contract
Borrowing. If the Company shall not have given notice in
accordance with this Section 2.04(b) to continue any Contract
Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.04
to convert such Contract Borrowing), such Contract Borrowing
shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be
continued into a new Interest Period as a Borrowing consisting of
US Alternate Base Rate Advances in the case of a US Borrowing, or
of Canadian Alternate Base Rate Advances in the case of a
Canadian Borrowing. The conversion or continuation of any
Contract Borrowing as herein shall not affect the Class of the
applicable Borrowing or the identity of the Borrower thereof.
SECTION 2.05. Fees . (a) Facility Fees. The Company
shall pay to each Bank, through the Administrative Agent, a
facility fee (the "Facility Fee") on the average daily amount of
the Commitment of such Bank (whether used or unused) (or, after
such Bank's Commitment has terminated, on the outstanding
principal amount of Contract Advances made by such Bank, based on
the Assigned Dollar Value thereof in the case of Canadian
Contract Advances) for the period from and including the
Restatement Date up to, but excluding, the later of the Maturity
Date and the date of repayment of all outstanding Contract
Advances, at a rate per annum equal to the Applicable Margin for
Facility Fees. Accrued Facility Fees shall be payable in
arrears, commencing on the last day of the calendar quarter in
which the Restatement Date occurs, and thereafter, quarterly on
the last day of each March, June, September and December and on
the Maturity Date; provided that any Facility Fees accruing after
the Termination Date shall be payable contemporaneously with
accrued interest on the Contract Advances on which such Facility
Fees have accrued. Facility Fees shall be payable in US Dollars.
(b) Intentionally Omitted
(c) Acceptance Fee. Each Canadian Borrower agrees to
pay to each Canadian Bank a fee (the "Acceptance Fee") in
advance, at a rate per annum equal to the Applicable Margin, on
the date of issue of each Acceptance of such Canadian Bank
pursuant to a Canadian Borrowing. All Acceptance Fees shall be
calculated on the face amount of the Acceptance issued and
computed on the basis of the actual number of days in the term
thereof and a year of 365 days. Acceptance Fees shall be payable
in Canadian Dollars. The Acceptance Fee shall be in addition to
any other fees payable to each Canadian Bank in connection with
the issuance or discounting of such Acceptance.
SECTION 2.06. Reduction or Termination of the
Commitments . (a) Unless previously terminated, the Commitments
(including the US Commitments and Canadian Commitments) shall
terminate on the Termination Date.
(b) The Company shall have the right, upon at least
three Business Days' irrevocable notice to the Administrative
Agent, to terminate in whole or reduce ratably in part the
respective Commitments of the Banks (which reductions shall be
allocated, (i) in the case of Canadian Schedule I Banks, between
their US Commitments and Canadian Commitments and (ii) in the
case of Canadian Schedule II Banks, between the US Commitments of
their Designated Bank Affiliates and the Canadian Commitments of
the Canadian Schedule II Banks, in each case as specified in the
notice of such reduction); provided, however, that (A) each
partial reduction shall be in the aggregate amount of $10,000,000
or in an integral multiple of $5,000,000 in excess thereof, and
(B) no such termination or reduction shall be made which would
reduce the US Commitments to an amount less than the aggregate
outstanding principal amount of the US Advances or would reduce
the Canadian Commitments to an amount less than the Canadian
Exposure. The Administrative Agent shall promptly thereafter
notify each Bank of such termination or reduction.
SECTION 2.07. Repayment of Advances; Prepayment . (a)
On the Maturity Date each Borrower shall repay to the
Administrative Agent for the account of each Bank the principal
amount of each Contract Advance made to such Borrower by such
Bank.
(b) Each Borrower shall repay to the Administrative
Agent, for the account of each Participating Bank which has made
a Competitive Advance to such Borrower, on the maturity date of
each Competitive Advance (such maturity date being that specified
by the Company for repayment of such Competitive Advance in the
Notice of Competitive Borrowing delivered with respect thereto)
the then unpaid principal amount of such Competitive Advance.
(c) Any Borrower may, on notice given to the
Administrative Agent (i) in the case of US Alternate Base Rate
Advances, not later than 11:00 a.m. (New York City time) one
Business Day prior to the day of the proposed prepayment, (ii) in
the case of Canadian Alternate Base Rate Advances, not later than
11:00 a.m. (Toronto time) one Business Day prior to the day of
the proposed prepayment, (iii) in the case of Eurodollar Rate
Contract Advances, not later than 11:00 a.m. (New York City time)
on the third Business Day prior to the day of the proposed
prepayment and (iv) in the case of Canadian Prime Rate Contract
Advances, not later than 11:00 a.m. (Toronto time) one Business
Day prior to the day of the proposed prepayment, stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given, such Borrower shall, prepay the
outstanding principal amounts of the Contract Advances
constituting part of the same Contract Borrowing of such Borrower
in whole or ratably in part; provided, however, that any such
partial prepayment shall be in an aggregate principal amount not
less than $10,000,000 (or Canadian $10,000,000, in the case of
Canadian Prime Rate Contract Advances), or in an integral
multiple of $5,000,000 (or Canadian $5,000,000, in the case of
Canadian Prime Rate Contract Advances) in excess thereof. No
Borrower may prepay any principal amount of any Competitive
Advance unless the Participating Bank making such Competitive
Advance shall have expressly agreed thereto. Acceptances may not
be prepaid. The Administrative Agent shall promptly notify each
Bank of any prepayments pursuant to this Section 2.07(c) promptly
after any such prepayment. No Borrower shall have the right to
prepay any principal amount of any Advance except as expressly
set forth in this Section 2.07.
(d) On the date of any reduction or termination of the
Commitments, the Borrowers shall pay or prepay so much of the
Contract Advances (other than Acceptances) and the Canadian
Borrowers shall deposit with the Canadian Sub-Agent cash
collateral (in Canadian Dollars) to secure repayment of
Acceptances, in each case in such amounts as shall be necessary
in order that after giving effect to such reduction (i) the
aggregate principal amount of outstanding Advances (based on
Assigned Dollar Values, in the case of Canadian Advances), net of
such cash collateral, shall not exceed the Commitments, (ii) the
aggregate principal amount of outstanding US Advances shall not
exceed the US Commitments and (iii) the Canadian Exposure, net of
such cash collateral, shall not exceed the Canadian Commitments.
In the event that, after giving effect to the prepayment of
Contract Advances and deposit of cash collateral in respect of
Acceptances pursuant to this paragraph, there remain outstanding
Competitive Advances in a principal amount greater than the
amount permitted by the preceding sentence, the Borrowers shall
not be required to prepay such Competitive Advances unless Banks
holding such Competitive Advances request prepayment, in which
event the Borrowers shall prepay such Competitive Advances;
provided that the Borrowers shall not be required to so prepay
Competitive Advances after the outstanding principal amount of
Competitive Advances has been reduced by the amount required to
comply with this paragraph.
(e) If, after giving affect to any adjustment of
Assigned Dollar Values on any Revaluation Date, the Canadian
Exposure (net of cash collateral deposited with the Canadian Sub-
Agent to secure repayment of Acceptances as provided herein)
exceeds 110% of the total Canadian Commitments, the Canadian
Borrowers shall, within three Business Days thereafter, prepay
Canadian Prime Rate Contract Advances or Eurodollar Rate Contract
Advances or deposit cash collateral (in Canadian Dollars) with
the Canadian Sub-Agent to secure repayment of Acceptances in an
amount sufficient to eliminate such excess.
(f) Any prepayment of Eurodollar Rate Contract
Advances pursuant to any paragraph of this Section shall be
subject to the provisions of Section 8.04(b) hereof.
(g) Any cash collateral deposited with the Canadian
Sub-Agent pursuant to Section 2.07(d) hereof shall be released by
the Canadian Sub-Agent to the Canadian Borrowers within three
Business Days after the maturity and payment in full by the
applicable Canadian Borrower of Acceptances to the extent that
such payment in full causes the cash collateral to no longer be
required pursuant to Section 2.07(d). Any cash collateral
deposited with the Canadian Sub-Agent pursuant to Section 2.07(e)
hereof shall be released by the Canadian Sub-Agent to the
Canadian Borrowers within three Business Days after each
Revaluation Date to the extent that adjustments of the Assigned
Dollar Values cause the cash collateral to no longer be required
pursuant to Section 2.07(e).
SECTION 2.08. Interest . Each Borrower shall pay
interest on each Advance made by each Bank to such Borrower from
the date of such Advance until paid in full, at the following
rates per annum:
(a) Contract Advances. If such Advance is a Contract
Advance (other than an Acceptance), the Applicable Rate from time
to time for such Contract Advance from the date of such Advance
until the last day of the last Interest Period therefor, payable
on the last day of each Interest Period and, in the case of any
Interest Period longer than three months, on the last day of such
three-month period, as the case may be.
(b) Competitive Advances. If such Advance is a
Competitive Advance (other than an Acceptance), a rate per annum
equal at all times from the date of such Advance until the
maturity thereof to the rate of interest for such Competitive
Advance specified by the Participating Bank making such
Competitive Advance in its Competitive Bid with respect thereto
delivered pursuant to Section 2.03(a)(ii) above, payable on the
proposed maturity date specified by the Company for such
Competitive Advance in the related Notice of Competitive
Borrowing delivered pursuant to Section 2.03(a)(i) above;
provided that in the case of Advances with maturities of greater
than three months, interest shall be payable at the end of each
three-month period for such Advance.
(c) Default Amounts. In the case of any past-due
amounts of the principal of, or (to the fullest extent permitted
by law) interest on, any Advance, from the date such amount
becomes due until paid in full, payable on demand, a rate per
annum equal at all times to (i) 2% above the Eurodollar Rate in
the case of any outstanding Eurodollar Rate Advances until the
end of their respective Interest Periods, (ii) 2% above the US
Alternate Base Rate in the case of amounts payable with respect
to a US Advance other than a Eurodollar Rate Advance, or (iii) 2%
above the Canadian Prime Rate in the case of amounts payable with
respect to a Canadian Advance other than a Eurodollar Rate
Advance, in effect from time to time.
SECTION 2.09. Alternate Rate of Interest . If Banks
having more than 66-2/3% of the sum of the Commitments of the
applicable Class shall, at least one Business Day before the date
of any requested Eurodollar Rate Contract Borrowing (including
any requested conversion or continuation of any such Borrowing),
notify the Administrative Agent that the Eurodollar Rate for any
Eurodollar Rate Advances comprising such Borrowing will not
adequately reflect the cost to such Banks of making or funding
their respective Advances for such Borrowing, the right of the
Company to select Advances of such Type for such Borrowing or any
subsequent Borrowing shall be suspended until the Administrative
Agent shall notify the Company and the Banks that the
circumstances causing such suspension no longer exist, and (a)
any request by the Company for a Eurodollar Rate Competitive
Advance shall be of no force and effect and shall be denied by
the Administrative Agent and (b) any request by the Company for a
Eurodollar Rate Contract Advance as part of a US Contract Advance
shall be deemed to be a request for a US Alternate Base Rate
Advance or, if as part of a Canadian Contract Advance, shall be
deemed to be a request for a Canadian Alternate Base Rate
Advance.
SECTION 2.10. Increased Costs; Increased Capital .
(a) If due to either (i) the introduction of or any change after
the date hereof (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request
received from any central bank or other governmental authority
after the date hereof (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing
to make or making, funding, or maintaining Eurodollar Rate
Advances or Acceptances, then the applicable Borrower shall from
time to time, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Bank additional amounts sufficient
to compensate such Bank for such increased cost. Increased costs
shall not include income, stamp, or other taxes, imposts, duties,
charges, fees, deductions, or withholdings imposed, levied,
collected, withheld, or assessed by the United States of America
or Canada or any political subdivision or taxing authority
thereof or therein (including Puerto Rico) or of the country in
which any Bank's principal office or Applicable Lending Office
may be located or any political subdivision or taxing authority
thereof or therein. Each Bank agrees that, upon the occurrence
of any event giving rise to a demand under this Section 2.10(a)
with respect to the Eurodollar Lending Office of such Bank, it
will, if requested by the applicable Borrower and to the extent
permitted by law or the relevant governmental authority, endeavor
in good faith and consistent with its internal policies to avoid
or minimize the increase in costs resulting from such event by
endeavoring to change its Eurodollar Lending Office; provided,
however, that such avoidance or minimization can be made in such
a manner that such Bank, in its sole determination, suffers no
economic, legal, or regulatory disadvantage. A certificate as to
the amount of and specifying in reasonable detail the basis for
such increased cost, submitted to the Company and the
Administrative Agent by such Bank, shall constitute such demand
and shall, in the absence of manifest error, be conclusive and
binding for all purposes.
(b) If either (i) the introduction after the date
hereof of, or any change after the date hereof in or in the
interpretation of, any law or regulation or (ii) the compliance
by any Bank with any guideline or request received from any
central bank or other governmental authority after the date
hereof (whether or not having the force of law), affects or would
affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank
and such Bank determines that the amount of such capital is
increased by or based upon the existence of its Advances or
Commitment, then the applicable Borrower shall, from time to
time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), immediately pay to the Administrative
Agent for the account of such Bank additional amounts sufficient
to compensate such Bank to the extent that such Bank determined
such increase in capital to be allocable to the existence of such
Bank's Advances or Commitment. A certificate as to the amount of
such increased capital and specifying in reasonable detail the
basis therefor, submitted to the Company and the Administrative
Agent by such Bank, shall constitute such demand and shall, in
the absence of manifest error, be conclusive and binding for all
purposes. Each Bank shall use all reasonable efforts to mitigate
the effect upon the applicable Borrower of any such increased
capital requirement and shall assess any cost related to such
increased capital on a nondiscriminatory basis among the
applicable Borrower and other borrowers of such Bank to which it
applies and such Bank shall not be entitled to demand or be
compensated for any increased capital requirement unless it is,
as a result of such law, regulation, guideline, or request, such
Bank's policy generally to seek to exercise such rights, where
available, against other borrowers of such Bank.
(c) Notwithstanding the foregoing provisions of this
Section 2.10, (i) the applicable Borrower shall not be required
to reimburse any Bank for any increased costs incurred more than
three months prior to the date that such Bank notifies the
Company in writing thereof and (ii) in the event any Bank grants
a participation or assignment in an Advance pursuant to
Section 8.06, such Borrower shall not be obligated to reimburse
for increased costs with respect to such Advance to the extent
that the aggregate amount thereof exceeds the aggregate amount
for which such Borrower would have been obligated if such Bank
had not made such participation or assignment.
SECTION 2.11. Additional Interest on Eurodollar Rate
Advances . Each Borrower shall pay to the Administrative Agent
for the account of each Bank any costs which such Bank determines
are attributable to such Bank's compliance with regulations of
the Board (or of any other governmental authority having or
asserting lawful jurisdiction over any Canadian Bank) requiring
the maintenance of reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities. Such costs
shall be paid to the Administrative Agent for the account of such
Bank in the form of additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Bank to such
Borrower, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the applicable period for such Advance from
(ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Bank for such period, payable on each date on
which interest is payable on such Advance. Such additional
interest shall be determined by such Bank and notified to the
Company and the Administrative Agent. A certificate setting
forth the amount of such additional interest, submitted to the
Company and the Administrative Agent by such Bank, shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.12. Change in Legality . If any Bank (as
used in this paragraph, a "Notifying Bank") shall, at least three
Business Days before the date of any requested Borrowing
consisting of Eurodollar Rate Advances notify the Administrative
Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or
that any central bank or other governmental authority asserts
that it is unlawful, for such Notifying Bank or its Applicable
Lending Office to perform its obligations hereunder to make, fund
or maintain Eurodollar Rate Advances hereunder, the right of the
Company to select Advances of such Type from such Notifying Bank
for such Borrowing or any subsequent Borrowing shall be suspended
until such Notifying Bank shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist;
provided that during the period when such obligation of such
Notifying Bank is suspended, any Borrowing consisting of
Eurodollar Rate Advances shall not exceed the Commitments of the
applicable Class of the other Banks less the aggregate amount of
any Advances (including Competitive Advances) of the applicable
Class then outstanding, and shall be made by the other Banks pro
rata according to their respective Commitments of the applicable
Class.
SECTION 2.13. Payments and Computations . (a) Each
Borrower shall make each payment to be made by it hereunder from
a bank account of such Borrower located in the United States (in
the case of the Company) or Canada (in the case of a Canadian
Borrower) not later than 11:00 a.m. (New York City time) on the
day when due to the Administrative Agent at its address referred
to in Section 8.02 (or, in the case of payments by a Canadian
Borrower, to an account in Canada designated by the
Administrative Agent for such purpose) in same-day funds. The
Administrative Agent will promptly thereafter cause to be
distributed like funds to the Banks entitled thereto for the
account of their respective Applicable Lending Offices, in each
case to be applied in accordance with the terms of this
Agreement. All payments required to be made by any Borrower
hereunder (whether of principal, interest or otherwise) shall be
made (i) in the case of principal of or interest on any US
Advance, Eurodollar Rate Advance and Canadian Alternate Base Rate
Advance, in US Dollars, (ii) in the case of principal of or
interest on any other Canadian Advance, in Canadian Dollars,
(iii) in the case of fees, in US Dollars (or in the case of
Acceptance Fees, Canadian Dollars), (iv) in the case of payments
under Section 8.04(b) in respect of any Advance, in the currency
in which such Advance is denominated, (v) in the case of any
indemnification or expense reimbursement obligation, in US
Dollars or, if requested by a Canadian Bank with respect to any
such payment due to it, in Canadian Dollars, or (vi) in all other
cases, US Dollars.
(b) Subject to Section 8.19, all computations of
interest based on the US Alternate Base Rate or Canadian
Alternate Base Rate shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, when
determined by reference to the US Prime Rate or the US Base Rate,
respectively, and on the basis of a year of 360 days at all other
times; and all computations of fees and of interest based on the
Eurodollar Rate or the Fixed Rate shall be made by the
Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall be included in the computation of payment of interest
or fees, as the case may be; provided, however, that if such
extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any
payment is due to the Banks hereunder that the applicable
Borrower will not make such payment in full, the Administrative
Agent may assume that the applicable Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause
to be distributed to each Bank on such due date an amount equal
to the amount then due such Bank. If and to the extent the
applicable Borrower shall not have so made such payment in full
to the Administrative Agent, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from
the date such amount is distributed to such Bank until the date
such Bank repays such amount to the Administrative Agent, at the
Federal Funds Effective Rate (in the case of amounts payable in
US Dollars) or at the Canadian Prime Rate plus 1% (in the case of
amounts payable in Canadian Dollars).
(e) Each Bank shall maintain on its books a loan
account in the name of each Borrower in which shall be recorded
all Advances made by such Bank to such Borrower, the interest
rate, the currency and the maturity date of each such Advance and
all payments of principal and interest made by each Borrower with
respect to such Advances. The obligation of each Borrower to
repay the Advances made by each Bank and to pay interest thereon
shall be evidenced by the entries from time to time made in the
loan account of such Bank maintained pursuant to this
Section 2.13(e); provided that the failure to make an entry with
respect to an Advance shall not affect the obligations of any
Borrower hereunder with respect to such Advance. In case of any
dispute, action or proceeding relating to any Advance, the
entries in such loan account shall be prima facie evidence of the
amount of such Advance and of any amounts paid or payable with
respect thereto.
(f) The Administrative Agent shall maintain on its
books a set of accounts in which shall be recorded all Advances
made by the Banks to each Borrower, the interest rates, the
currencies and maturity dates of such Advances and all payments
of principal and interest made thereon. In case of any
discrepancy between the entries in the Administrative Agent's
books and the entries in any Bank's books, such Bank's records
shall be considered correct, in the absence of manifest error.
SECTION 2.14. Taxes on Payments . (a) All payments
made by each Borrower under this Agreement shall be made free and
clear of, and without reduction for or on account of, any income,
stamp, or other taxes, imposts, duties, charges, fees,
deductions, or withholdings, imposed, levied, collected,
withheld, or assessed by the United States of America or Canada
(or by any political subdivision or taxing authority thereof or
therein) as a result of (i) the introduction after the date
hereof of any law, regulation, treaty, directive, or guideline
(whether or not having the force of law), or (ii) any change
after the date hereof in any law, regulation, treaty, directive,
or guideline (whether or not having the force of law), or (iii)
any change after the date hereof in the interpretation or
application of any law, regulation, treaty, directive, or
guideline (whether or not having the force of law), or (iv) any
such taxes, imposts, duties, charges, fees, deductions, or
withholdings being imposed, levied, collected, withheld, or
assessed at a greater rate than the rate that would have been
applicable had such an introduction or change not been made, but
only to the extent of the increase in such rate ("Withholding
Taxes"). If any Withholding Taxes are required to be withheld
from any amounts payable to or for the account of any Bank
hereunder, the amounts so payable to or for the account of such
Bank shall be increased to the extent necessary to yield to such
Bank (after payment of all Withholding Taxes) interest or any
such other amounts payable hereunder at the rates or in the
amounts payable to or for the account of such Bank under this
Agreement prior to such introduction or change. Whenever any
Withholding Tax is payable by any Borrower, as promptly as
possible thereafter, such Borrower shall send to the
Administrative Agent, for the account of such Bank, a certified
copy of an original official receipt showing payment thereof. If
any Borrower fails to pay any Withholding Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of any Bank the required
receipts or other required documentary evidence, such Borrower
shall indemnify such Bank or the Administrative Agent for any
incremental taxes, interest, or penalties (including any
Withholding Taxes imposed or asserted on or attributable to
amounts payable under this Section) that may become payable by
such Bank or the Administrative Agent as a result of any such
failure.
(b) At least four Business Days prior to the first
Borrowing or, if the first Borrowing does not occur within thirty
days after the date of execution of this Agreement, by the end of
such thirty-day period, each Bank (other than a Canadian Bank)
that is organized outside the United States agrees that it will
deliver to the Company and the Administrative Agent two duly
completed copies of United States Internal Revenue Service Form
1001 (or such other documentation or information as may, under
applicable United States Federal income tax statutes or
regulations, be required in order to claim an exemption or
reduction from United States income tax withholding by reason of
an applicable treaty with the United States, including, after
December 31, 2000, Internal Revenue Service Form W-8BEN, such
documentation or other information being hereafter referred to as
"Form 1001") or Form 4224 or such other documentation or
information as may, under applicable United States Federal income
tax statutes or regulations, be required in order to claim an
exemption from United States income tax withholding for income
that is effectively connected with the conduct of a trade or
business within the United States, including, after
December 31, 2000, Internal Revenue Service Form W-8ECI, such
documentation or other information being hereafter referred to as
"Form 4224"), as the case may be, in the case of a Bank claiming
exemption from US Federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or
successors thereto, including, after December 31, 2000, Internal
Revenue Service Form W-8BEN (and, if such Bank delivers a Form W-
8, a certificate representing that such Bank is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent
shareholder of the Borrower (within the meaning of
Section 871(h)(3)(B) of the Code) and is not a controlled foreign
corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), indicating in each case that
such Bank is either entitled to receive payments under this
Agreement without deduction or withholding of any United States
Federal income taxes or, as the case may be, is subject to such
limited deduction or withholding. Each Bank which delivers to
the Company and the Administrative Agent such forms pursuant to
the next preceding sentence further undertakes to deliver to the
Company and the Administrative Agent two further copies of such
forms or successor applicable form or certificate, as the case
may be, as and when the previous form filed by it hereunder shall
expire or shall become incomplete or inaccurate in any respect,
unless in any of such cases an event has occurred prior to the
date on which any such delivery would otherwise be required which
renders such form inapplicable.
(c) If at any time any Bank by reason of payment by
any Borrower of any Withholding Taxes obtains a credit against,
or return or reduction of, any tax payable by it, or any other
currently realized tax benefit, which it would not have enjoyed
but for such payment ("Tax Benefit"), such Bank shall thereupon
pay to such Borrower the amount which such Bank shall certify to
be the amount that after payment, will leave such Bank in the
same economic position it would have been in had it received no
such Tax Benefit ("Equalization Amount"); provided, however, that
if such Bank shall subsequently determine that it has lost the
benefit of all or a portion of such Tax Benefit, such Borrower
shall promptly remit to such Bank the amount certified by such
Bank to be the amount necessary to restore such Bank to the
position it would have been in if no payment had been made
pursuant to this Section 2.14(c); provided further, however, that
if such Bank shall be prevented by applicable law from paying
such Borrower all or any portion of the Equalization Amount owing
to such Borrower such payment need not be made to the extent such
Bank is so prevented and the amount not paid shall be credited to
the extent lawful against future payment owing to such Bank;
provided further, however, that the aggregate of all Equalization
Amounts paid by any Bank to any Borrower shall in no event exceed
the aggregate of all amounts paid by such Borrower to such Bank
in respect of Withholding Taxes plus, in the case of a Tax
Benefit that occurs by reason of a refund interest actually
received from the relevant taxing authority with respect to such
refund. A certificate submitted in good faith by any Bank
pursuant to this Section 2.14(c) shall be deemed conclusive
absent manifest error.
(d) In the event a Bank shall become aware that any
Borrower is required to pay any additional amount to it pursuant
to Section 2.14(a), such Bank shall promptly notify the
Administrative Agent and the Company of such fact and shall use
reasonable efforts, consistent with legal and regulatory
restrictions, to change the jurisdiction of its Applicable
Lending Office if the making of such change (i) would avoid the
need for, or reduce the amount of, any such additional amounts
that may thereafter accrue, (ii) would not, in the good faith
determination of such Bank, be disadvantageous for regulatory or
competitive reasons to such Bank, and (iii) would not require
such Bank to incur any cost or forego any economic advantage for
which the applicable Borrower shall not have agreed to reimburse
and indemnify such Bank.
(e) Notwithstanding the foregoing provisions of this
Section 2.14, in the event any Bank grants a participation in any
Advance pursuant to Section 8.06, no Borrower shall be obligated
to pay any taxes, imposts, duties, charges, fees, deductions, or
withholdings to the extent that the aggregate amount thereof
exceeds the aggregate amount for which such Borrower would have
been obligated if such Bank had not granted such participation.
SECTION 2.15. Sharing of Payments, Etc. If any Bank
or Canadian Bank, as applicable, shall obtain any payment
(whether voluntary, involuntary, through the exercise of any
right of setoff or otherwise) on account of the Contract Advances
made, or Drafts accepted, by it (other than pursuant to Sections
2.10, 2.14, 2.16, 8.04, or 8.06 hereof) in excess of its ratable
share of payments on account of the Contract Advances or Drafts,
as applicable, obtained by all the Banks or Canadian Banks, as
applicable, then such Bank shall forthwith purchase from the
other Banks or Canadian Banks, as applicable, through the
Administrative Agent such participations in the Contract Advances
made, or Drafts accepted, by them as shall be necessary to cause
such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that, if all or any portion of
such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank or Canadian Bank, as
applicable, shall be rescinded, and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such
recovery, together with an amount equal to such Bank's ratable
share (according to the proportion that (i) the amount of such
Bank's required repayment bears to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. Each Borrower agrees that any Bank or
Canadian Bank, as applicable, so purchasing a participation from
another Bank or Canadian Bank, as applicable, pursuant to this
Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such
Bank were the direct creditor of such Borrower in the amount of
such participation. Nothing herein shall require any payment
which will result in any adverse withholding tax consequence to
any Borrower in any jurisdiction.
SECTION 2.16. Removal of a Bank . The Company shall
have the right, by giving at least 15 Business Days' prior notice
in writing to the affected Bank and the Administrative Agent, at
any time when no Event of Default and no event which with the
passage of time or the giving of notice or both would become an
Event of Default has occurred and is then continuing, to remove
as a party hereto any Bank having a credit rating of C/D (or its
equivalent) or lower by Thomson BankWatch, Inc. (or any successor
thereto), such removal to be effective as of the date specified
in such notice from the Company (a "Removal Date"), which date,
for any Eurodollar Rate Contract Advance, shall be the last day
of an Interest Period and, for any Competitive Advance or
Acceptance, shall be the maturity date of such Competitive
Advance or Acceptance; provided that no such Bank may be removed
if it does not have a Commitment at the time. On any Removal
Date, the Borrowers shall repay all the outstanding Advances of
the affected Bank applicable to such Removal Date, together with
all accrued interest, fees, and all other amounts owing hereunder
to such Bank. Upon each such Removal Date and receipt of the
related payment referred to above, the Commitment relating to the
Advances so paid on such Removal Date, together with all unused
Commitment, of such affected Bank shall terminate, and such Bank
shall cease thereafter to constitute a Bank hereunder. The
Company shall have the right to offer to one or more Banks the
right to increase their Commitments up to, in the aggregate for
all such increases, the Commitment of any Bank which is removed
pursuant to the foregoing provisions of this Section 2.16 (such
Commitment being herein called an "Unallocated Commitment")
effective on the relevant Removal Date, it being understood that
no Bank shall be obligated to increase its Commitment in response
to any such offer. The Company shall also have the right to
offer all or any portion of an Unallocated Commitment to one or
more Eligible Assignees not parties hereto having a credit rating
higher than C/D (or its equivalent) by Thomson BankWatch, Inc.
(or any successor thereto), and, upon each such bank's acceptance
of such offer and execution and delivery of an instrument
agreeing to the terms and conditions hereof (including, without
limitation, the provisions of Section 8.06 regarding Bank
assignments), each such bank shall become a Bank hereunder with a
Commitment in an amount specified in such instrument. The
obligations of the Borrowers described in Sections 2.10, 8.04,
and 8.15 shall survive for the benefit of any Bank removed
pursuant to this Sections 2.16, notwithstanding such removal.
SECTION 2.17. Canadian Borrowers; Canadian Commitments
. (a) The Company may at any time designate one or more of its
wholly-owned Subsidiaries organized under the laws of Canada or
any jurisdiction therein as a Canadian Borrower in accordance
with this Section. Any such designation shall be made by written
notice to the Administrative Agent signed on behalf of the
Company and the Canadian Borrower designated therein and shall
contain an undertaking, in form reasonably satisfactory to the
Administrative Agent, on behalf of such Canadian Borrower to be
bound by the provisions of this Agreement applicable to such
Canadian Borrower. The Company also may at any time terminate
the designation of any Canadian Borrower as a Borrower hereunder
by written notice to the Administrative Agent; provided, however,
that any such termination shall not be made at a time when any
Canadian Advances to such Canadian Borrower are outstanding and,
in any event, shall not affect such Canadian Borrower's liability
for any of its Obligations hereunder.
(b) The Company may on each March 31, June 30,
September 30 and December 31, by written notice to the
Administrative Agent given not less than ten Business Days prior
to the end of the applicable quarter, allocate or reallocate the
Commitments of Canadian Banks hereunder and, if applicable, the
Designated Bank Affiliates, between US Commitments and Canadian
Commitments of Canadian Schedule I Banks or Canadian Schedule II
Banks and their Designated Bank Affiliates, as the case may be;
provided, however, that (i) the sum of any US Commitment and
Canadian Commitment of any Canadian Schedule I Bank, or the sum
of the Canadian Commitment of any Canadian Schedule II Bank and
US Commitment of its Designated Bank Affiliate, shall not at any
time exceed its Commitment, (ii) the aggregate amount of the
Canadian Commitments shall not at any time exceed the Maximum
Canadian Allocation Amount and (iii) after giving effect to any
such allocation or reallocation (A) the Canadian Exposure shall
not exceed the Canadian Commitments, (B) the aggregate principal
amount of outstanding US Advances shall not exceed the US
Commitments, (C) the Assigned Dollar Value of the aggregate
principal amount of outstanding Canadian Contract Advances of any
Canadian Bank shall not exceed its Canadian Commitment and (D)
the aggregate principal amount of outstanding US Contract
Advances of any Canadian Schedule I Bank or of any Designated
Bank Affiliate shall not exceed its US Commitment. Allocations
and reallocations of Commitments of Canadian Schedule I Banks and
Canadian Schedule II Banks and their Designated Bank Affiliates
pursuant to this Section shall be made ratably among the Canadian
Banks in accordance with their respective Maximum Canadian
Commitment Amounts.
(c) The Administrative Agent shall notify the Banks of
any designation by the Company of a Canadian Borrower or
termination of such designation, or any allocation or
reallocation of Commitments of Canadian Banks, promptly following
receipt of notice thereof from the Company.
SECTION 2.18. Canadian Banker's Acceptances . All
Acceptances and Acceptance Borrowings shall be made as provided
in Annex I and the Canadian Banks and Canadian Borrowers hereby
agree to be bound by the terms of Annex I. Annex I is
incorporated herein by reference and forms a part of this
Agreement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Closing . The
amendment and restatement of the Original Credit Agreement shall
not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with
Section 8.01):
(a) The Administrative Agent (or its counsel) shall
have received from the Borrower, ACC, the Guarantor and Banks
constituting the Majority Banks either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received (i)
(A) a copy of the certificate of incorporation, including all
amendments thereto, of each of the Guarantor, the Company and
ACC, certified as of a recent date by the Secretary of State of
the state of its jurisdiction of organization, in the case of the
Guarantor and the Company, and the Registrar of Companies of the
Province of Alberta, in the case of ACC, and (B) a certificate as
to the good standings of each of the Guarantor and the Company as
of a recent date, from such Secretary of State and a certificate
as to the status of ACC as of a recent date, from such Registrar;
and (ii) a certificate of the Secretary or Assistant Secretary of
each of the Guarantor, the Company and ACC dated the Restatement
Date and certifying (A) that attached thereto is a true and
complete copy of the By-laws of the Guarantor, the Company and
ACC, as the case may be, as in effect on the Restatement Date and
at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the Board
of Directors or the Executive Board of Directors of the
Guarantor, the Company and ACC, as the case may be, authorizing
the execution, delivery, and performance of this Agreement, (C)
that the certificate of incorporation of each of the Guarantor,
the Company and ACC, as the case may be, has not been amended
since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i)
above and (D) as to the incumbency and specimen signature of each
officer executing this Agreement or any other document delivered
in connection herewith on behalf of the Guarantor, the Company
and ACC, as the case may be.
(c) The Administrative Agent shall have received a
favorable opinion of the General Counsel or General Attorney of
the Guarantor, to the effect that:
(i) the Guarantor is validly existing and in good
standing under the laws of the State of Delaware;
(ii) the Guarantor is qualified to do business as
a foreign corporation and is in good standing in the States
of Kansas, Louisiana, Oklahoma and Texas;
(iii) this Agreement has been duly authorized,
executed and delivered by the Guarantor;
(iv) the execution, delivery and performance by
the Guarantor of this Agreement will not conflict with the
restated certificate of incorporation or bylaws of the
Guarantor, each as in effect on the date of such opinion;
(v) the execution, delivery and performance of
this Agreement will not (x) contravene any applicable
provision of any applicable law or applicable order or
(y) violate 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 Guarantor or affecting its property;
(vi) no authorization, consent or approval of any
governmental body or agency of the State of Texas or the
United States of America which has not been obtained is
required in connection with the execution, delivery and
performance by the Guarantor of this Agreement; and
(vii) 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 Guarantor 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 Guarantor shall opine only as to the 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 or she
has relied on certificates of state officials as to qualification
to do business and good standing, certificates of officers of
each of the Guarantor and the Company and other sources believed
by him or her to be responsible.
(d) The Administrative Agent shall have received a
favorable opinion of Andrews & Kurth L.L.P., special New York
counsel to the Guarantor, to the effect that:
(i) this Agreement constitutes a valid and
binding agreement of the Guarantor, 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; and
(ii) 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 Guarantor of this Agreement.
(e) The Administrative Agent shall have received a
certificate of a responsible officer of each of the Guarantor and
the Company to the effect that:
(i) the representations and warranties contained
in Article IV are true and accurate on and as of such date
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 which
constitutes an Event of Default or would constitute an Event
of Default with the giving of notice or lapse of time, or
both; and
(iii) the Guarantor and the Company are in
compliance with all of the terms, covenants and conditions
of this Agreement which are binding upon it.
(f) The Administrative Agent for the benefit of the
Banks shall have received all interest, Facilities Fees and other
fees accrued and unpaid under the Original Credit Agreement to
(but excluding) the Restatement Date.
(g) The Administrative Agent shall have received all
fees and other amounts due and payable on or prior to the
Restatement Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Company hereunder.
Upon the effectiveness of this Agreement:
(a) the Original Credit Agreement (including all
Exhibits and Schedules thereto) shall be amended and restated to
read in its entirety as set forth herein; and
(b) as used in the Loan Papers, the term "Credit
Agreement" shall, unless the context otherwise requires, mean
this Agreement as amended and restated herein;
provided, however, that the execution, delivery and effectiveness
of this Agreement shall not affect the obligations accrued in
respect to any principal, interest, fees or other amounts under
the Original Credit Agreement.
The Administrative Agent shall promptly notify the
Guarantor and the Banks of the occurrence of the Restatement
Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the amendments to the Original
Credit Agreement that would be effected hereby shall not become
effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 8.01) at or prior to 3:00 p.m.,
New York City time, on October 31, 2000 (and, in the event such
conditions are not so satisfied or waived, the Original Credit
Agreement shall continue to remain in full force and effect
without giving effect to any amendments thereto contemplated
hereby).
SECTION 3.02. Conditions Precedent to Each Borrowing .
The obligation of each Bank to make an Advance in connection with
any Borrowing (including without limitation, any Borrowing on or
after the Restatement Date) shall be subject to the further
conditions precedent that on the date of such Borrowing,
(a) Administrative Agent shall have received a Notice
of Contract Borrowing or Notice of Competitive Borrowing (or, in
the case of a Canadian Borrowing comprised of Acceptances, a
Notice of Drawing), executed and completed by a Financial
Officer, and
(b) the following statements shall be true (and each
of the giving of the applicable Notice of Contract Borrowing or
Notice of Competitive Borrowing (or, in the case of a Canadian
Borrowing comprised of Acceptances, a Notice of Drawing) and the
acceptance by the applicable Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the
Company and Guarantor that on the date of such Borrowing such
statements are true):
(i) the representations and warranties contained
in Article IV are true and correct on and as of the date of
such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date (except to the extent
that such representations and warranties relate solely to an
earlier date); and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, which constitutes an Event of
Default.
SECTION 3.03. Conditions Precedent to Canadian
Borrowings . The obligation of each Canadian Bank to make a
Canadian Advance to any Canadian Borrower shall be subject to the
further conditions precedent that (a) such Canadian Borrower
shall have become a Canadian Borrower in accordance with Section
2.17 and shall not have ceased to be a Canadian Borrower and (b)
in the case of the initial Canadian Advance to any Canadian
Borrower, the Administrative Agent shall have received a
certificate of status of such Canadian Borrower, a certified copy
of authorizing resolutions of such Canadian Borrower, a
certificate of incumbency of such Canadian Borrower, the
constating document of such Canadian Borrower and such other
documents, certifications and opinions as the Administrative
Agent or its counsel may reasonably request relating to the
organization and existence of such Canadian Borrower, the
authorization of the Transactions to be entered into by it and
the validity and binding effect of this Agreement upon such
Canadian Borrower, all in form and substance satisfactory to the
Administrative Agent and its counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties by the
Company . The Company represents and warrants as follows:
(a) Each Borrower is a corporation duly organized,
validly existing and, in the case of the Company, in good
standing under the laws of the jurisdiction in which it is
organized.
(b) The Transactions are within each Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) such Borrower's
charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting any Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority,
regulatory body, or other Person is required for the due
execution, delivery and performance by the Company of this
Agreement or the consummation by any Borrower of the
Transactions, except such as have been duly obtained or made and
are in full force and effect.
(d) This Agreement is the legal, valid and binding
obligation of each Borrower enforceable against such Borrower in
accordance with its terms.
SECTION 4.02. Representations and Warranties by the
Guarantor . The Guarantor represents and warrants as follows:
(a) The Guarantor (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 Guarantor and its Subsidiaries taken as
a whole.
(b) This Agreement has been duly authorized, executed
and delivered by the Guarantor and constitutes a valid and
binding agreement of the Guarantor, 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.
(c) The execution, delivery and performance of this
Agreement will not conflict with any provision of (i) the
restated certificate of incorporation or bylaws of the Guarantor
or (ii) any indenture, loan agreement or other similar agreement
or instrument binding on the Guarantor.
(d) 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 Guarantor.
(e) To the knowledge of the Guarantor, there is no
proceeding pending or threatened before any court or
administrative agency which, in the opinion of the Guarantor,
will result in a final determination which would have the effect
of preventing the Guarantor from carrying on its business or from
meeting its current and anticipated obligations on a timely
basis.
(f) The consolidated balance sheets of the Guarantor
and its Subsidiaries as of December 31, 1998 and 1999, 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, 1999, certified by KPMG LLP, present fairly
the consolidated financial position of the Guarantor and its
Subsidiaries at December 31, 1998 and 1999 and the results of
their operations and their cash flows for each of the years in
the three-year period ended December 31, 1999, in conformity with
generally accepted accounting principles applied on a consistent
basis. The consolidated balance sheet of the Guarantor and its
Subsidiaries as of June 30, 2000, and the related consolidated
statements of income, stockholders' equity and cash flows for the
fiscal quarter then ended, fairly present the financial condition
of the Guarantor and its Subsidiaries as at such date and for the
period then ended, in conformity with generally accepted
accounting principles applied on a consistent basis (subject to
year end audit adjustments). Since June 30, 2000, there has been
no material adverse change in the consolidated financial position
or results of operations of the Guarantor and its Subsidiaries
which would have the effect of preventing the Guarantor from
carrying on its business or from meeting its current and
anticipated obligations on a timely basis.
ARTICLE V
COVENANTS
So long as any Advance shall remain unpaid or any Bank
shall have any Commitment hereunder, the Guarantor will, unless
the Majority Banks shall otherwise consent in writing:
(a) Reporting Requirements. The Guarantor will
furnish to each Bank: (i) within 15 days after the Guarantor 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 Guarantor 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 Guarantor 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 Guarantor's
fiscal years a statement by a responsible officer of the
Guarantor stating whether to the knowledge of the Guarantor 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 Guarantor's fiscal years
a statement by a responsible officer of the Guarantor stating
whether to the knowledge of the Guarantor 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 Guarantor 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 Guarantor stating the facts with respect thereto;
and (v) such other information respecting the financial condition
or operations of the Guarantor and its Subsidiaries as any Bank
may from time to time reasonably request.
(b) Limitations on Sales and Leasebacks. The
Guarantor will not itself, and will not permit any of its
Subsidiaries to, enter into any arrangement with any bank,
insurance company or other lender or investor (not including the
Guarantor or any Subsidiary) or to which any such lender or
investor is a party, providing for the leasing by the Guarantor
or any of its Subsidiaries for a period, including renewals, in
excess of three years, of any Principal Property 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 Guarantor or any of its Subsidiaries 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 Guarantor 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 Advances; or
(ii) the Guarantor within 180 days after the sale
or transfer shall have been made by the Guarantor or by one
of its Subsidiaries, 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 Guarantor or such Subsidiary at the time of entering
into such arrangement, to the retirement of Indebtedness of
the Guarantor.
(c) Compliance with Indenture. The Guarantor will
comply with the provisions of Sections 1004 and 1005 of the
Public Indenture (a true and complete copy of which the Guarantor
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 Article V
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
Article V, (a) references in the Public Indenture to "the
Securities" shall be deemed to refer to the obligations of the
Guarantor to pay the Guarantied Obligations, (b) references in
the Public Indenture to "the Trustee" shall be deemed to refer to
the Administrative 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.
(d) Limitation on Mortgages. The Guarantor will not,
and will not permit any of its Subsidiaries to, 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).
(e) Consolidated Stockholders' Equity. The Guarantor
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.
(f) Indebtedness to Capitalization Ratio. At the end
of each calendar quarter, Consolidated Indebtedness divided by
Total Capital shall not exceed 60%. For purposes of this
provision "Total Capital" is equal to the sum of Consolidated
Stockholders' Equity, exclusive of the effect of any noncash
writedowns made subsequent to the date hereof, plus Consolidated
Indebtedness, each at such time.
(g) Insurance. The Guarantor will, and will cause the
Company and ACC to, 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.
(h) Use of Proceeds. The Guarantor will cause the
Borrowers to use, the proceeds of Advances for general corporate
purposes and to repurchase or refinance, from time to time,
commercial paper issued by any of the Borrowers, and such
proceeds 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 Guarantor.
ARTICLE VI
EVENTS OF DEFAULT
If any of the following events ("Events of Default")
shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable and such
default shall continue for a period of three Business Days; or
(b) any Borrower shall fail to pay any interest on any
Advance or any fee payable hereunder or under any agreement
executed in connection herewith when the same becomes due and
payable and such failure shall remain unremedied for ten days; or
(c) any representation or warranty made by the Company
or the Guarantor herein or by any Borrower (or any of its
officers) in connection with this Agreement (including, without
limitation, any representation or warranty deemed made by the
Company or the Guarantor at the time of any Advance pursuant to
Article III) shall prove to have been incorrect in any material
respect when made or deemed made; or
(d) the Company or the Guarantor shall fail to perform
or observe any other term, covenant, or agreement contained in
this Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice
thereof shall have been given to the Company and the Guarantor by
the Administrative Agent or any Bank; or
(e) the Guarantor 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
Advances) 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 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 Administrative
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; or
(f) (i) the Guarantor or any Borrower shall commence
any case, proceeding, or other action, or make any filing (A)
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, or
relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition, or other
relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, or other similar
official for it or for all or any substantial part of its assets,
or the Guarantor or any Borrower shall make a general assignment
for the benefit of its creditors; or
(ii) there shall be commenced against the
Guarantor or any Borrower any case, proceeding or other
action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged, or unbonded for a period of 60 days; or
(iii) there shall be commenced against the
Guarantor or any Borrower any case, proceeding, or other
action seeking issuance of a warrant of attachment,
execution, distraint, or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or
(iv) the Guarantor or any Borrower shall take any
action in furtherance of or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or
(v) the Guarantor or any Borrower shall generally
not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due;
(g) any "Event of Default" described in the Public
Indenture shall occur; or
(h) a Change of Control shall occur;
then, and in any such event, the Administrative Agent
(i) shall at the request, or may with the
consent, of the Majority Banks, by notice to the Guarantor
and the Company, declare the obligation of each Bank to make
Advances to be terminated, whereupon the same shall
forthwith terminate;
(ii) shall at the request, or may with the
consent, of Banks owed at least 51% of the then aggregate
unpaid principal amount of the Advances owing to Banks
(based on the Assigned Dollar Values, in the case of
Canadian Advances denominated in Canadian Dollars), by
notice to the Guarantor and the Company, declare the
Advances, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such
amounts shall become and be forthwith due and payable,
without presentment, demand, protest, notice of intention to
accelerate, notice of acceleration, or further notice of any
kind, all of which are hereby expressly waived by the
Borrowers;
(iii) shall at the request, or may with the
consent, of Banks owed at least 51% of the then aggregate
unpaid principal amount of the Advances owing to Banks
(based on the Assigned Dollar Values, in the case of
Canadian Advances denominated in Canadian Dollars), require
the Borrowers to deposit with the Canadian Sub-Agent cash
collateral, in Canadian Dollars in an amount equal to the
aggregate unmatured Acceptances then outstanding, to be held
by the Canadian Sub-Agent as security for the repayment of
such outstanding Acceptances, and the Borrowers hereby agree
to make such deposits; and
(iv) shall at the request, or may with the
consent, of the Majority Banks, exercise any and all other
legal and equitable rights afforded by the Loan Papers,
applicable law, or in equity, including, but not limited to,
the right to bring suit or other proceedings for specific
performance or otherwise in aid of any right granted to
Administrative Agent or any Bank hereunder; provided,
however, that in the event of an actual or deemed entry of
an order for relief with respect to the Company or any of
its Subsidiaries or the Guarantor under the Federal
Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada)
or the Companies' Creditors Arrangement Act (Canada), (A)
the obligation of each Bank to make Advances shall
automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest, or
any notice of any kind, all of which are hereby expressly
waived by the Guarantor and the Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action . Each Bank
hereby appoints and authorizes the Administrative Agent to take
such action as administrative agent on its behalf and to exercise
such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters
not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the amounts due
hereunder), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Banks, and such instructions shall be binding upon all
Banks and all holders of Advances; provided, however, that the
Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or
which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Bank prompt notice of
each notice given to it by the Company pursuant to the terms of
this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents, or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or wilful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent:
(a) may consult with legal counsel (including counsel
for the Company or the Guarantor), independent public
accountants, and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants
or experts;
(ii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements,
warranties, or representations made in or in connection with this
Agreement;
(c) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of any
Borrower or to inspect the property (including the books and
records) of any Borrower;
(d) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and
(e) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopy, telegram
or cable) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Administrative Agent and Affiliates .
With respect to its Commitment, The Chase Manhattan Bank shall
have the same rights and powers under this Agreement as any other
Bank, and may exercise the same as though it were not the
Administrative Agent and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include The Chase Manhattan Bank
in its individual capacity. The Chase Manhattan Bank and its
affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of
business with, the Guarantor, any of its Subsidiaries and any
Person who may do business with or own securities of the
Guarantor or any such Subsidiary, all as if The Chase Manhattan
Bank were not the Administrative Agent and without any duty to
account therefor to the Banks.
SECTION 7.04. Bank Credit Decision . Each Bank
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Bank and based on the
financial statements referred to in Article IV and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and
without reliance upon the Administrative 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 credit
decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification . The Banks agree to
indemnify the Administrative Agent, acting in its agency
capacity, (to the extent not reimbursed by the Borrowers),
ratably as computed as set forth below from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Administrative Agent in any way
relating to, or arising out of, this Agreement or any action
taken or omitted by the Administrative Agent under this
Agreement; provided that no Bank shall be liable to the
Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or wilful misconduct.
Without limitation of the foregoing, each Bank agrees to
reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings, or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent
that the Administrative Agent is not reimbursed for such expenses
by the Borrowers. For purposes of this Section 7.05, ratable
allocations among the Banks shall be made (i) in respect of any
demand by the Administrative Agent prior to termination of the
Commitments, according to the respective amounts of their
Commitments and (iii) thereafter according to the respective
principal amounts of the Advances then outstanding to them.
SECTION 7.06. Successor Administrative Agent . The
Administrative Agent may resign at any time by giving written
notice thereof to the Banks, the Guarantor and the Company and
may be removed at any time with or without cause by the Majority
Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent
with the consent of the Guarantor and the Company (which consent
shall not be required if at the time of such appointment any
Event of Default or an event which with the passage of time or
the giving of notice or both would become an Event of Default has
occurred and is continuing). If no successor Administrative
Agent shall have been so appointed by the Majority Banks, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation
or the Majority Banks' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent, which shall
be a commercial bank organized or licensed under the laws of the
United States of America or of any state thereof and having a
combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 7.07. Canadian Sub-Agent . The Administrative
Agent may appoint a sub-agent to perform the duties and
responsibilities of the Administrative Agent with respect to
Canadian Advances. Any such sub-agent so appointed shall be
entitled to all of the benefits and immunities of the
Administrative Agent under this Agreement, including those
granted under this Article VII, in its capacity as such. The
Administrative Agent hereby appoints The Chase Manhattan Bank of
Canada as the initial sub-agent of the Administrative Agent
pursuant to this Section.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc . No amendment or
waiver of any provision of this Agreement nor consent to any
departure by the Guarantor or any Borrower 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
specific purpose for which given; provided, however, that no
amendment, waiver, or consent shall, unless in writing and signed
by all the Banks, do any of the following: (a) waive any of the
conditions specified in Section 3.01 or 3.02 (if and to the
extent that the Borrowing which is the subject of such waiver
would involve an increase in the aggregate outstanding amount of
Advances over the aggregate amount of Advances outstanding
immediately prior to such Borrowing), (b) increase, or extend the
scheduled termination of, the Commitments of the Banks or subject
the Banks to any additional obligations, (c) reduce the principal
of, or interest on, or change the currency of payment of, the
Advances or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable
hereunder, (e) make any change which would alter the percentage
of the Commitment, or of the aggregate unpaid principal amount of
the Advances, or the number of Banks, which shall otherwise be
required for the Banks or any of them to take any action
hereunder, (f) release the Anadarko Guaranty, or (g) amend this
Section 8.01, and; provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative
Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Administrative Agent
under this Agreement.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopy, telegraphic or cable communication) and
telecopied, mailed, telegraphed, cabled or delivered, if to the
Company, at its address at P.O. Box 7, 801 Cherry Street, Fort
Worth, Texas 76101; if to any Canadian Borrower, to it in care of
the Company; if to the Guarantor, to it at 1200 Timberloch Place,
The Woodlands, Texas 77380, Attention: Treasurer; if to any Bank
listed on Schedule I hereto, at its Notice Address specified
opposite its name on Schedule I hereto; if to any other Bank, at
its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Bank; if to the
Administrative Agent, to The Chase Manhattan Bank, Loan and
Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New
York, New York 10081, Attention: Muniram Appanna (Telecopy No.
(212) 552-5777) and (in the case of Competitive Advances) Chris
Consomer (Telecopy No. (212) 552-5627) and, in all cases, to The
Chase Manhattan Bank, P.O. Box 660197, Dallas, Texas 75266-0197,
Attention: Alana Rahn (Telecopy No. (214) 270-3897); if to the
Canadian Sub-Agent (in the case of notices relating to Canadian
Advances), to The Chase Manhattan Bank of Canada, 100 King Street
West, Suite 6900, Toronto, Ontario, Canada M5X1A4, Attention:
Funding Officer (Telecopy No. (416) 216-4162); or, as to the
Company, the Guarantor, any Bank or the Administrative Agent, at
such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a
written notice to the Guarantor, the Company and the
Administrative Agent. All such notices and communications shall,
when telecopied, mailed, telegraphed, or cabled, be effective
when sent by telecopy, deposited in the mails, delivered to the
telegraph company, or delivered to the cable company,
respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or VII shall not be
effective until received by the Administrative Agent. The
Administrative Agent shall be entitled to rely on any oral notice
made pursuant to Section 2.03(a)(v) believed by it to be genuine
and made by the proper party or parties, and the Borrowers and
the Banks, as the case may be, agree to be conclusively bound by
the Administrative Agent's records in respect of any such notice.
SECTION 8.03. No Waiver; Remedies . No failure on the
part of any Bank or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes . (a) The
Company agrees to pay on demand all costs and expenses of the
Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, and amendment
of this Agreement, the Loan Papers, and the other documents to be
delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and
responsibilities under this Agreement, and all costs and
expenses, if any, (including, without limitation, reasonable
counsel fees and expenses), incurred by the Administrative Agent
or any Bank in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement
and the other documents to be delivered hereunder. In addition,
the Company agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from the execution and delivery of
this Agreement and agrees to save the Administrative Agent and
each Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to
pay such taxes.
(b) If any payment of principal of any Eurodollar Rate
Contract Advance, or Competitive Advance is made by any Borrower
to or for the account of a Bank, other than on the last day of
the Interest Period for such Contract Advance, or on the maturity
date of such Competitive Advance, as the case may be, or as a
result of a payment pursuant to Section 2.07, or as a result of
acceleration of the maturity of the Advances pursuant to Article
VI, or for any other reason, or by an Eligible Assignee to a
Bank, other than on the last day of the Interest Period (or the
final maturity date in the case of a Competitive Advance) for
such Advance upon an assignment of rights and obligations under
this Agreement pursuant to Section 8.06 as a result of the
exercise by the Company of its rights pursuant to Section 8.07,
or an assignment of rights and obligations under this Agreement
pursuant to Section 2.16 as a result of a demand by the Company,
or if the Company fails to convert or continue any Contract
Advance hereunder after irrevocable notice of such conversion or
continuation has been given pursuant to Section 2.04, the
Borrower in respect of such Advance shall, upon demand by such
Bank (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Bank any
amounts required to compensate such Bank for any additional
losses, costs or expenses which it may reasonably incur as a
result of such payment or failure, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Bank to fund or maintain such
Advance. A certificate of such Bank setting forth the amount
demanded hereunder and the basis therefor shall, in the absence
of manifest error, be conclusive and binding for all purposes.
SECTION 8.05. Intentionally Omitted.
SECTION 8.06. Binding Effect and Assignment . This
Agreement shall be binding upon and inure to the benefit of the
Company and the Guarantor, the Canadian Borrowers and the Banks
and their respective successors and assigns, except that none of
the Company, the Guarantor nor any Canadian Borrower may 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 Guarantor, provided,
however, that each Bank may at any time grant participations in
its Loans and its Commitments ("Participations") to other Persons
(such Persons being herein called "Participants"). The Company
and the Guarantor agree that each Participant shall be deemed to
be a "Bank" for purposes of Sections 2.10, 2.14 and 8.04(b) with
respect to its Participations outstanding from time to time.
Each Bank agrees with the Company and the Guarantor 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
or the Guarantor. The creation of a Participation shall not give
any Participant any rights under this Agreement 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 Administrative Agent by the parties to such
assignment.
SECTION 8.07. Termination and Substitution of Bank.
(a) If the obligation of any Bank to make, convert Loans into or
continue Eurodollar Loans has been suspended pursuant to Section
2.12, (ii) any Bank has demanded compensation under Section 2.10
or 2.14, the Company may, upon three Business Days' notice to
such Bank through the Administrative Agent, prepay in full all of
the outstanding Advances 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 Administrative Agent and such Bank.
(b) If any Bank becomes a Defaulting Bank, the Company
may, in its sole discretion and without prejudice to any right or
remedy that the Company or the Guarantor 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
Administrative 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 8.04(b) shall not apply to any such
prepayment.
(c) If the Company terminates this Agreement with
respect to any Bank under this Section 8.07, the Company shall
use its best efforts, with the assistance of the Administrative
Agent, to seek an Eligible Assignee to assume the Commitment of
such relevant Bank.
(d) Notwithstanding the foregoing, the Administrative
Agent, the Canadian Sub-Agent, the Banks and the Borrowers
acknowledge that The Toronto-Dominion Bank has granted or may
grant an unfunded participation in respect of a portion of its
Canadian Commitment in favor of The Chase Manhattan Bank and that
so long as such participation remains in effect, The Chase
Manhattan Bank shall be treated as a Bank for purposes of (and
solely for purposes of) voting on all matters requiring the
approval of the Banks or the Majority Banks, as the case may be,
under this Agreement and the other Loan Papers, and shall be
entitled to receive any information that a Bank is entitled to
receive under this Agreement.
SECTION 8.08. GOVERNING LAW . THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 8.09. Exceptions to Covenants . Neither the
Guarantor or the Company may take or fail to take any action that
is permitted as an exception to any of the covenants contained in
any Loan Paper if that action or omission would result in the
breach of any other covenant contained in any Loan Paper.
SECTION 8.10. Survival . All covenants, agreements,
undertakings, representations and warranties made in any of the
Loan Papers survive all closings under the Loan Papers until
payment in full of the Obligation and termination of this
Agreement, except that Sections 2.10, 2.11, 2.14, 7.05, 8.04 and
8.15 (together with any other provisions in the Loan Papers which
expressly provides that it shall survive termination of this
Agreement) shall survive termination of this Agreement; and such
covenants, agreements, undertakings, representations and
warranties, except as otherwise indicated, are not affected by
any investigation made by any party.
SECTION 8.11. Invalid Provisions . Any provision in
any Loan Paper held to be illegal, invalid, or unenforceable is
fully severable; the appropriate Loan Paper shall be construed
and enforced as if that provision had never been included; and
the remaining provisions shall remain in full force and effect
and shall not be affected by the severed provision.
Administrative Agent, Banks and the Borrower or Borrowers party
to the affected Loan Paper agree to negotiate in good faith the
terms of a replacement provision as similar to the severed
provision as may be possible and be legal, valid and enforceable.
SECTION 8.12. Maximum Rate . Regardless of any
provision contained in any Loan Paper, no Bank shall ever be
entitled to contract for, charge, take, reserve, receive or apply
as interest on the Obligation, or any part thereof, any amount in
excess of the Maximum Rate, and, if Banks ever do so, then any
excess shall be deemed a partial prepayment of principal and
treated hereunder as such and any remaining excess shall be
refunded to the applicable Borrower or Borrowers. In determining
if the interest paid or payable exceeds the Maximum Rate, the
Borrowers and Banks shall, to the maximum extent permitted under
applicable law, (a) treat all Borrowings as but a single
extension of credit (and Banks and the Borrowers agree that such
is the case and that provision herein for multiple Borrowings is
for convenience only), (b) characterize any nonprincipal payment
as an expense, fee, or premium rather than as interest, (c)
exclude voluntary prepayments and the effects thereof, and (d)
amortize, prorate, allocate, and spread the total amount of
interest throughout the entire contemplated term of the
Obligation; provided that if the Obligation is paid and performed
in full prior to the end of the full contemplated term thereof,
and if the interest received for its actual period of existence
thereof exceeds the Maximum Amount, Banks shall refund any excess
(and Banks shall not, to the extent permitted by law, be subject
to any penalties provided by any laws for contracting for,
charging, taking, reserving, or receiving interest in excess of
the Maximum Amount).
SECTION 8.13. Execution in Counterparts . This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 8.14. Not in Control . Nothing in any Loan
Paper gives or may be deemed to give to Administrative Agent or
any Bank the right to exercise control over the Guarantor, the
Company or any of their respective Subsidiaries' property, other
assets, affairs or management or to preclude or interfere with
the Guarantor, the Company or any of their respective
Subsidiaries' compliance with any law or require any act or
omission by the Guarantor, the Company or any such Subsidiary
that may be harmful to Persons or property. Any materiality or
substantiality qualifier of any representation, warranty,
covenant, agreement or other provision of any Loan Paper is
included for credit documentation purposes only and does not
imply, and shall not be deemed to mean, that Administrative Agent
or any Bank acquiesces in any noncompliance by the Guarantor, the
Company or any of their respective Subsidiaries with any law,
document, or otherwise or does not expect the Guarantor, the
Company or any of their respective Subsidiaries to promptly,
diligently and continuously carry out all appropriate removal,
remediation, compliance, closure or other activities required or
appropriate in accordance with all Environmental Laws.
SECTION 8.15. INDEMNIFICATION . THE COMPANY SHALL
INDEMNIFY, PROTECT, AND HOLD THE ADMINISTRATIVE AGENT, CHASE
SECURITIES INC., EACH BANK, AND THEIR RESPECTIVE AFFILIATES,
PARENTS, AND SUBSIDIARIES, AND EACH OF THE FOREGOING PARTIES'
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES,
AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS (COLLECTIVELY, THE
"INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL
PRESENT AND FUTURE, KNOWN AND UNKNOWN, FIXED AND CONTINGENT,
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, AND PROCEEDINGS AND ALL REASONABLE AND
NECESSARY COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL
REASONABLE ATTORNEYS' FEES AND LEGAL EXPENSES, AND AMOUNTS PAID
IN SETTLEMENT WHETHER OR NOT SUIT IS BROUGHT), AND DISBURSEMENTS
OF ANY KIND OR NATURE WHATSOEVER (THE "INDEMNIFIED LIABILITIES")
WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE INDEMNIFIED PARTIES, IN ANY WAY RELATING TO OR
ARISING OUT OF (A) ANY LOAN PAPERS OR TRANSACTION CONTEMPLATED BY
ANY LOAN PAPER (INCLUDING, WITHOUT LIMITATION, THE ACQUISITION),
OR (B) ANY INDEMNIFIED PARTY'S SOLE OR CONCURRENT ORDINARY
NEGLIGENCE ARISING IN CONNECTION WITH ANY LOAN PAPER OR ANY
TRANSACTION CONTEMPLATED BY ANY LOAN PAPER, TO THE EXTENT THAT
ANY OF THE INDEMNIFIED LIABILITIES AS TO ANY INDEMNIFIED PARTY
RESULTS, DIRECTLY OR INDIRECTLY, FROM ANY CLAIM MADE, OR ACTION,
SUIT, OR PROCEEDING COMMENCED BY OR ON BEHALF OF ANY PERSON OTHER
THAN BY SUCH INDEMNIFIED PARTY; PROVIDED THAT, THE COMPANY SHALL
HAVE NO OBLIGATION HEREUNDER TO ANY INDEMNIFIED PARTY WITH
RESPECT TO ANY INDEMNIFIED LIABILITY ARISING FROM THE FRAUD,
GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR UNLAWFUL ACTS OF SUCH
INDEMNIFIED PARTY OR ANY ASSOCIATED PERSON OF SUCH INDEMNIFIED
PARTY. AS USED IN THIS PARAGRAPH, THE TERM "ASSOCIATED PERSON"
MEANS, WITH RESPECT TO ANY PERSON, THE AFFILIATES, PARENTS,
SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES,
AGENTS, SUCCESSORS, ASSIGNS, AND ATTORNEYS OF SUCH PERSON, OR OF
ANOTHER PERSON OF WHICH SUCH PERSON IS ALSO AN ASSOCIATED PERSON.
THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION SET FORTH
IN THIS SECTION SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE
OBLIGATION AND TERMINATION OF THIS AGREEMENT. THE COMPANY MAY,
AT ITS OWN COST AND EXPENSE, PARTICIPATE IN THE DEFENSE IN ANY
PROCEEDING INVOLVING ANY INDEMNIFIED LIABILITY. IF NO EVENT OF
DEFAULT EXISTS, THE COMPANY MAY ASSUME THE DEFENSE IN THAT
PROCEEDING ON BEHALF OF THE APPLICABLE INDEMNIFIED PARTIES,
INCLUDING THE EMPLOYMENT OF COUNSEL IF FIRST APPROVED (WHICH
APPROVAL MAY NOT BE UNREASONABLY WITHHELD) BY THE APPLICABLE
INDEMNIFIED PARTIES. IF THE COMPANY ASSUMES ANY DEFENSE, IT
SHALL KEEP THE APPLICABLE INDEMNIFIED PARTIES FULLY ADVISED OF
THE STATUS OF, AND SHALL CONSULT WITH THOSE INDEMNIFIED PARTIES
BEFORE TAKING ANY MATERIAL POSITION IN RESPECT OF, THAT
PROCEEDING. IF THE COMPANY CONSENTS OR IF ANY INDEMNIFIED PARTY
REASONABLY DETERMINES THAT AN ACTUAL CONFLICT OF INTEREST EXISTS
BETWEEN THE COMPANY AND THAT INDEMNIFIED PARTY WITH RESPECT TO
THE SUBJECT MATTER OF THE PROCEEDING OR THAT THE COMPANY IS NOT
DILIGENTLY PURSUING THE DEFENSE, THEN (I) THAT INDEMNIFIED PARTY
MAY, AT THE COMPANY'S EXPENSE, EMPLOY COUNSEL TO REPRESENT
INDEMNIFIED PARTY THAT IS SEPARATE FROM COUNSEL FOR THE COMPANY
OR ANY OTHER PERSON IN THAT PROCEEDING AND (II) THE COMPANY IS NO
LONGER ENTITLED TO ASSUME THE DEFENSE ON BEHALF OF THAT
INDEMNIFIED PARTY. THE COMPANY MAY NOT AGREE TO THE SETTLEMENT
OF ANY INDEMNIFIED LIABILITY WITHOUT THE PRIOR WRITTEN CONSENT OF
THE APPLICABLE INDEMNIFIED PARTIES UNLESS THAT SETTLEMENT FULLY
RELIEVES THOSE INDEMNIFIED PARTIES OF ANY LIABILITY WHATSOEVER
FOR THAT INDEMNIFIED LIABILITY.
SECTION 8.16. ENTIRETY . THE LOAN PAPERS REPRESENT
THE FINAL AGREEMENT BETWEEN THE BORROWERS, THE GUARANTOR, BANKS
AND ADMINISTRATIVE AGENT AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY SUCH
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH
PARTIES.
SECTION 8.17. WAIVER OF JURY TRIAL . EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.18. Conversion of Currencies . (a) If, for
the purpose of obtaining judgment in any court, it is necessary
to convert a sum owing hereunder in one currency into another
currency, each party hereto (including any Canadian Borrowers)
agrees, to the fullest extent that it may effectively do so, that
the rate of exchange used shall be that at which in accordance
with normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency on the
Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrowers in respect of any
sum due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only
to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum
originally due to the Applicable Creditor in the Agreement
Currency, such the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of each Borrower
contained in this Section 8.18 shall survive the termination of
this Agreement and the payment of all other amounts owing
hereunder.
SECTION 8.19. Interest Act (Canada) . For purposes of
the Interest Act (Canada) and disclosure thereunder, whenever
interest to be paid with respect to Canadian Advances or fees
relating thereto is to be calculated on the basis of a year of
360 days or any other period of time that is less than a calendar
year, the yearly rate of interest to which the rate determined
pursuant to such calculation is equivalent is the rate so
determined multiplied by the actual number of days in the
calendar year in which the same is to be ascertained and divided
by either 360 or such other period of time, as the case may be.
SECTION 8.20. Termination of Guarantee Agreement . On
the Restatement Date, each Company Guarantee shall be pro tanto
terminated, released and of no further force and effect.
However, unless and until such date occurs as provided herein,
each Company Guarantee shall remain in full force and effect and
shall not be affected by this Agreement.
ARTICLE IX
ANADARKO GUARANTY
SECTION 9.01. The Anadarko Guaranty .
(a) The Guarantor irrevocably and unconditionally
guarantees to each Bank and the Administrative Agent and their
respective successors and assigns, (i) the full and punctual
payment of principal of and interest on each Advance when due,
whether at maturity, by acceleration, by redemption or otherwise,
and all other monetary obligations of the Borrowers under this
Agreement, and (ii) the full and punctual performance within
applicable grace periods of all other obligations of the
Borrowers under this Agreement (collectively, the "Guaranteed
Obligations").
(b) The Guarantor further agrees that the Anadarko
Guaranty constitutes a guarantee of payment, performance and
compliance and not merely of collection.
(c) The obligations of the Guarantor to make any
payment hereunder may be satisfied by causing the Company to make
such payment.
(d) The Guarantor also agrees to pay any and all costs
and expenses (including, without limitation, reasonable
attorneys' fees incurred by the Administrative Agent or any Bank
in enforcing any of their respective rights under the Anadarko
Guaranty, laws or otherwise) of the Administrative Agent or any
Bank against the Company or any other Person or against the
Administrative Agent or any Bank for the payments in respect of
any amounts to any Bank pursuant to the provisions of the
Anadarko Guaranty.
(e) The Guarantor waives presentment to, demand of
payment from and protest to the Company or any other Borrower of
any of the Guaranteed Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
The obligations of the Guarantor hereunder shall not be affected
by the failure of the Administrative Agent or any other Bank to
assert any claim or demand or to enforce or exercise any right or
remedy against the Company or any other Borrower under the
provisions of the Credit Agreement, any other Loan Papers or
otherwise.
(f) The obligations of the Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or
termination for any reason (other than the payment in full in
cash of all the Guaranteed Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of
the Guaranteed Obligations, and shall not be subject to any
defense (other than a defense of payment or performance), set-
off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise.
(g) The Guarantor waives any defense based on or
arising out of any defense of the Company or any other Borrower
or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the
liability of the Company or any other Borrower, other than the
final payment in full in cash of all the Guaranteed Obligations.
SECTION 9.02. Subrogation . Anadarko shall be
subrogated to any of the rights (whether contractual, under
applicable laws or otherwise) of the Administrative Agent or any
Bank against the Company or any other Person or against any Bank
for the payments in respect of any amounts to any Bank pursuant
to the provisions of this Anadarko Guaranty; provided, however,
that the Guarantor shall not be entitled to enforce, or to
receive any payments arising out of or based upon, such right of
subrogation with the principal of and interest on all Advances
until all other Guarantied Obligations shall have been paid in
full and the Commitments terminated.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
UNION PACIFIC RESOURCES GROUP INC.
By:
Name:
Title:
ANADARKO CANADA CORPORATION
By:
Name:
Title:
ANADARKO PETROLEUM CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK (the successor
by merger to Chase Bank of Texas, N.A.),
as Administrative Agent and as a Bank
By:
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Sub-Agent
By:
Name:
Title:
THE TORONTO-DOMINION BANK,
in respect of the participated Canadian
Commitment with The Chase Manhattan Bank
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON CANADA
By:
Name:
Title:
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
BANK OF AMERICA CANADA
By:
Name:
Title:
ROYAL BANK OF CANADA
By:
Name:
Title:
By:
Name:
Title:
BANK OF MONTREAL
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCH
By:
Name:
Title:
By:
Name:
Title:
DEUTSCHE BANK CANADA
By:
Name:
Title:
By:
Name:
Title:
BANK ONE, N.A.
(Main Office - Chicago)
By:
Name:
Title:
BANK ONE, CANADA
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
THE TORONTO-DOMINION BANK
By:
Name:
Title:
ABN AMRO BANK, N.V.
By:
Name:
Title:
By:
Name:
Title:
ABN AMRO BANK CANADA
By:
Name:
Title:
By:
Name:
Title:
UBS AG
By:
Name:
Title:
By:
Name:
Title:
UBS BANK [CANADA]
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By:
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
KBC BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
Name:
Title:
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
THE FROST NATIONAL BANK
By:
Name:
Title:
ANNEX I
BANKER'S ACCEPTANCES
(a) Interpretation. All references in this Annex to
"this Agreement" refer to the Agreement to which this Annex is
attached, including this Annex. All capitalized terms in this
Annex have the meanings given to them in this Agreement, unless
otherwise defined in this Annex. All references to "Sections"
and "Articles" in this Annex are references to sections and
articles of this Agreement, unless otherwise specified.
(b) General Provisions. Drafts issued by a Canadian
Borrower on the occasion of any Acceptance Borrowing shall be in
an aggregate face amount of not less than Canadian $10,000,000 or
an integral multiple of Canadian $5,000,000 in excess thereof
and, subject to the terms and conditions set forth in this
Agreement, shall be accepted by the Canadian Banks ratably in
accordance with their respective Canadian Commitments. For
purposes of this Agreement, the full face value of an Acceptance,
without discount, shall be used when calculations are made to
determine the outstanding amount of any Acceptance or the
Assigned Dollar Value thereof.
(c) Terms of Acceptance. Each Draft shall be accepted
and purchased by a Canadian Bank, upon the written request of the
applicable Canadian Borrower given in accordance with paragraph
(d) of this Annex, by the completion and acceptance by such
Canadian Bank of a Draft (i) payable in Canadian Dollars, drawn
by such Canadian Borrower on such Canadian Bank in accordance
with this Agreement, to the order of such Canadian Bank or, in
the case of depository bills within the meaning of the Depository
Bills and Notes Act (Canada), to the order of "CDS&Co.", and (ii)
maturing prior to the Termination Date on a Business Day that
occurs either 30, 60 or 90 days (or such other period as agreed
to by the Canadian Sub-Agent and the Canadian Banks)after the
date of such Draft, all as specified in the relevant Notice of
Drawing.
(d) Notice of Drawing and Discount of Acceptances.
(i) With respect to each requested acceptance of
Drafts, the applicable Canadian Borrower shall give the
Canadian Sub-Agent a notice (a "Notice of Drawing"),
substantially in the form of Exhibit D hereto (which shall
be irrevocable) to be received prior to 11:00 a.m. (Toronto
time) at least two Business Days prior to the date of the
requested acceptance, specifying:
(A) the date on which such Drafts are to be
accepted;
(B) the aggregate face amount of such
Drafts;
(C) the maturity date of such Drafts; and
(D) such additional information as the
Canadian Sub-Agent or any Canadian Bank may from time
to time reasonably request to be included in such
notices.
(ii) Upon receipt of a Notice of Drawing the
Canadian Sub-Agent shall promptly notify each Canadian Bank
of the contents thereof and of such Canadian Bank's ratable
share of the Acceptances requested thereunder. The
aggregate face amount of the Drafts to be accepted by a
Canadian Bank shall be determined by the Canadian Sub-Agent
by reference to the respective Canadian Commitments of the
Canadian Banks.
(iii) Not later than 10:00 a.m., Toronto time,
on the date of the acceptance of a Draft, the Canadian Sub-
Agent shall notify the applicable Canadian Borrower (or the
Company, on its behalf) of the Applicable BA Discount Rate.
Not later than 2:00 p.m., Toronto time, on such date each
Canadian Bank shall, subject to the fulfillment of the
applicable conditions precedent specified in Sections 3.02
and 3.03 and subject to the provisions of paragraph (f) of
this Annex, (A) on the basis of the information supplied by
the Canadian Sub-Agent, as aforesaid, complete a Draft or
Drafts of such Canadian Borrower by filling in the amount,
date and maturity date thereof in accordance with the
applicable Notice of Drawing, (B) duly accept such Draft or
Drafts, (C) discount the Acceptance or Acceptances created
thereby, (D) give the Canadian Sub-Agent telegraphic or
telex notice of such Canadian Bank's acceptance of such
Draft or Drafts and of its discount thereof, confirming the
amount paid to the Canadian Sub-Agent for the account of
such Canadian Borrower and (E) remit to the Canadian Sub-
Agent in Canadian Dollars in immediately available funds an
amount equal to the BA Discount Proceeds of such Acceptance.
Upon receipt by the Canadian Sub-Agent of such sums from the
Canadian Banks, the Canadian Sub-Agent shall make the
aggregate amount thereof available to the applicable
Canadian Borrower. The Acceptance Fee with respect to any
Acceptance accepted by any Canadian Bank shall be deducted
from the BA Discount Proceeds payable by such Canadian Bank
hereunder.
(iv) Each extension of credit hereunder through
the acceptance of Drafts shall be made simultaneously and
pro rata by the Canadian Banks in accordance with their
respective Canadian Commitments; provided, however, that the
failure of any Canadian Bank to accept any Drafts shall not
relieve any other Canadian Bank of its obligation to accept
Drafts hereunder (it being understood, however, that no
Canadian Bank shall be responsible for the failure of any
other Canadian Bank to accept any Drafts required to be
accepted by such other Canadian Bank).
(e) Acceptance Obligation. Each Canadian Borrower is
obligated, and hereby unconditionally agrees, to pay to each
Canadian Bank the face amount of each Acceptance created by such
Canadian Bank in accordance with a Notice of Drawing pursuant to
paragraph (d) of this Annex on the maturity date thereof, or on
such earlier date as may be required pursuant to provisions of
this Agreement. With respect to each Acceptance which is
outstanding hereunder, the applicable Canadian Borrower shall
notify the Canadian Sub-Agent prior to 11:00 a.m. (Toronto time)
three Business Days prior to the maturity date of such Acceptance
(which notice shall be irrevocable) of such Canadian Borrower's
intention to issue Acceptances on such maturity date to provide
for the payment of such maturing Acceptance and shall deliver a
Notice of Drawing to the Canadian Sub-Agent. Any repayment of an
Acceptance must be made at or before 2:00 p.m. (Toronto time) on
the maturity date of such Acceptance, it being understood that
payments by any Canadian Borrowers and fundings by any Canadian
Banks in respect of each maturing Acceptance and each new
Acceptance shall be made on a net basis reflecting the difference
between the face amount of the maturing Acceptance and the BA
Discount Proceeds of the new Acceptance, less the applicable
Acceptance Fee. If the applicable Canadian Borrower fails to
give the foregoing notice, and if the subject Acceptance
Obligation is not paid when due, the applicable Canadian Borrower
shall irrevocably be deemed to have requested and to have been
advanced a Canadian Prime Rate Contract Advance in the face
amount of such maturing Acceptance on the maturity date of such
Acceptance from the Canadian Bank which accepted such maturing
Acceptance, which Canadian Prime Rate Contract Advance Acceptance
shall bear interest, payable on demand, at a rate per annum equal
to the Canadian Prime Rate in effect from time to time, from the
due date thereof to the date of payment thereof. Each Canadian
Borrower waives presentment for payment and any other defense to
payment of any amounts due to a Canadian Bank in respect of any
Acceptances accepted by such Canadian Bank under this Agreement
which might exist solely by reason of those Acceptances being
held, at the maturity thereof, by that Canadian Bank in its own
right and each Canadian Borrower agrees not to claim any days of
grace if that Canadian Bank, as holder, sues such Canadian
Borrower on those Acceptances for payment of the amounts payable
by such Canadian Borrower thereunder.
(f) Power of Attorney. Each Canadian Borrower hereby
appoints each Canadian Bank as the attorney of the applicable
Canadian Borrower to sign and endorse on behalf of such Canadian
Borrower, in handwriting or by facsimile or mechanical signature
as and when requested by the applicable Canadian Borrower, blank
forms of Drafts conforming with the requirements of this
Agreement and in form satisfactory to the applicable Canadian
Bank. Each Canadian Borrower hereby recognizes and agrees that
all Acceptances signed or endorsed or both on its behalf by a
Canadian Bank shall bind the Canadian Borrower as fully and
effectually as if signed in the handwriting of and duly issued by
the proper signing officer of the applicable Canadian Borrower.
Each Canadian Bank is hereby authorized to issue such Acceptances
endorsed in blank in such face amounts as may be determined by
such Canadian Bank provided that the aggregate amount thereof is
equal to the aggregate amount of Acceptances required to be
accepted by such Canadian Bank. No Canadian Bank shall be liable
for any damage, loss or other claim arising by reason of any loss
or improper use of any Acceptance except loss or improper use
arising by reason of the gross negligence, wilful misconduct or
unlawful conduct of such Canadian Bank, its officers, employees,
agents or representatives. Each Canadian Bank shall maintain a
record with respect to Acceptances (A) voided by it for any
reason, (B) accepted by it hereunder, (C) purchased by it
hereunder and (D) canceled at their respective maturities. Each
Canadian Bank further agrees to retain such records in the manner
and for the statutory periods provided in the various Canadian
provincial or federal statutes and regulations which apply to
such Canadian Bank.
(g) In case any authorized signatory of any Canadian
Borrower whose signature shall appear on any Draft shall cease to
have such authority before the acceptance of a Draft with respect
to such Draft, the obligations of such Canadian Borrower
hereunder and under such Acceptance shall nevertheless be valid
for all purposes as if such authority had remained in force until
such creation. The Canadian Sub-Agent and each Canadian Bank
shall be fully protected in relying upon any instructions
received from the Company or any Canadian Borrower (orally or
otherwise) without any duty to make inquiry as to the genuineness
of such instructions. The Canadian Sub-Agent and each Canadian
Bank shall be entitled to rely on instructions received from any
person identifying himself (orally or otherwise) as a duly
authorized officer of the Company or any Canadian Borrower and
shall not be liable for any errors, omissions, delays or
interruptions in the transmission of such instructions, except
for those arising by reason of the gross negligence, wilful
misconduct or unlawful conduct of the Canadian Sub-Agent or such
Canadian Bank or their respective officers, employees, agents or
representatives, as the case may be.
(h) Rights of Canadian Bank as to Acceptances.
Neither the Canadian Sub-Agent nor any Canadian Bank shall have
any responsibility as to the application of the proceeds by any
Canadian Borrower of any discounted proceeds of any Acceptances.
For greater certainty, each Canadian Bank may, at any time,
purchase Acceptances issued by any Canadian Borrower and may at
any time and from time to time hold, sell, rediscount or
otherwise dispose of any or all Acceptances accepted and/or
purchased by it.
(i) Acceptance Equivalent Loans. Whenever any
Canadian Borrower delivers a Notice of Drawing to the Canadian
Sub-Agent under this Agreement requesting the Canadian Banks to
accept Drafts, a Canadian Bank may at its option, in lieu of
accepting Drafts, make an Acceptance Equivalent Loan. On each
date on which Drafts are to be accepted, subject to the same
terms and conditions applicable to the acceptance of Drafts, any
Canadian Bank that elects to make an Acceptance Equivalent Loan,
upon delivery by the applicable Canadian Borrower of an executed
promissory note substantially in the form of Exhibit E hereto (a
"Discount Note") payable to the order of such Canadian Bank, will
remit to the Canadian Sub-Agent in immediately available funds
for the account of such Canadian Borrower discounted proceeds in
regards thereto equal to the amount of BA Discount Proceeds that
would have applied had such Canadian Bank accepted and purchased
a Draft in the same face amount on the same day, net of the
Acceptance Fee payable in regard thereto under subparagraph
(j)(ii) of this Annex.
(j) Terms Applicable to Discount Notes. The term
"Acceptance" when used in this Agreement shall be construed to
include Discount Notes and all terms of this Agreement applicable
to Acceptances shall apply equally to Discount Notes evidencing
Acceptance Equivalent Loans with such changes as may in the
context be necessary (except that no Discount Note may be sold,
rediscounted or otherwise disposed of by the Canadian Bank making
Acceptance Equivalent Loans other than pursuant to Section 8.07).
For greater certainty:
(i) a Discount Note shall mature and be due and
payable on the same date as the maturity date for
Acceptances specified in the applicable Notice of Drawing;
(ii) an Acceptance Fee will be payable in respect
of a Discount Note and shall be calculated at the same rate
and in the same manner as the Acceptance Fee in respect of
an Acceptance; and
(iii) an Acceptance Equivalent Loan made by a
Canadian Bank will be considered to be part of a Canadian
Bank's outstanding Acceptances for all purposes of this
Agreement.
(k) Prepayment of Acceptances and Discount Notes. No
Acceptance or Discount Note may be repaid or prepaid prior to the
maturity date of such Acceptance or Discount Note, except in
accordance with the provisions of Article VI.
(l) At the option of any Canadian Bank, Acceptances
under this Agreement to be accepted by such Canadian Bank may be
issued in the form of depository bills payable to the order of
"CDS&Co." for deposit with The Canadian Depository for Securities
Limited pursuant to the Depository Bills and Notes Act (Canada).
All depository bills so issued shall be governed by the
provisions of this Annex.
EXHIBIT A-1
FORM OF NOTICE OF CONTRACT BORROWING
[Date]
The Chase Manhattan Bank
(the successor by merger to
Chase Bank of Texas, N.A.)
Energy Department
2200 Ross Avenue
3rd Floor
Dallas, Texas 75201
Attention: Lee Beckelman
Vice President
In the case of a Canadian Contact Borrowing, also:
The Chase Manhattan Bank of Canada
100 King Street West, Suite 6900
Toronto, Ontario M5X 1A4
Attention: Funding Officer
Ladies and Gentlemen:
The undersigned, Union Pacific Resources Group Inc. (the
"Company"), refers to the Amended and Restated Competitive
Advance/Revolving Credit Agreement dated as of October 25, 2000 (
as further restated, amended, modified, supplemented and in
effect from time to time, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
Company, the Canadian Borrowers, the Guarantor, certain Banks
party thereto, The Chase Manhattan Bank (the successor by merger
to Chase Bank of Texas, N.A.), as Administrative Agent for said
Banks, and The Chase Manhattan Bank of Canada, as Canadian Sub-
Agent, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the Company [on behalf
of {enter applicable Borrower}] hereby requests a Contract
Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Contract Borrowing
(the "Proposed Contract Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract
Borrowing is ______________, 20___.
(ii) The Type and Class of Contract Advances comprising
the Proposed Contract Borrowing is [US Alternate Base Rate
Advances] [Canadian Prime Rate Contract Advance] [Eurodollar
Rate Contract Advances].
(iii) The aggregate amount of the Proposed Contract
Borrowing is $________________.
(iv) The Interest Period for each Contract Advance made
as part of the Proposed Contract Borrowing is [_________
days] [_____________ month[s]].
Very truly yours,
UNION PACIFIC RESOURCES GROUP INC.
By:
Name:
Title:
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BORROWING
[Date]
The Chase Manhattan Bank
(the successor by merger to
Chase Bank of Texas, N.A.)
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Attention: Daniel Fischer
The Chase Manhattan Bank (the successor by merger to
Chase Bank of Texas, N.A.),as Administrative Agent
In care of The Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Daniel Fischer
Fax: (212) 552-5777
Ladies and Gentlemen:
The undersigned, Union Pacific Resources Group Inc. (the
"Company"), refers to the Amended and Restated Competitive
Advance/Revolving Credit Agreement, dated as of October 25, 2000
(as further restated, modified, supplemented and in effect from
time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the Company, the
Canadian Borrowers, the Guarantor, certain Banks party thereto,
The Chase Manhattan Bank (the successor by merger to Chase Bank
of Texas, N.A.), as Administrative Agent, and The Chase Bank of
Canada, as Canadian Sub-Agent, hereby gives you notice pursuant
to Section 2.03 of the Credit Agreement that the Company [on
behalf of {enter applicable borrower}] hereby requests a
Competitive Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Competitive
Borrowing (the "Proposed Competitive Borrowing") is requested to
be made:
1. Date of Proposed Competitive
Borrowing (which is a Business Day)
2. Type and Class of Competitive
Advances comprising the Proposed
Competitive Borrowing1/
3. Aggregate Amount of Proposed
Competitive Borrowing2/
4. Maturity Date3/
5. Other Provisions, if any
Very truly yours,
UNION PACIFIC RESOURCES GROUP INC.
By:
Name:
Title:
EXHIBIT A-3
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Date]
[Name of Bank]
[Address of Bank]
Attention:
Ladies and Gentlemen:
Reference is made to the Amended and Restated Competitive
Advance/Revolving Credit Agreement (as further restated, amended,
modified, supplemented and in effect from time to time, the
"Credit Agreement") dated as of October 25, 2000, among Union
Pacific Resources Group Inc. (the "Company"), the Canadian
Borrowers, the Guarantor, the Banks named therein, The Chase
Manhattan Bank (the successor by merger to Chase Bank of Texas,
N.A.), as Administrative Agent, The Chase Manhattan Bank of
Canada, as Canadian Sub-Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Company delivered a
Notice of Competitive Borrowing [on behalf of {enter applicable
borrower}] requesting a Competitive Borrowing on _______________,
20___ pursuant to Section 2.03(a) of the Credit Agreement and in
that connection you are invited to submit a Competitive Bid by
[Date] / [Time].4/
(A) Date of Proposed Competitive
Borrowing
(B) Type and Class of Competitive
Advances comprising the
Proposed Competitive Borrowing
(C) Aggregate Amount of Proposed
Competitive Borrowing
(D) Maturity Date
Very truly yours,
The Chase Manhattan Bank (the successor by
merger to Chase Bank of Texas, N.A.),
as Administrative Agent
By:
Name:
Title:
EXHIBIT A-4
FORM OF COMPETITIVE BID
[Date]
The Chase Manhattan Bank
(the successor by merger to
Chase Bank of Texas, N.A.),
as Administrative Agent for the
Banks referred to below
In care of The Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Daniel Fischer
Fax: (212) 552-5777
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Amended and
Restated Competitive Advance/Revolving Credit Agreement dated as
of October 25, 2000 (as further restated, amended, modified,
supplemented and in effect from time to time, the "Credit
Agreement"), among Union Pacific Resources Group Inc. (the
"Company"), the Canadian Borrowers, the Guarantor, the Banks
named therein, The Chase Manhattan Bank (the successor by merger
to Chase Bank of Texas, N.A.), as Administrative Agent, and The
Chase Manhattan Bank of Canada, as Canadian Sub-Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The undersigned hereby makes a Competitive Bid
pursuant to Section 2.03(a)(ii) of the Credit Agreement in
response to the Notice of Competitive Borrowing made by the
Company [on behalf of {enter applicable borrower}] on
_______________, 20___, and in that connection sets forth below
the terms on which such Competitive Bid is made:
(A) Principal Amount5/
(B) Competitive Bid Rate6/
(C) Maturity Date7/
The undersigned hereby confirms that it is prepared to
extend credit to the [enter applicable borrower] upon acceptance
by the Company [on behalf of {enter applicable borrower}] of this
bid in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
[Name of Bank],
By:
Name:
Title:
EXHIBIT A-5
FORM OF COMPETITIVE BID ACCEPTANCE/REJECT LETTER
[Date]
The Chase Manhattan Bank
(the successor by merger to
Chase Bank of Texas, N.A.), as
Administrative Agent under the
Credit Agreement referred to below
The Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Daniel Fischer
Fax: (212) 552-5777
Ladies and Gentlemen:
Reference is made to the Amended and Restated Competitive
Bid/Revolving Credit Agreement dated as of October 25, 2000 (as
further restated, amended, modified, supplemented and in effect
from time to tome, the "Credit Agreement"), among Union Pacific
Resources Group Inc. (the "Company"), the Canadian Borrowers, the
Guarantor, the Banks named therein, The Chase Manhattan Bank (the
successor by merger to Chase Bank of Texas, N.A.), as
Administrative Agent, and The Chase Manhattan Bank of Canada, as
Canadian Sub-Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
In accordance with Section 2.03(a)(ii) of the Credit
Agreement, the Company has received a notice of bids in
connection with its Notice of Competitive Borrowing dated [insert
date] and in accordance with Section 2.03(a)(iii) of the Credit
Agreement, the Company, [on behalf of {enter applicable Canadian
borrower}] hereby accepts the following bids for maturity on
[insert date]:
Principal Amount Fixed Bank
(or Face Amount Rate/Margin/BA
in Discount Rate
case of an
Acceptance)
$ [%] / [+/-,
_________________ .________%]
$ [%] / [+/-,
_________________ .________%]
The undersigned hereby rejects the following bids:
Principal Amount Fixed Bank
(or Face Amount Rate/Margin/BA
in Discount Rate
case of an
Acceptance)
$ [%] / [+/-,
_________________ .________%]
$ [%] / [+/-,
_________________ .________%]
The $______________ should be deposited in The Chase
Manhattan Bank, account number [insert number] on [insert date]
[or] [wire transferred to (Name of Bank) account number [insert
number] [other wire instructions] or [date]].
Very truly yours,
UNION PACIFIC RESOURCES GROUP
INC.
By:
Name:
Title:
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
[Date]
Reference is made to the Amended and Restated Competitive
Advance/Revolving Credit Agreement, dated as of October 25, 2000
(as further restated, amended, modified, supplemented and in
effect from time to time, the "Credit Agreement") among Union
Pacific Resources Group Inc., a Utah corporation (the "Company"),
the Canadian Borrowers, the Guarantor, the Banks (as defined in
the Credit Agreement), The Chase Manhattan Bank (the successor by
merger to Chase Bank of Texas, N.A.), as Administrative Agent for
the Banks (the "Administrative Agent"), and The Chase Manhattan
Bank of Canada, as Canadian Sub-Agent. Terms defined in the
Credit Agreement are used herein with the same meaning.
_______________________ (the "Assignor") and
________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse and without any representations and
warranties of the Assignor except as specifically set forth
below, and the Assignee hereby purchases and assumes from the
Assignor, a portion of the Assignor's rights and obligations
under the Credit Agreement as of the Assignment Date (as defined
below) equal to a ____________%8/ interest in and to all of the
rights and obligations of the Banks under the Credit Agreement
(including, without limitation, such percentage interest in the
Commitments as in effect on the Assignment Date and the Advances,
if any, outstanding on the Assignment Date).
2. The Assignor (i) represents and warrants that as
of the date hereof its Commitment (without giving effect to
assignments thereof which have not yet become effective) is
$______________ [and its Maximum Canadian Commitment Amount is
$___________]9
/ and the aggregate outstanding principal amount (including the
face amount of Acceptances) of Advances owing to it (without
giving effect to assignments thereof which have not yet become
effective is $_____________; (ii) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (iii) make no representation or warranty and
assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Company or the Canadian Borrowers or the performance or
observance by the Company or the Canadian Borrowers of any of
their respective obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01(f) thereof and
such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent
or the Canadian Sub-Agent, the Assignor or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent and the Canadian
Sub-Agent to take such action as administrative agents on its
behalf and to exercise such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (vi)
specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof.
4. The effective date for this Agreement and
Acceptance shall be ______________________ (the "Assignment
Date")10/. Following the execution of this Agreement and
Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, as of the
Assignment Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder,
and (ii) the Assignor shall, to the extent provided in this
Agreement and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after
the Assignment Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods
prior to the Assignment Date directly between themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
DOMESTIC LENDING OFFICE
(and address for notices)
[Address]
EURODOLLAR LENDING OFFICE
[Address]
Agreed to this _____ day
of _______________, 20___
ANADARKO PETROLEUM CORPORATION
By:
Name:
Title:
Accepted this ______ day
of ________________, 20___
The Chase Manhattan Bank (the successor by merger to
Chase Bank of Texas, N.A.),
as Administrative Agent
By:
Name:
Title:
EXHIBIT D
FORM OF NOTICE OF DRAWING
[Date]
The Chase Manhattan Bank of Canada
Suite 6900, 1 First Canadian Place
100 King Street West
Toronto, Ontario
M5X 1A4
Ladies and Gentlemen:
Reference is made to the Amended and Restated Competitive
Advance/Revolving Credit Agreement dated as of October 25, 2000
(as further restated, amended, modified, supplemented and in
effect from time to time, the "Credit Agreement"), among Union
Pacific Resources Group Inc., the Canadian Borrowers, the
Guarantor, the Banks named therein, The Chase Manhattan Bank (the
successor by merger to Chase Bank of Texas, N.A.), as
Administrative Bank, as Administrative Agent, and The Chase
Manhattan Bank of Canada, as Canadian Sub-Agent. Capitalized
terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned Canadian Borrower hereby requests an advance
of funds by way of Acceptance under the Credit Agreement and in
that connection sets forth below the information relating to such
advances as required by Section 2.18 and Annex I of the Credit
Agreement.
(a) Business Day of the proposed
advance of funds _________________, 20___
(b) Aggregate face amount of
the Acceptance11/ C$
(c) Term ____________________ days
The undersigned Canadian Borrower acknowledges that, as a
condition precedent to the acceptance of any of the requested
Acceptances, an Acceptance Fee shall be payable to each of the
Canadian Banks in respect thereof pursuant to Section 2.05(c) of
the Credit Agreement.
By delivery of this Notice of Drawing and the acceptance of
any or all of the Acceptances by the Canadian Banks in response
to this Notice of Drawing, the Canadian Borrower shall be deemed
to have represented and warranted that the conditions to lending
specified in the Credit Agreement have satisfied with respect to
the proposed advance of funds.
Yours truly,
[Name of Canadian Borrower]
By:
Name:
Title:
EXHIBIT E
FORM OF DISCOUNT NOTE
CDN $ _______________ Toronto, Ontario
Date: _______________
FOR VALUE RECEIVED, _____________________, an
________________ corporation (the "Canadian Borrower"), hereby
promises to pay to the order of
_________________________________________________ (the "Canadian
Bank"), in lawful money of Canada in immediately available funds,
at the Canadian Sub-Agent's office (as such term is defined
below) initially located at Suite 6900, 1 First Canadian Place,
100 King Street West, Toronto, Ontario, M5X 1A4 on
_____________________ the principal sum of
_____________________________ ($____________) DOLLARS.
This Discount Note is one of the Discount Notes
referred to in the Amended and Restated Competitive
Advance/Revolving Credit Agreement dated as of October 25, 2000,
among Union Pacific Resources Group Inc., the Canadian Borrowers,
the Guarantor, the Banks named therein, The Chase Manhattan Bank
(the successor by merger to Chase Bank of Texas, N.A.), as
Administrative Agent and The Chase Manhattan Bank of Canada, as
Canadian Sub-Agent (as further restated, amended, modified,
supplemented and in effect from time to time, the "Credit
Agreement") and is entitled to the benefits thereof and of any
other documents referred to therein. All capitalized terms used
herein and not otherwise defined shall have the meaning ascribed
thereto in the Credit Agreement.
In case an Event of Default shall occur and be
continuing, the principal of this Discount Note may be declared
to be due and payable in the manner and with the effect provided
in the Credit Agreement.
The Canadian Borrower hereby waives presentment,
demand, protest or notice of any kind in connection with this
Discount Note.
THIS DISCOUNT NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Name of Canadian Borrower]
By:
Name:
Title:
<TABLE>
<CAPTION>
SCHEDULE I
Amended and Restated Competitive Advance/Revolving Credit Agreement
Banks, Lending Offices and Commitments
BANK NOTICE DOMESTIC AND CANADIAN CANADIAN COMMITME CANADIAN
ADDRESS EURODOLLAR NOTICE LENDING NT COMMITME
(Other than LENDING ADDRESS OFFICE (In U.S. NT
Notices of OFFICE (Other than Dollars) (In U.S.
Borrowing) Notices of Dollars)
Borrowing)
<S> <C> <C> <C> <C> <C> <C>
The Chase 2200 Ross 2200 Ross 100 King 100 King $39,600,000 $36,000,000
Manhattan Avenue Avenue Street West Street West
Bank./ The Dallas, TX Dallas, TX Suite 6900 Suite 6900
Chase Manhattan 75201 75201 Toronto, Toronto
Bank of Canada Attn: Lee Attn: Lee Ontario M5X Ontario M5X
Beckelman Beckelman 1A4 1A4
Attn: Arun Attn: Arun
Bery Bery
The Toronto- Toronto- Toronto- Toronto- Toronto- N/A
Dominion Bank, Dominion Bank Dominion Bank Dominion Bank Dominion Bank
in respect of Tower Tower Tower Tower
the 55 King 555 King 555 King 555 King
participated Street West Street West Street West Street West
Canadian 9th Floor 9th Floor 9th Floor 9th Floor
Commitment with Toronto, Toronto, Toronto, Toronto,
The Chase Ontario M5K Ontario M5K Ontario M5K Ontario M5K
Manhattan Bank. 1A2 1A2 1A2 1A2
Attn: Credit Attn: Credit Attn: Credit Attn: Credit
Manager, Manager, Manager, Manager,
Financial Financial Financial Financial
Services Services Services Services
Credit Suisse 11 Madison 11 Madison One First One First $39,600,000 $35,300,000
First Boston/ Avenue Avenue Canadian Canadian
Credit Suisse 10th Floor 10th Floor Place Place
First Boston New York, NY New York, NY Suite 3000 Suite 3000
Canada 10010 10010 Toronto, Toronto,
Attn: David Attn: David Ontario M5X Ontario M5X
Koczan Koczan 1C9 1C9
Attn: Alain Attn: Alain
Daoust Daoust
Bank of 901 Main 901 Main Attn: Richard Attn: Richard $39,600,000 $35,300,000
America, N.A./ Street Street Hall Hall
Bank of America 64th Floor 64th Floor
Canada Dallas, TX Dallas, TX
75202 75202
Attn: J. Attn: J.
Scott Fowler Scott Fowler
Royal Bank of 2800 Post Oak 2800 Post Oak 335 8th 335 8th $39,600,000 $39,600,000
Canada Blvd. Blvd. Avenue SW Avenue SW
5700 Williams 5700 Williams 23rd Floor 23rd Floor
Tower Tower Calgary, Calgary,
Houston, TX Houston, TX Alberta T2P Alberta T2P
77056 77056 1C9 1C9
Attn: Jason Attn: Jason Attn: Sonia Attn: Sonia
York York Tibbets Tibbets
Bank of 700 Louisiana 700 Louisiana First First $31,500,000 $31,500,000
Montreal Street Street Canadian Canadian
Suite 4400 Suite 4400 Centre Centre
Houston, TX Houston, TX 24th Floor 24th Floor
77002 77002 350 - 7th 350 - 7th
Attn: Melissa Attn: Melissa Avenue S.W. Avenue S.W.
Bauman Bauman Calgary, Calgary,
Alberta T2) Alberta T2)
3N9 3N9
Attn: Elsa Attn: Elsa
Niebuhr Niebuhr
Citibank, N.A. Seven World Seven World N/A N/A $31,500,000 N/A
Trade Center Trade Center
New York, NY New York, NY
10048 10048
Attn: Attn:
Townsend Townsend
Weeks Weeks
Deutsche Bank 31 West 52nd 31 West 52nd 222 Bay 222 Bay $31,500,000 $20,000,000
AG, New Street Street Street Street
York and/or New York, NY New York, NY Suite 1200 Suite 1200
Cayman Island 10019 10019 P. O. Box 196 P. O. Box 196
Branches/ Attn: Joel Attn: Joel Toronto, Toronto,
Deutsche Bank Makowsky Makowsky Ontario M5K Ontario M5K
Canada 1H6 1H6
Attn: Rod Attn: Rod
O'Hara O'Hara
Bank One, N.A./ 910 Travis 910 Travis 161 Bay 161 Bay $31,500,000 $27,000,000
Bank One, Street Street Street Street
Canada 6th Floor 6th Floor Suite 4240 Suite 4240
Houston, TX Houston, TX Toronto, Toronto,
77002 77002 Ontario M5J Ontario M5J
Attn: Ronald Attn: Ronald 2S1 2S1
Dierker Dierker Attn: Lehong Attn: Lehong
Zhang Zhang
Toronto- 909 Fannin 909 Fannin 800 Home Oil 800 Home Oil $31,500,000 $31,500,000
Dominion(Texas) Street Street Tower Tower
, Suite 1700 Suite 1700 324 8th 324 8th
Inc. Houston, TX Houston, TX Avenue S.W. Avenue S.W.
The Toronto- 77010 77010 Calgary, Calgary,
Dominion Bank Attn: Mark Attn: Mark Alberta T2P Alberta T2P
Green Green 2Z2 2Z2
Attn: Loretta Attn: Loretta
Palandri Palandri
ABN Amro Bank, ABN AMRO ABN AMRO 2500 650 W. 2500 650 W. $31,500,000 $27,000,000
N.V./ Bank, N.V. Bank, N.V. Georgia St. Georgia St.
ABN Amro Bank 208 South 208 South Vancouver, BC Vancouver, BC
Canada LaSalle St. LaSalle St. V6B 4N8 V6B 4N8
Suite 1500 Suite 1500 Attn: Jane Attn: Jane
Chicago, IL Chicago, IL Taylor Taylor
60604-1003 60604-1003
Attn: Credit Attn: Loan
Administration Administration
UBS AG/ 677 677 154 154 $18,000,000 $15,000,000
UBS Bank Washington Washington University University
[Canada] Blvd. Blvd. Avenue Avenue
Stamford, CT Stamford, CT Toronto, Toronto,
06901 06901 Ontario M5H Ontario M5H
Attn: Attn: 3Z4 3Z4
Margarita Margarita Attn: Amy Attn: Amy
Mateo Saja Mateo Saja Fung Fung
The Bank of New One Wall One Wall N/A N/A $18,000,000 N/A
York Street Street
19th Floor 19th Floor
New York, NY New York, NY
10286 10286
Attn: Raymond Attn: Raymond
Palmer Palmer
Industrial Bank 333 Clay 333 Clay N/A N/A $12,600,000 N/A
of Japan Street Street
Suite 4850 Suite 4850
Houston, TX Houston, TX
77002 77002
Attn: Michael Attn: Michael
Oaks Oaks
Westdeutsche 1211 Avenue 1211 Avenue N/A N/A $12,600,000 N/A
Landesbank of the of the
Girozentrale, Americas Americas
New York New York, NY New York, NY
Branch 10036 10036
Attn: Felicia Attn: Felicia
LaForgia LaForgia
Mellon Bank, One Mellon One Mellon N/A N/A $12,600,000 N/A
N.A. Bank Center Bank Center
Room 4425 Room 4425
Pittsburgh, Pittsburgh,
PA 15258 PA 15258
Attn: Roger Attn: Roger
Howard Howard
KBC Bank N.V. 1349 West 1349 West N/A N/A $12,600,000 N/A
Peachtree St. Peachtree St.
Suite 1750 Suite 1750
Atlanta, GA Atlanta, GA
30309 30309
Attn: Michael Attn: Michael
Sawicki Sawicki
The Northern 50 South 50 South N/A N/A $6,300,000 N/A
Trust Company LaSalle St. LaSalle St.
B-11 B-11
Chicago, IL Chicago, IL
60675 60675
Attn: David Attn: David
Love Love
Suntrust Bank 25 Park Place 25 Park Place N/A N/A $6,300,000 N/A
Atlanta, GA Atlanta, GA
30303 30303
Attn: Todd Attn: Todd
Davis Davis
The Frost 777 Main 777 Main N/A N/A $3,600,000 N/A
National Bank Street Street
Suite 100 Suite 100
Ft. Worth, TX Ft. Worth, TX
76102 76102
Attn: John Attn: John
Warren Warren
TOTAL $450,000,000 $298,200,000
</TABLE>
_______________________________
1 Eurodollar Rate Competitive Advance or Fixed Rate
Competitive Advance or Acceptance Borrowing.
2 Not less than US$10,000,000 and in integral multiples of
US$5,000,000 in excess thereof in respect of US
Competitive Borrowing or a Eurodollar Rate Competitive
Advance or not less than Cdn $10,000,000 and in integral
multiples of Cdn $5,000,000 in respect of Acceptance as
part of Canadian Competitive Borrowing.
3 (i) In the case of a Eurodollar Rate Competitive
Borrowing, 1, 2, 3, or 6 months, (ii) in the case of an
Acceptance Borrowing, 30, 60, or 90 calendar days (or
such other period as agreed to by the Canadian Sub-Agent
and the Canadian Banks), and (iii) in the case of a Fixed
Rate Competitive Borrowing, not less than seven calendar
days, and which in any case shall not end later than the
Termination Date.
4 The Competitive Bid must be received by the
Administrative Agent (i) in the case of Eurodollar Rate
Competitive Advances, not later than 9:30 a.m., New York
City time, three Business Days before a proposed
Competitive Borrowing, (ii) in the case of a Fixed Rate
Competitive Borrowing, not later than 9:30 a.m. New York
City time, on the date of a proposed Competitive
Borrowing and (iii) in the case of an Acceptance
Borrowing, not later than 9:30 a.m. New York City time,
one Business Day before a proposed Competitive Borrowing.
5 Not less than U.S.$10,000,000 or greater than the
available aggregate Commitment and in integral multiples
of U.S.$5,000,000 in respect of US Competitive Borrowing
or a Eurodollar Rate Competitive Advance, or not less
than Cdn $10,000,000 and in integral multiples of Cdn
$5,000,000 in respect of Acceptances as part of Canadian
Competitive Borrowing. Multiple bids will be accepted by
the Administrative Agent.
6 i.e., Eurodollar Rate + or ________%, in the case of
Eurodollar Rate Competitive Advances, or _______%, in the
case of Fixed Rate Competitive Advance or _______%
discount rate and _______% acceptance fee rate, in the
case of an Acceptance Borrowing or Acceptance Equivalent
Loan, as applicable (in each case, expressed in the form
of a decimal to no more than four decimal places).
7 The Maturity Date must be as specified in the Notice of
Competitive Borrowing.
8 Specify percentage to no more than four decimal points.
9 If the Assignor has a Maximum Canadian Commitment
Amount, separately specify the percentage being assigned
if different than the percentage of the Commitment being
assigned.
10 Such date shall be at least three Business Days after
the execution of this Assignment and Acceptance, unless
otherwise agreed by the Company and the Administrative
Agent.
11 Not less than Cdn. $10,000,000 and in integral multiples
of Cdn. $5,000,000 in excess thereof.
