\nLess than or equal to 25% 0.200%<\/p>\nGreater than 25%, but less than or equal 0.250%.
\nto 75%<\/p>\n
Greater than 75% 0.375%
\n<\/c><\/s><\/caption>\n<\/table>\n
Accrued commitment fees shall be payable quarterly in arrears on each Quarterly
\nDate and on the earlier of the date the Aggregate Commitments are terminated or
\nthe Termination Date.<\/p>\n
(b) Letter of Credit Fees<\/p>\n
(i) The Borrower agrees to pay the Administrative Agent, for the
\n account of each Lender, commissions for issuing the Letters of Credit on the
\n daily average outstanding of the maximum liability of the Issuing Bank
\n existing from time to time under such Letter of Credit (calculated
\n separately for each Letter of Credit) at the rate per annum equal to the
\n Applicable Margin in effect from time to time for Eurodollar Loans, provided
\n that each Letter of Credit shall bear a minimum commission of $500. Each
\n Letter of Credit shall be deemed to be outstanding up to the full face
\n amount of the Letter of Credit until the Issuing Bank has received the
\n canceled Letter of Credit or a written cancellation of the Letter of Credit
\n from the beneficiary of such Letter of Credit in form and substance
\n acceptable to the Issuing Bank or the Letter of Credit expires in accordance
\n with its terms, or for any reductions in the amount of the Letter of Credit
\n (other than from a drawing), written notification from the beneficiary of
\n such Letter of Credit or the Letter of Credit reduces in accordance with its
\n terms. Such commissions are payable quarterly in arrears on each Quarterly
\n Date and upon cancellation or expiration of each such Letter of Credit.<\/p>\n
-18-
\n 25<\/p>\n
(ii) The Borrower agrees to pay the Administrative Agent, for the
\n account of the Issuing Bank, commissions for issuing the Letters of Credit
\n (calculated separately for each Letter of Credit) equal to 0.125% of the
\n face amount of each Letter of Credit, payable upon issuance of such Letter
\n of Credit.<\/p>\n
(iii) The Borrower agrees to pay the Issuing Bank on demand the
\n Issuing Bank’s customary letter of credit transactional fees, including
\n amendment fees, negotiation and drawing fees, or other fees customarily
\n payable with respect to each Letter of Credit.<\/p>\n
Section 2.05 Several Obligations. The failure of any Lender to make any
\nLoan to be made by it or to provide funds for disbursements or reimbursements
\nunder Letters of Credit on the date specified therefor shall not relieve any
\nother Lender of its obligation to make its Loan or provide funds on such date,
\nbut no Lender shall be responsible for the failure of any other Lender to make a
\nLoan to be made by such other Lender or to provide funds to be provided by such
\nother Lender.<\/p>\n
Section 2.06 Notes. The Loans made by each Lender shall be evidenced by
\na single promissory note of the Borrower in substantially the form of Exhibit A,
\ndated (i) the Closing Date or (ii) the effective date of an Assignment pursuant
\nto Section 12.06(b), payable to the order of such Lender in a principal amount
\nequal to its Maximum Credit Amount as originally in effect and otherwise duly
\ncompleted and such substitute Notes as required by Section 12.06(b). The date,
\namount, Type, interest rate and Interest Period of each Loan made by each
\nLender, and all payments made on account of the principal thereof, shall be
\nrecorded by such Lender on its books for its Note, and, prior to any transfer
\nmay be endorsed by such Lender on the schedule attached to such Note or any
\ncontinuation thereof or on any separate record maintained by such Lender.
\nFailure to make any such notation or to attach a schedule shall not affect any
\nLender’s or the Borrower’s rights or obligations in respect of such Loans or
\naffect the validity of such transfer by any Lender of its Note.<\/p>\n
Section 2.07 Prepayments.<\/p>\n
(a) Voluntary Prepayments. The Borrower may prepay the Base Rate Loans
\n upon not less than one (1) Business Day’s prior notice to the Administrative
\n Agent (which shall promptly notify the Lenders), which notice shall specify
\n the prepayment date (which shall be a Business Day) and the amount of the
\n prepayment (which shall be at least $1,000,000 or the remaining aggregate
\n principal balance outstanding on the Notes) and shall be irrevocable and
\n effective only upon receipt by the Administrative Agent, provided that
\n interest on the principal prepaid, accrued to the prepayment date, shall be
\n paid on the prepayment date. The Borrower may prepay Eurodollar Loans on the
\n same conditions as for Base Rate Loans (except that prior notice to the
\n Administrative Agent shall be not less than three (3) Business Days for
\n Eurodollar Loans) and in addition such prepayments of Eurodollar Loans shall
\n be subject to the terms of Section 5.05.<\/p>\n
(b) Mandatory Prepayments<\/p>\n
(i) Termination or Reduction of Aggregate Maximum Revolving Credit
\n Amounts. If, after giving effect to any termination or reduction of the
\n Aggregate Maximum Credit Amounts pursuant to Section 2.03(b), the
\n outstanding aggregate principal amount of the Loans, plus the LC Exposure,
\n exceeds the Aggregate Maximum Credit Amounts, the<\/p>\n
-19-
\n 26
\n Borrower shall (i) prepay the Loans on the date of such termination or
\n reduction in an aggregate principal amount equal to the excess,
\n together with interest on the principal amount paid accrued to the date
\n of such prepayment and (ii) if any excess remains after prepaying all
\n of the Loans because of LC Exposure, pay to the Administrative Agent on
\n behalf of the Lenders an amount equal to the excess to be held as cash
\n collateral as provided in Section 2.10(b) hereof.<\/p>\n
(ii) Redetermination of Borrowing Base. Upon any
\n redetermination of the amount of the Borrowing Base in accordance with
\n Section 2.08, if the redetermined Borrowing Base results in a Borrowing
\n Base Deficiency, then the Borrower shall, within 60 days of receipt of
\n written notice thereof, (i) prepay the Loans in a principal amount
\n sufficient to eliminate such Borrowing Base Deficiency, together with
\n interest on the principal amount paid accrued to the date of such
\n prepayment and (ii) if, because of LC Exposure, a Borrowing Base
\n Deficiency remains after prepaying all of the Loans, pay to the
\n Administrative Agent on behalf of the Lenders an amount equal to
\n such remaining Borrowing Base Deficiency to be held as cash collateral
\n as provided in Section 2.10(b).<\/p>\n
(c) Generally. Prepayments permitted or required under this
\n Section 2.07 shall be without premium or penalty, except as required
\n under Section 5.05 for prepayment of Eurodollar Loans. Any prepayment
\n may be reborrowed subject to the then effective Aggregate Commitments.<\/p>\n
Section 2.08 Borrowing Base<\/p>\n
(a) The Borrowing Base shall be determined in accordance with
\n Section 2.08(b) by the Administrative Agent and the Co-Agent with the
\n concurrence of the Majority Lenders and is subject to redetermination
\n in accordance with Section 2.08(d). Upon any redetermination of the
\n Borrowing Base, such redetermination shall remain in effect until the
\n next successive Redetermination Date. So long as any of the Commitments
\n are in effect or any LC Exposure or Loans are outstanding hereunder,
\n this facility shall be governed by the then effective Borrowing Base.
\n During the period from and after the Closing Date until the first
\n redetermination pursuant to Section 2.08(d), the amount of the
\n Borrowing Base shall be $225,000,000.<\/p>\n
(b) Upon receipt of the Reserve Reports required by Section
\n 8.07 and such other reports, data and supplemental information as may
\n from time to time be reasonably requested by the Administrative Agent
\n and the Co-Agent (the “Engineering Reports”), the Administrative Agent
\n and the Co-Agent will redetermine the Borrowing Base. Such
\n redetermination will be in accordance with their normal and customary
\n procedures for evaluating oil and gas reserves and other related
\n assets as such exist at that particular time. The Administrative Agent
\n and the Co-Agent, in their sole discretion, may make adjustments to the
\n rates, volumes and prices and other assumptions set forth therein in
\n accordance with its normal and customary procedures for evaluating oil
\n and gas reserves and other related assets as such exist at that
\n particular time. The Administrative Agent and the Co-Agent shall
\n propose to the Lenders a new Borrowing Base within 30 days following
\n receipt by the Administrative Agent, the Co-Agent and the Lenders of
\n the Engineering Reports in a timely and complete manner. After having
\n received notice of such proposal by the Administrative<\/p>\n
-20-
\n 27<\/p>\n
Agent and the Co-Agent, the Majority Lenders shall have 15 days to
\n agree or disagree with such proposal. If at the end of the 15 days, the
\n Majority Lenders have not communicated their approval or disapproval,
\n such silence shall be deemed to be an approval and the Administrative
\n Agent’s and the Co-Agent’s proposal shall be the new Borrowing Base. If
\n however, the Majority Lenders notify the Administrative Agent within 15
\n days of their disapproval, the Majority Lenders shall, within a
\n reasonable period of time, agree on a new Borrowing Base. The
\n Administrative Agent, the Co-Agent and the Majority Lenders must
\n approve a new Borrowing Base.<\/p>\n
(c) The Administrative Agent and the Co-Agent may exclude any
\n Oil and Gas Property or portion of production therefrom or any income
\n from any other Property from the Borrowing Base, at any time, because
\n title information is not reasonably satisfactory.<\/p>\n
(d) So long as any of the Commitments are in effect and until
\n payment in full of all Loans hereunder, on or around the first Business
\n Day of each June (being a “Scheduled Redetermination Date”), the
\n Lenders shall redetermine the amount of the Borrowing Base in
\n accordance with Section 2.08(b). In addition, (i) the Majority Lenders
\n may initiate a redetermination of the Borrowing Base at any other time
\n as they so elect by specifying in writing to the Borrower the date on
\n which the Borrower is to furnish, or cause to be furnished, a Reserve
\n Report in accordance with Section 8.07(b) and the date on which such
\n redetermination is to occur; provided, however, that the Majority
\n Lenders may initiate only one such unscheduled redetermination during
\n any consecutive twelve (12) month period, and (ii) the Borrower may,
\n from time to time, initiate a redetermination of the Borrowing Base at
\n any other time as it so elects by specifying in writing to the
\n Administrative Agent (who will promptly notify the Lenders) the date on
\n which the Borrower will furnish, or cause to be furnished, a Reserve
\n Report in accordance with Section 8.07(b) and the date on which such
\n redetermination is requested to occur; provided, however, that the
\n Borrower may initiate only one such unscheduled redetermination during
\n any consecutive twelve (12) month period. Any such unscheduled
\n Borrowing Base redeterminations shall be made in accordance with the
\n procedures described in Section 2.08(b).<\/p>\n
(e) If at any time, and from time to time, the Borrowing Base
\n Utilization exceeds 50%, the Administrative Agent and the Co-Agent may,
\n or upon request of the Majority Lenders shall, redetermine the amount
\n of the Borrowing Base by specifying in writing to the Borrower the date
\n on which the Borrower is to furnish a Reserve Report in accordance with
\n Section 8.07(b) and the date on which such redetermination is to occur
\n provided, however, that the Administrative Agent, the Co-Agent and the
\n Majority Lenders may initiate only one such unscheduled redetermination
\n between Scheduled Redetermination Dates in addition to any
\n redeterminations provided by Section 2.08(d).<\/p>\n
(f) The Administrative Agent shall promptly notify in writing
\n the Borrower and the Lenders of the new Borrowing Base. Any
\n redetermination of the Borrowing Base shall not be in effect until
\n written notice is received by the Borrower.<\/p>\n
Section 2.09 Assumption of Risks. The Borrower assumes all
\nrisks of the acts or omissions of any beneficiary of any Letter of Credit or any
\ntransferee thereof with respect to its use of such Letter of Credit. Neither any
\nIssuing Bank (except in the case of gross negligence or willful<\/p>\n
-21-
\n 28<\/p>\n
misconduct on the part of such Issuing Bank or any of its employees), its
\ncorrespondents nor any Lender shall be responsible for the validity, sufficiency
\nor genuineness of certificates or other documents or any endorsements thereon,
\neven if such certificates or other documents should in fact prove to be invalid,
\ninsufficient, fraudulent or forged; for errors, omissions, interruptions or
\ndelays in transmissions or delivery of any messages by mail, telex or otherwise,
\nwhether or not they be in code; for errors in translation or for errors in
\ninterpretation of technical terms; the validity or sufficiency of any instrument
\ntransferring or assigning or purporting to transfer or assign any Letter of
\nCredit or the rights or benefits thereunder or proceeds thereof, in whole or in
\npart, which may prove to be invalid or ineffective for any reason; the failure
\nof any beneficiary or any transferee of any Letter of Credit to comply fully
\nwith conditions required in order to draw upon any Letter of Credit; or for any
\nother consequences arising from causes beyond such Issuing Bank’s control or the
\ncontrol of such Issuing Bank’s correspondents. In addition, neither any Issuing
\nBank, the Administrative Agent nor any Lender shall be responsible for any
\nerror, neglect, or default of any of such Issuing Bank’s correspondents; and
\nnone of the above shall affect, impair or prevent the vesting of any of such
\nIssuing Bank’s, the Administrative Agent’s or any Lender’s rights or powers
\nhereunder or under the Letter of Credit Agreements, all of which rights shall be
\ncumulative. Each Issuing Bank and its correspondents may accept certificates or
\nother documents that appear on their face to be in order, without responsibility
\nfor further investigation of any matter contained therein regardless of any
\nnotice or information to the contrary. In furtherance and not in limitation of
\nthe foregoing provisions, the Borrower agrees that any action, inaction or
\nomission taken or not taken by an Issuing Bank or by any correspondent for such
\nIssuing Bank in good faith in connection with any Letter of Credit, or any
\nrelated drafts, certificates, documents or instruments, shall be binding on the
\nBorrower and shall not put the Issuing Bank or its correspondents under any
\nresulting liability to the Borrower.<\/p>\n
Section 2.10 Obligation to Reimburse and to Prepay<\/p>\n
(a) if a disbursement by an Issuing Bank is made under any
\n Letter of Credit, the Borrower shall pay to the Administrative Agent
\n within two (2) Business Days after notice of any such disbursement is
\n received by the Borrower, the amount of each such disbursement made by
\n such Issuing Bank under the Letter of Credit (if such payment is not
\n sooner effected as may be required under this Section 2.10 or under
\n other provisions of the Letter of Credit), together with interest on
\n the amount disbursed from and including the date of disbursement until
\n payment in full of such disbursed amount at a varying rate per annum
\n equal to (i) the then applicable interest rate for Base Rate Loans
\n through the second Business Day after notice of such disbursement is
\n received by the Borrower and (ii) thereafter, the Post-Default Rate for
\n Base Rate Loans (but in no event to exceed the Highest Lawful Rate)
\n for the period from and including the third Business Day following the
\n date of such disbursement to and including the date of repayment in
\n full of such disbursed amount. The obligations of the Borrower under
\n this Agreement with respect to each Letter of Credit shall be absolute,
\n unconditional and irrevocable and shall be paid or performed strictly
\n in accordance with the terms of this Agreement under all circumstances
\n whatsoever, including, without limitation, but only to the fullest
\n extent permitted by applicable law, the following circumstances: (i)
\n any lack of validity or enforceability of this Agreement, any Letter of
\n Credit or any other Loan Document; (ii) any amendment or waiver of
\n (including any default), or any consent to departure from this
\n Agreement (except to the extent permitted by any amendment or waiver),
\n any Letter of Credit or any other Loan Document; (iii) the existence of
\n any claim, set-off, defense or other rights which the Borrower may have
\n at any time against the beneficiary of<\/p>\n
-22-
\n 29<\/p>\n
any Letter of Credit or any transferee of any Letter of Credit (or any
\n Persons for whom any such beneficiary or any such transferee may be
\n acting), such Issuing Bank, the Administrative Agent, any Lender or any
\n other Person, whether in connection with this Agreement, any Letter of
\n Credit, any other Loan Document, the transactions contemplated hereby
\n or any unrelated transaction; (iv) any statement, certificate, draft,
\n notice or any other document presented under any Letter of Credit
\n proves to have been forged, fraudulent, insufficient or invalid in any
\n respect or any statement therein proves to have been untrue or
\n inaccurate in any respect whatsoever; (v) payment by such Issuing Bank
\n under any Letter of Credit against presentation of a draft or
\n certificate which appears on its face to comply, but does not comply,
\n with the terms of such Letter of Credit; and (vi) any other
\n circumstance or happening whatsoever, whether or not similar to any of
\n the foregoing.<\/p>\n
Notwithstanding anything in this Agreement to the contrary, the
\n Borrower will not be liable for payment or performance that results
\n from the gross negligence or willful misconduct of the Issuing Bank.<\/p>\n
(b) In the event of the occurrence of any Event of Default, a
\n payment or prepayment pursuant to Section 2.07(b) or the maturity of
\n the Notes, whether by acceleration or otherwise, an amount equal to the
\n LC Exposure (or the excess in the case of Section 2.07(b)) shall be
\n deemed to be forthwith due and owing by the Borrower to the Issuing
\n Bank, the Administrative Agent and the Lenders as of the date of any
\n such occurrence; and the Borrower’s obligation to pay such amount shall
\n be absolute and unconditional, without regard to whether any
\n beneficiary of any such Letter of Credit has attempted to draw down all
\n or a portion of such amount under the terms of a Letter of Credit, and,
\n to the fullest extent permitted by applicable law, shall not be subject
\n to any defense or be affected by a right of set-off, counterclaim or
\n recoupment which the Borrower may now or hereafter have against any
\n such beneficiary, the Issuing Bank, the Administrative Agent, the
\n Lenders or any other Person for any reason whatsoever. Such payments
\n shall be held by the Issuing Bank on behalf of the Lenders as cash
\n collateral securing the LC Exposure in an account or accounts at the
\n Principal Office; and the Borrower hereby, and by its deposit with the
\n Administrative Agent, grants to the Administrative Agent a security
\n interest in such cash collateral. In the event of any such payment by
\n the Borrower of amounts contingently owing under outstanding Letters of
\n Credit and in the event that thereafter drafts or other demands for
\n payment complying with the terms of such Letters of Credit are not made
\n prior to the respective expiration dates thereof, the Administrative
\n Agent and the Lenders agree, if no Event of Default has occurred and is
\n continuing or if no other amounts are outstanding under this Agreement,
\n the Notes or any other Loan Document, to remit to the Borrower amounts
\n for which the contingent obligations evidenced by the Letters of Credit
\n have ceased.<\/p>\n
(c) Each Lender severally and unconditionally agrees that it
\n shall promptly reimburse the Issuing Bank an amount equal to such
\n Lender’s Percentage Share of any disbursement made by the Issuing Bank
\n under any Letter of Credit that is not reimbursed according to this
\n Section 2.10.<\/p>\n
(d) Notwithstanding anything to the contrary contained herein,
\n if no Default exists and subject to availability under the Aggregate
\n Commitments (after reduction for LC Exposure), to the extent the
\n Borrower has not reimbursed the Issuing Bank for any drawn<\/p>\n
-23-
\n 30<\/p>\n
upon Letter of Credit within one (1) Business Day after notice of such
\n disbursement has been received by the Borrower, the amount of such
\n Letter of Credit reimbursement obligation shall automatically be funded
\n by the Lenders as a Loan hereunder and used by the Lenders to pay such
\n Letter of Credit reimbursement obligation. If a Default exists, or if
\n the funding of such Letter of Credit reimbursement obligation as a Loan
\n would cause the aggregate amount of all Loans outstanding to exceed the
\n Aggregate Commitments (after reduction for LC Exposure), such Letter of
\n Credit reimbursement obligation shall not be funded as a Loan, but
\n instead shall accrue interest as provided in Section 2.10(a).<\/p>\n
Section 2.11 Lending Offices The Loans of each Type made by each Lender
\nshall be made and maintained at such Lender’s Applicable Lending Office for
\nLoans of such Type.<\/p>\n
ARTICLE III<\/p>\n
PAYMENTS OF PRINCIPAL AND INTEREST<\/p>\n
Section 3.01 Repayment of Loans<\/p>\n
(a) Loans. On the Termination Date, the Borrower shall repay
\n the outstanding aggregate principal of the Notes.<\/p>\n
(b) Generally. The Borrower will pay to the Administrative
\n Agent, for the account of each Lender, the principal payments required
\n by this Section 3.01.<\/p>\n
Section 3.02 Interest<\/p>\n
(a) Interest Rates. The Borrower will pay to the
\n Administrative Agent, for the account of each Lender, interest on the
\n unpaid principal amount of each Loan made by such Lender for the period
\n commencing on the date such Loan is made to, but excluding, the date
\n such Loan shall be paid in full, at the following rates per annum:<\/p>\n
(i) if such a Loan is a Base Rate Loan, the Base Rate
\n (as in effect from time to time) plus the Applicable Margin for Base
\n Rate Loans (as in effect from time to time), but in no event to exceed
\n the Highest Lawful Rate; and<\/p>\n
(ii) if such a Loan is a Eurodollar Loan, for each
\n Interest Period relating thereto, the Eurodollar Adjusted Rate for such
\n Loan plus the Applicable Margin for Eurodollar Loans (as in effect from
\n time to time), but in no event to exceed the Highest Lawful Rate.<\/p>\n
(b) Post-Default Rate. Notwithstanding the foregoing, the
\n Borrower will pay to the Administrative Agent, for the account of each
\n Lender interest at the applicable Post-Default Rate on any principal of
\n any Loan made by such Lender, and (to the fullest extent permitted by
\n law) on any other amount payable by the Borrower hereunder, under any
\n Loan Document or under any Note held by such Lender to or for account
\n of such Lender, for the period commencing on the date such amount
\n becomes due until the same is paid in full.<\/p>\n
-24-
\n 31<\/p>\n
(c) Due Dates. Accrued interest on Base Rate Loans shall be
\n payable quarterly on each Quarterly Date commencing on September 30,
\n 2000, and accrued interest on each Eurodollar Loan shall be payable on
\n the last day of the Interest Period therefor and, if such Interest
\n Period is longer than three months at three-month intervals following
\n the first day of such Interest Period, except that interest payable at
\n the Post-Default Rate shall be payable from time to time on demand and
\n interest on any Eurodollar Loan that is converted into a Base Rate Loan
\n (pursuant to Section 5.04) shall be payable on the date of conversion
\n (but only to the extent so converted). Any accrued and unpaid interest
\n on the Loans on the Termination Date shall be paid on such date.<\/p>\n
(d) Determination of Rates. Promptly after the determination
\n of any interest rate provided for herein or any change therein, the
\n Administrative Agent shall notify the Lenders to which such interest is
\n payable and the Borrower thereof. Each determination by the
\n Administrative Agent of an interest rate or fee hereunder shall, except
\n in cases of manifest error, be final, conclusive and binding on the
\n parties.<\/p>\n
ARTICLE IV<\/p>\n
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.<\/p>\n
Section 4.01 Payments. Except to the extent otherwise provided
\nherein, all payments of principal, interest and other amounts to be made by the
\nBorrower under this Agreement, the Notes, and the Letter of Credit Agreements
\nshall be made in Dollars, in immediately available funds, to the Administrative
\nAgent at such account as the Administrative Agent shall specify by notice to the
\nBorrower from time to time, not later than 11:00 a.m. New York time on the date
\non which such payments shall become due (each such payment made after such time
\non such due date to be deemed to have been made on the next succeeding Business
\nDay). Such payments shall be made without (to the fullest extent permitted by
\napplicable law) defense, set-off or counterclaim. Each payment received by the
\nAdministrative Agent under this Agreement or any Note for account of a Lender
\nshall be paid promptly to such Lender in immediately available funds. Except as
\notherwise provided in the definition of “Interest Period”, if the due date of
\nany payment under this Agreement or any Note would otherwise fall on a day which
\nis not a Business Day such date shall be extended to the next succeeding
\nBusiness Day and interest shall be payable for any principal so extended for the
\nperiod of such extension. At the time of each payment to the Administrative
\nAgent of any principal of or interest on any borrowing, the Borrower shall
\nnotify the Administrative Agent of the Loans to which such payment shall apply.
\nIn the absence of such notice the Administrative Agent may specify the Loans to
\nwhich such payment shall apply, but to the extent possible such payment or
\nprepayment will be applied first to the Loans comprised of Base Rate Loans.<\/p>\n
Section 4.02 Pro Rata Treatment. Except to the extent
\notherwise provided herein each Lender agrees that: (i) each borrowing from the
\nLenders under Section 2.01 and each continuation and conversion under Section
\n2.02 shall be made from the Lenders pro rata in accordance with their Percentage
\nShare, each payment of fees under Section 2.04(a) and Section 2.04(b)(i) shall
\nbe made for account of the Lenders pro rata in accordance with their Percentage
\nShare, and each termination or reduction of the amount of the Aggregate Maximum
\nCredit Amounts under Section 2.03(b) shall be applied to the Commitment of each
\nLender, pro rata according to the<\/p>\n
-25-
\n 32<\/p>\n
amount of its respective Commitment; (ii) each payment of principal of Loans by
\nthe Borrower shall be made for account of the Lenders pro rata in accordance
\nwith the respective unpaid principal amount of the Loans held by the Lenders;
\n(iii) each payment of interest on Loans by the Borrower shall be made for
\naccount of the Lenders pro rata in accordance with the amounts of interest due
\nand payable to the respective Lenders; and (iv) each reimbursement by the
\nBorrower of disbursements under Letters of Credit shall be made for account of
\nthe Issuing Bank or, if funded by the Lenders, pro rata for the account of the
\nLenders, in accordance with the amounts of reimbursement obligations due and
\npayable to each respective Lender.<\/p>\n
Section 4.03 Computations. Interest on Eurodollar Loans shall
\nbe computed on the basis of a year of 360 days and actual days elapsed
\n(including the first day but excluding the last day) occurring in the period for
\nwhich such interest is payable, unless such calculation would exceed the Highest
\nLawful Rate, in which case interest shall be calculated on the per annum basis
\nof a year of 365 or 366 days, as the case may be. Interest on Base Rate Loans
\nand fees shall be computed on the basis of a year of 365 or 366 days, as the
\ncase may be, and actual days elapsed (including the first day but excluding the
\nlast day) occurring in the period for which such interest is payable.<\/p>\n
Section 4.04 Non-receipt of Funds by the Administrative Agent.
\nUnless the Administrative Agent shall have been notified by a Lender or the
\nBorrower prior to the date on which such notifying party is scheduled to make
\npayment to the Administrative Agent (in the case of a Lender) of the proceeds of
\na Loan or a payment under a Letter of Credit to be made by it hereunder or (in
\nthe case of the Borrower) a payment to the Administrative Agent for account of
\none or more of the Lenders hereunder (such payment being herein called
\nthe “Required Payment”), which notice shall be effective upon receipt, that it
\ndoes not intend to make the Required Payment to the Administrative Agent, the
\nAdministrative Agent may assume that time Required Payment has been made and
\nmay, in reliance upon such assumption (but shall not be required to), make the
\namount thereof available to the intended recipient(s) on such date and, if such
\nLender or the Borrower (as the case may be) has not in fact made the Required
\nPayment to the Administrative Agent, the recipient(s) of such payment shall, on
\ndemand, repay to the Administrative Agent the amount so made available together
\nwith interest thereon in respect of each day during the period commencing on the
\ndate such amount was so made available by the Administrative Agent until, but
\nexcluding, the date the Administrative Agent recovers such amount at a rate per
\nannum which, for any Lender as recipient, will be equal to the Federal Funds
\nRate, and for the Borrower as recipient, will be equal to the Base Rate plus the
\nApplicable Margin.<\/p>\n
Section 4.05 Set-off, Sharing of Payments, Etc.<\/p>\n
(a) The Borrower agrees that, in addition to (and without
\n limitation of) any right of set-off, bankers’ lien or counterclaim a
\n Lender may otherwise have, each Lender shall have the right and be
\n entitled (after consultation with the Administrative Agent), at its
\n option, to offset balances held by it or by any of its Affiliates for
\n account of the Borrower or any Subsidiary at any of its offices, in
\n Dollars or in any other currency, against any principal of or interest
\n on any of such Lender’s Loans, or any other amount payable to such
\n Lender hereunder, which is not paid when due (regardless of whether
\n such balances are then due to the Borrower), in which case it shall
\n promptly notify the Borrower and the Administrative Agent thereof,
\n provided that such Lender’s failure to give such notice shall not
\n affect the validity thereof.<\/p>\n
-26-
\n 33<\/p>\n
(b) If any Lender shall obtain payment of any principal of or
\n interest on any Loan made by it to the Borrower under this Agreement
\n (or reimbursement as to any Letter of Credit) through the exercise of
\n any right of set-off, banker’s lien or counterclaim or similar right or
\n otherwise, and, as a result of such payment, such Lender shall have
\n received a greater percentage of the principal or interest (or
\n reimbursement) then due hereunder by the Borrower to such Lender than
\n the percentage received by any other Lenders, it shall promptly (i)
\n notify the Administrative Agent and each other Lender thereof and (ii)
\n purchase from such other Lenders participations in (or, if and to the
\n extent specified by such Lender, direct interests in) the Loans (or
\n participations in Letters of Credit) made by such other Lenders (or in
\n interest due thereon, as the case may be) in such amounts, and make
\n such other adjustments from time to time as shall be equitable, to the
\n end that all the Lenders shall share the benefit of such excess payment
\n (net of any expenses which may be incurred by such Lender in obtaining
\n or preserving such excess payment) pro rata in accordance with the
\n unpaid principal and\/or interest on the Loans held by each of the
\n Lenders (or reimbursements of Letters of Credit). To such end all the
\n Lenders shall make appropriate adjustments among themselves (by the
\n resale of participations sold or otherwise) if such payment is
\n rescinded or must otherwise be restored. The Borrower agrees that any
\n Lender so purchasing a participation (or direct interest) in the Loans
\n made by other Lenders (or in interest due thereon, as the case may be)
\n may exercise all rights of set-off, banker’s lien, counterclaim or
\n similar rights with respect to such participation as fully as if such
\n Lender were a direct holder of Loans (or Letters of Credit) in the
\n amount of such participation. Nothing contained herein shall require
\n any Lender to exercise any such right or shall affect the right of any
\n Lender to exercise, and retain the benefits of exercising, any such
\n right with respect to any other indebtedness or obligation of the
\n Borrower. If under any applicable bankruptcy, insolvency or other
\n similar law, any Lender receives a secured claim in lieu of a set-off
\n to which this Section 4.05 applies, such Lender shall, to the extent
\n practicable, exercise its rights in respect of such secured claim in a
\n manner consistent with the rights of the Lenders entitled under this
\n Section 4.05 to share the benefits of any recovery on such secured
\n claim.<\/p>\n
Section 4.06 Taxes.<\/p>\n
(a) Payments Free and Clear. Any and all payments by the
\n Borrower hereunder shall be made, in accordance with Section 4.01, free
\n and clear of and without deduction for any and all present or future
\n taxes, levies, imposts, deductions, charges or withholdings, and all
\n liabilities with respect thereto excluding, in the case of each Lender,
\n any Issuing Bank and the Administrative Agent, taxes imposed on its
\n income, and franchise or similar taxes imposed on it, by (i) any
\n jurisdiction (or political subdivision thereof) of which the
\n Administrative Agent, such Issuing Bank or such Lender, as the case may
\n be, is a citizen or resident or in which such Lender has an Applicable
\n Lending Office, (ii) the jurisdiction (or any political
\n subdivision thereof) in which the Administrative Agent, such Issuing
\n Bank or such Lender is organized, or (iii) any jurisdiction (or
\n political subdivision thereof) in which such Lender, such Issuing Bank
\n or the Administrative Agent is presently doing business which taxes are
\n imposed solely as a result of doing business in such jurisdiction (all
\n such non-excluded taxes, levies, imposts, deductions, charges,
\n withholdings and liabilities being hereinafter referred to as “Taxes”).
\n If the Borrower shall be required by law to deduct any Taxes from or in
\n respect of any sum payable hereunder to the Lenders, any Issuing Bank
\n or the Administrative Agent (i) the sum payable shall be increased by
\n the amount necessary so that after making all<\/p>\n
-27-
\n 34<\/p>\n
required deductions (including deductions applicable to additional sums
\n payable under this Section 4.06) such Lender, such Issuing Bank or the
\n Administrative Agent (as the case may be) shall receive an amount equal
\n to the sum it would have received had no such deductions been made,
\n (ii) the Borrower shall make such deductions and (iii) the Borrower
\n shall pay the full amount deducted to the relevant taxing authority or
\n other Governmental Authority in accordance with applicable law.<\/p>\n
(b) Other Taxes. In addition, to the fullest extent permitted
\n by applicable law, the Borrower agrees to pay any present or future
\n stamp or documentary taxes or any other excise or property taxes,
\n charges or similar levies that arise from any payment made hereunder or
\n from the execution, delivery or registration of, or otherwise with
\n respect to, this Agreement, any Assignment or any other Loan Document
\n (hereinafter referred to as “Other Taxes”).<\/p>\n
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY
\n APPLICABLE LAW, THE BORROWER WILL INDEMNIFY EACH LENDER, ISSUING BANK
\n AND THE ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF TAXES AND OTHER
\n TAXES (INCLUDING, BUT NOT LIMITED TO, ANY TAXES OR OTHER TAXES IMPOSED
\n BY ANY GOVERNMENTAL AUTHORITY ON AMOUNTS PAYABLE UNDER THIS SECTION
\n 4.06) PAID BY SUCH LENDER, THE ISSUING BANK OR THE ADMINISTRATIVE AGENT
\n (ON THEIR BEHALF OR ON BEHALF OF ANY LENDER), AS THE CASE MAY BE, AND
\n ANY LIABILITY (INCLUDING PENALTIES, INTEREST AND EXPENSES) ARISING
\n THEREFROM OR WITH RESPECT THERETO, WHETHER OR NOT SUCH TAXES OR OTHER
\n TAXES WERE CORRECTLY OR LEGALLY ASSERTED UNLESS THE PAYMENT OF SUCH
\n TAXES WAS NOT CORRECTLY OR LEGALLY ASSERTED AND SUCH ISSUING BANK’S,
\n LENDER’S OR THE ADMINISTRATIVE AGENT’S PAYMENT OF SUCH TAXES OR OTHER
\n TAXES WAS THE RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY
\n PAYMENT PURSUANT TO SUCH INDEMNIFICATION SHALL BE MADE WITHIN THIRTY
\n (30) DAYS AFTER THE DATE ANY LENDER, ANY ISSUING BANK OR THE
\n ADMINISTRATIVE AGENT, AS THE CASE MAY BE, MAKES WRITTEN DEMAND
\n THEREFOR. IF ANY LENDER, ANY ISSUING BANK OR THE ADMINISTRATIVE AGENT
\n RECEIVES A REFUND OR CREDIT IN RESPECT OF ANY TAXES OR OTHER TAXES FOR
\n WHICH SUCH LENDER, SUCH ISSUING BANK OR THE ADMINISTRATIVE AGENT HAS
\n RECEIVED PAYMENT FROM THE BORROWER IT SHALL PROMPTLY NOTIFY THE
\n BORROWER OF SUCH REFUND OR CREDIT AND SHALL, IF NO DEFAULT HAS OCCURRED
\n AND IS CONTINUING, WITHIN THIRTY (30) DAYS AFTER RECEIPT OF A REQUEST
\n BY THE BORROWER (OR PROMPTLY UPON RECEIPT, IF THE BORROWER HAS
\n REQUESTED APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT HERETO), PAY
\n AN AMOUNT EQUAL TO SUCH REFUND OR CREDIT TO THE BORROWER WITHOUT
\n INTEREST (BUT WITH ANY INTEREST SO REFUNDED OR CREDITED), PROVIDED THAT
\n THE BORROWER, UPON THE REQUEST OF SUCH LENDER, SUCH ISSUING BANK OR THE
\n ADMINISTRATIVE AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT (PLUS
\n PENALTIES, INTEREST OR OTHER CHARGES) TO SUCH LENDER, SUCH ISSUING BANK
\n OR THE ADMINISTRATIVE AGENT IN THE EVENT SUCH LENDER, SUCH ISSUING BANK
\n OR THE ADMINISTRATIVE AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.<\/p>\n
-28-
\n 35<\/p>\n
(d) Lender Representations<\/p>\n
(i) Each Lender represents that it is either (i) a
\n banking association or corporation organized under the laws of the
\n United States of America or any state thereof or (2) it is entitled to
\n complete exemption from United States withholding tax imposed on or
\n with respect to any payments, including fees, to be made to it pursuant
\n to this Agreement (A) under an applicable provision of a tax convention
\n to which the United States of America is a party or (B) because it is
\n acting through a branch, agency or office in the United States of
\n America and any payment to be received by it hereunder is effectively
\n connected with a trade or business in the United States of America.
\n Each Lender that is not a banking association or corporation organized
\n under the laws of the United States of America or any state thereof
\n agrees to provide to the Borrower and the Administrative Agent on the
\n Closing Date, or on the date of its delivery of the Assignment
\n pursuant to which it becomes a Lender, and at such other times as
\n required by United States law or as the Borrower or the Administrative
\n Agent shall reasonably request, two accurate and complete original
\n signed copies of either (A) Internal Revenue Service Form W-8-ECI (or
\n successor form) certifying that all payments to be made to it hereunder
\n will be effectively connected to a United States trade or business (the
\n “Form W-8-ECI Certification”) or (B) Internal Revenue Service Form
\n W-8-BEN (or successor form) certifying that it is entitled to the
\n benefit of a provision of a tax convention to which the United States
\n of America is a party which completely exempts from United States
\n withholding tax all payments to be made to it hereunder (the “Form
\n W-8-BEN Certification”). In addition, each Lender agrees that if it
\n previously filed a Form W-8-ECI Certification, it will deliver to the
\n Borrower and the Administrative Agent a new Form W-8-ECI Certification
\n prior to the first payment date occurring in each of its subsequent
\n taxable years; and if it previously filed a Form W-8-BEN Certification,
\n it will deliver to the Borrower and the Administrative Agent a new
\n certification prior to the first payment date falling in the third year
\n following the previous filing of such certification. Each Lender also
\n agrees to deliver to the Borrower and the Administrative Agent such
\n other or supplemental forms as may at any time be required as a result
\n of changes in applicable law or regulation in order to confirm or
\n maintain in effect its entitlement to exemption from United States
\n withholding tax on any payments hereunder, provided that the
\n circumstances of such Lender at the relevant time and applicable laws
\n permit it to do so. If a Lender determines, as a result of any change
\n in either (i) a Governmental Requirement or (ii) its circumstances,
\n that it is unable to submit any form or certificate that it is
\n obligated to submit pursuant to this Section 4.06, or that it is
\n required to withdraw or cancel any such form or certificate previously
\n submitted, it shall promptly notify the Borrower and the Administrative
\n Agent of such fact. If a Lender is organized under the laws of a
\n jurisdiction outside the United States of America, unless the Borrower
\n and the Administrative Agent have received a Form W-8-BEN Certification
\n or Form W-8-ECI Certification satisfactory to them indicating that all
\n payments to be made to such Lender hereunder are not subject to United
\n States withholding tax, the Borrower shall withhold taxes from such
\n payments at the applicable statutory rate. Each Lender agrees to
\n indemnify and hold harmless the Borrower or Administrative Agent, as
\n applicable, from any United States taxes, penalties, interest and other
\n expenses, costs and losses incurred or payable by (i) the
\n Administrative Agent as a result of such Lender’s failure to submit any
\n form or certificate that it is required to provide pursuant to this
\n Section 4.06 or (ii) the Borrower or the Administrative Agent as a
\n result of their reliance on any such form or certificate which such
\n Lender has provided to them pursuant to this Section 4.06.<\/p>\n
-29-
\n 36<\/p>\n
(ii) For any period with respect to which a Lender
\n has failed to provide the Borrower with the form required pursuant to
\n this Section 4.06, if any, (other than if such failure is due to a
\n change in a Governmental Requirement occurring subsequent to the date
\n on which a form originally was required to be provided), such Lender
\n shall not be entitled to indemnification under Section 4.06 with
\n respect to taxes imposed by the United States which taxes would not
\n have been imposed but for such failure to provide such forms, provided,
\n however, that if a Lender, which is otherwise exempt from or subject to
\n a reduced rate of withholding tax, becomes subject to taxes because of
\n its failure to deliver a form required hereunder, the Borrower shall
\n take such steps as such Lender shall reasonably request to assist such
\n Lender to recover such taxes.<\/p>\n
(iii) Any Lender claiming any additional amounts
\n payable pursuant to this Section 4.06 shall use reasonable efforts
\n (consistent with legal and regulatory restrictions) to file any
\n certificate or document requested by the Borrower or the Administrative
\n Agent or to change the jurisdiction of its Applicable Lending Office or
\n to contest any tax imposed if the making of such a filing or change or
\n contesting such tax would avoid the need for or reduce the amount of
\n any such additional amounts that may thereafter accrue and would not,
\n in the sole determination of such Lender, be otherwise disadvantageous
\n to such Lender.<\/p>\n
ARTICLE V<\/p>\n
CAPITAL ADEQUACY<\/p>\n
Section 5.01 Additional Costs<\/p>\n
(a) Eurodollar Regulations, etc. The Borrower shall pay
\n directly to each Lender from time to time such amounts as such Lender
\n may determine to be necessary to compensate such Lender for any costs
\n which it determines are attributable to its making or maintaining of
\n any Eurodollar Loans or issuing or participating in Letters of Credit
\n hereunder or its obligation to make any Eurodollar Loans or issue or
\n participate in any Letters of Credit hereunder, or any reduction in any
\n amount receivable by such Lender hereunder in respect of any of such
\n Eurodollar Loans, Letters of Credit or such obligation (such increases
\n in costs and reductions in amounts receivable being herein called
\n “Additional Costs”), resulting from any Regulatory Change which: (i)
\n changes the basis of taxation of any amounts payable to such Lender
\n under this Agreement or any Note in respect of any of such Eurodollar
\n Loans or Letters of Credit (other than taxes imposed on the overall net
\n income of such Lender or of its Applicable Lending Office for any of
\n such Eurodollar Loans by the jurisdiction in which such Lender has its
\n principal office or Applicable Lending Office); or (ii) imposes or
\n modifies any reserve, special deposit, minimum capital, capital ratio
\n or similar requirements relating to any extensions of credit or other
\n assets of, or any deposits with or other liabilities of such Lender, or
\n the Commitment or Loans of such Lender or the Eurodollar interbank
\n market; or (iii) imposes any other condition affecting this Agreement
\n or any Note (or any of such extensions of credit or liabilities) or
\n such Lender’s Commitment or Loans. Each Lender will notify the
\n Administrative Agent and the Borrower of any event occurring after the
\n Closing Date which will entitle such Lender to compensation pursuant to
\n this Section 5.01(a) as promptly as practicable after it obtains
\n knowledge thereof and determines to request such<\/p>\n
-30-
\n 37<\/p>\n
compensation, and will designate a different Applicable Lending Office
\n for the Loans of such Lender affected by such event if such designation
\n will avoid the need for, or reduce the amount of, such compensation and
\n will not, in the sole opinion of such Lender, be disadvantageous to
\n such Lender, provided that such Lender shall have no obligation to so
\n designate an Applicable Lending Office located in the United States. If
\n any Lender requests compensation from the Borrower under this Section
\n 5.01(a), the Borrower may, by notice to such Lender, suspend the
\n obligation of such Lender to make additional Loans of the Type with
\n respect to which such compensation is requested until the Regulatory
\n Change giving rise to such request ceases to be in effect (in which
\n case the provisions of Section 5.04 shall be applicable).<\/p>\n
(b) Regulatory Change. Without limiting the effect of the
\n provisions of Section 5.01(a), in the event that at any time (by reason
\n of any Regulatory Change or any other circumstances arising after the
\n Closing Date affecting (A) any Lender, (B) the Eurodollar interbank
\n market or (C) such Lender’s position in such market), the Eurodollar
\n Adjusted Rate for a particular Interest Period, as determined in good
\n faith by such Lender, will not adequately and fairly reflect the cost
\n to such Lender of funding its Eurodollar Loans, then, if such Lender so
\n elects, by notice to the Borrower and the Administrative Agent, the
\n obligation of such Lender to make additional Eurodollar Loans having
\n such Interest Period shall be suspended until such Regulatory Change or
\n other circumstances ceases to be in effect (in which case the
\n provisions of Section 5.04 shall be applicable).<\/p>\n
(c) Capital Adequacy. Without limiting the effect of the
\n foregoing provisions of this Section 5.01 (but without duplication),
\n the Borrower shall pay directly to any Lender from time to time on
\n request such amounts as such Lender may reasonably determine to be
\n necessary to compensate such Lender or its parent or holding company
\n for any costs which it determines are attributable to the maintenance
\n by such Lender or its parent or holding company (or any Applicable
\n Lending Office), pursuant to any Governmental Requirement following any
\n Regulatory Change, of capital in respect of its Commitment, its Note,
\n its Loans or any interest held by it in any Letter of Credit, such
\n compensation to include, without limitation, an amount equal to any
\n reduction of the rate of return on assets or equity of such Lender or
\n its parent or holding company (or any Applicable Lending Office) to a
\n level below that which such Lender or its parent or holding company (or
\n any Applicable Lending Office) could have achieved but for such
\n Governmental Requirement. Such Lender will notify the Borrower that it
\n is entitled to compensation pursuant to this Section 5.01(c) as
\n promptly as practicable after it determines to request such
\n compensation.<\/p>\n
(d) Compensation Procedure. Any Lender notifying the Borrower
\n of the incurrence of Additional Costs under this Section 5.01 shall in
\n such notice to the Borrower and the Administrative Agent set forth in
\n reasonable detail the basis and amount of its request for compensation.
\n Determinations and allocations by each Lender for purposes of this
\n Section 5.01 of the effect of any Regulatory Change pursuant to Section
\n 5.01(a) or (b), or of the effect of capital maintained pursuant to
\n Section 5.01(c), on its costs or rate of return of maintaining Loans or
\n its obligation to make Loans or issue Letters of Credit, or on amounts
\n receivable by it in respect of Loans or Letters of Credit, and of the
\n amounts required to compensate such Lender under this Section 5.01,
\n shall be conclusive and binding for all purposes, provided that such
\n determinations and allocations are made on a reasonable basis.<\/p>\n
-31-
\n 38<\/p>\n
Any request for additional compensation under this Section 5.01 shall
\n be paid by the Borrower within thirty (30) days of the receipt by the
\n Borrower of the notice described in this Section 5.01(d).<\/p>\n
Section 5.02 Limitation on Eurodollar Loans. Anything herein
\nto the contrary notwithstanding, if, on or prior to the determination of any
\nEurodollar Adjusted Rate for any Interest Period:<\/p>\n
(i) the Administrative Agent determines (which determination
\n shall be conclusive, absent manifest error) that quotations of interest
\n rates for the relevant deposits for such Interest Period referred to in
\n the definition of “Eurodollar Rate” in Section 1.02 are not being
\n provided in the relevant amounts or for the relevant maturities for
\n purposes of determining rates of interest for Eurodollar Loans for such
\n Interest Period as provided herein; or<\/p>\n
(ii) the Administrative Agent determines (which determination
\n shall be conclusive, absent manifest error) that the relevant rates of
\n interest referred to in the definition of “Eurodollar Rate” in Section
\n 1.02 upon the basis of which the rate of interest for Eurodollar Loans
\n for such Interest Period is to be determined are not sufficient to
\n adequately cover the cost to the Lenders of making or maintaining
\n Eurodollar Loans;<\/p>\n
then the Administrative Agent shall give the Borrower prompt notice thereof, and
\nso long as such condition remains in effect, the Lenders shall be under no
\nobligation to make additional Eurodollar Loans having such Interest Period. The
\nforegoing shall not affect the availability of Eurodollar Loans having Interest
\nPeriods for which no such determination has been made.<\/p>\n
Section 5.03 Illegality. Notwithstanding any other provision
\nof this Agreement, in the event that it becomes unlawful for any Lender or its
\nApplicable Lending Office to honor its obligation to make or maintain Eurodollar
\nLoans hereunder, then such Lender shall promptly notify the Borrower thereof and
\nsuch Lender’s obligation to make Eurodollar Loans shall be suspended until such
\ntime as such Lender may again make and maintain Eurodollar Loans (in which case
\nthe provisions of Section 5.04 shall be applicable).<\/p>\n
Section 5.04 Base Rate Loans Pursuant to Sections 5.01, 5.02
\nand 5.03. If the obligation of any Lender to make Eurodollar Loans shall be
\nsuspended pursuant to Sections 5.01, 5.02 or 5.03 (“Affected Loans”), all
\nAffected Loans which would otherwise be made by such Lender shall be made
\ninstead as Base Rate Loans (and, if an event referred to in Section 5.01(b) or
\nSection 5.03 has occurred and such Lender so requests by notice to the Borrower,
\nall Affected Loans of such Lender then outstanding shall be automatically
\nconverted into Base Rate Loans on the last day of the Interest Period for such
\nLoans unless sooner required by applicable law) and, to the extent that Affected
\nLoans are so made as (or converted into) Base Rate Loans, all payments of
\nprincipal which would otherwise be applied to such Lender’s Affected Loans shall
\nbe applied instead to its Base Rate Loans.<\/p>\n
Section 5.05 Compensation. The Borrower shall pay to each
\nLender within thirty (30) days of receipt of written request of such Lender
\n(which request shall set forth, in reasonable<\/p>\n
-32-
\n 39<\/p>\n
detail, the basis for requesting such amounts and which shall be conclusive and
\nbinding for all purposes provided that such determinations are made on a
\nreasonable basis), such amount or amounts as shall compensate it for any loss,
\ncost, expense or liability which such Lender determines are attributable to:<\/p>\n
(i) any payment, prepayment or conversion of a Eurodollar Loan
\n properly made by such Lender or the Borrower for any reason (including,
\n without limitation, the acceleration of the Loans pursuant to Section
\n 10.02) on a date other than the last day of the Interest Period for
\n such Loan; or<\/p>\n
(ii) any failure by the Borrower for any reason (including but
\n not limited to, the failure of any of the conditions precedent
\n specified in Article VI to be satisfied) to borrow, continue or convert
\n a Eurodollar Loan from such Lender on the date for such borrowing,
\n continuation or conversion specified in the relevant notice given
\n pursuant to Section 2.02(c).<\/p>\n
Without limiting the effect of the preceding sentence, such compensation shall
\ninclude an amount equal to the excess, if any, of (i) the amount of interest
\nwhich would have accrued on the principal amount so paid, prepaid or converted
\nor not borrowed for the period from the date of such payment, prepayment or
\nconversion or failure to borrow to the last day of the Interest Period for such
\nLoan (or, in the case of a failure to borrow, the Interest Period for such Loan
\nwhich would have commenced on the date specified for such borrowing) at the
\nEurodollar Adjusted Rate for such Loan provided for herein over (ii) the
\ninterest component of the amount such Lender would have bid in the London
\ninterbank market for Dollar deposits of leading banks in amounts comparable to
\nsuch principal amount and with maturities comparable to such period (as
\nreasonably determined by such Lender).<\/p>\n
Section 5.06 Time Limit, Etc.<\/p>\n
(a) Time Limited. Notwithstanding anything to the contrary
\n contained in Sections 5.01 through 5.05, the Borrower shall not be
\n required to reimburse or pay any costs or expenses to any Lender as
\n required by such sections which have accrued more than 270 days prior
\n to such Lender’s giving notice to the Borrower that such Lender has
\n suffered or incurred such costs or expenses.<\/p>\n
(b) Non-Discriminatory Basis. None of the Lenders shall be
\n permitted to pass through to the Borrower costs and expenses under
\n Sections 5.01 through 5.05 which are not also passed through by such
\n Lender to other customers of such Lender similarly situated when such
\n customer is subject to documents containing similar provisions as those
\n contained in such Sections.<\/p>\n
Section 5.07 Replacement Lenders<\/p>\n
(a) Terminated Lenders. If any Lender has (i) required the
\n Borrower to make payments for Taxes under Section 4.06 or (ii) has
\n notified the Borrower and the Administrative Agent of its incurring
\n Additional Costs under Section 5.01(a) or other compensation under
\n Sections 5.01(b) or (c) or (iii) asserts that it is illegal for it to
\n make and<\/p>\n
-33-
\n 40<\/p>\n
maintain Eurodollar Loans when all other Lenders have not also made
\n such assertion, then the Borrower may, unless such Lender has notified
\n the Borrower and the Administrative Agent that the circumstances giving
\n rise to such notice no longer apply, terminate, in whole but not in
\n part, the Commitment of any Lender (the “Terminated Lender”) at any
\n time upon five (5) Business Days’ prior written notice to the
\n Terminated Lender and the Administrative Agent (such notice referred to
\n herein as a “Notice of Termination”).<\/p>\n
(b) Replacement Lenders. In order to effect the termination of
\n the Commitment of the Terminated Lender, the Borrower shall: (i) obtain
\n an agreement with one or more Lenders to increase their respective
\n Commitment and\/or (ii) request any one or more other banking
\n institutions to become parties to this Agreement in place and instead
\n of such Terminated Lender and agree to accept a Commitment provided,
\n however that such one or more other banking institutions are reasonably
\n acceptable to the Administrative Agent and become parties by executing
\n an Assignment (the Lenders or other banking institutions that agree to
\n accept in whole or in part the Commitment of the Terminated Lender
\n being referred to herein as the “Replacement Lenders”), such that the
\n aggregate increased and\/or accepted Commitment of the Replacement
\n Lenders under clauses (i) and (ii) above equal the Commitment of the
\n Terminated Lender.<\/p>\n
(c) Content of Notice of Termination. The Notice of
\n Termination shall include the name of the Terminated Lender, the date
\n the termination will occur (the “Lender Termination Date”), and the
\n Replacement Lender or Replacement Lenders to which the Terminated
\n Lender will assign its Commitment and, if there will be more than one
\n Replacement Lender, the portion of the Terminated Lender’s Commitment
\n to be assigned to each Replacement Lender.<\/p>\n
(d) Effecting Termination. On the Lender Termination Date, (i)
\n the Terminated Lender shall by execution and delivery of an Assignment
\n assign its Commitment to the Replacement Lender or Replacement Lenders
\n indicated in the Notice of Termination and shall assign to the
\n Replacement Lender or Replacement Lenders each of its Loans (if any)
\n then outstanding and participation interests in Letters of Credit (if
\n any) then outstanding, (ii) the Terminated Lender shall endorse its
\n Notes, payable without recourse, representation or warranty to the
\n order of the Replacement Lender or Replacement Lenders, (iii) the
\n Replacement Lender or Replacement Lenders shall purchase the Notes held
\n by the Terminated Lender at a price equal to the unpaid principal
\n amount thereof plus interest and facility and other fees accrued and
\n unpaid to the Lender Termination Date, and (iv) the Replacement Lender
\n or Replacement Lenders will thereupon succeed to and be substituted in
\n all respects for the Terminated Lender with like effect as if becoming
\n a Lender pursuant to the terms of Section 12.06(b), and the Terminated
\n Lender will have the rights and benefits of an assignor under Section
\n 12.06(b). To the extent not in conflict, the terms of Section 12.06(b)
\n shall supplement the provisions of this Section 5.07(d). For each
\n assignment made under this Section 5.07, the Replacement Lender shall
\n pay to the Administrative Agent the processing fee provided for in
\n Section 12.06(b). The Borrower will be responsible for the payment of
\n any breakage costs associated with termination of the Terminated
\n Lender, as set forth in Section 5.05.<\/p>\n
-34-
\n 41<\/p>\n
ARTICLE VI<\/p>\n
CONDITIONS PRECEDENT<\/p>\n
Section 6.01 Initial Funding<\/p>\n
The obligation of the Lenders to make the initial Funding is
\nsubject to the receipt by the Administrative Agent and the Lenders of all fees
\npayable in connection with the transactions under this Agreement on or before
\nthe Closing Date and the receipt by the Administrative Agent of the following
\ndocuments (in sufficient original counterparts, other than the Notes, for each
\nLender) and satisfaction of the other conditions provided in this Section 6.01,
\neach of which shall be reasonably satisfactory to the Administrative Agent in
\nform and substance:<\/p>\n
(a) A certificate of the Secretary or an Assistant Secretary
\n of the Borrower setting forth (i) resolutions of its board of directors
\n with respect to the authorization of the Borrower to execute and
\n deliver the Loan Documents to which it is a party and to enter into the
\n transactions contemplated in those documents, (ii) the officers of the
\n Borrower (y) who are authorized to sign the Loan Documents to which
\n Borrower is a party and (z) who will, until replaced by another officer
\n or officers duly authorized for that purpose, act as its representative
\n for the purposes of signing documents and giving notices and other
\n communications in connection with this Agreement and the transactions
\n contemplated hereby, (iii) specimen signatures of the authorized
\n officers, and (iv) the articles or certificate of incorporation and
\n bylaws of the Borrower, certified as being true and complete. The
\n Administrative Agent and the Lenders may conclusively rely on such
\n certificate until the Administrative Agent receives notice in writing
\n from the Borrower to the contrary.<\/p>\n
(b) A certificate of the Secretary or an Assistant Secretary
\n of each Guarantor setting forth (i) resolutions of its board of
\n directors with respect to the authorization of such Guarantor to
\n execute and deliver the Loan Documents to which it is a party and to
\n enter into the transactions contemplated in those documents, (ii) the
\n officers of such Guarantor (y) who are authorized to sign the Loan
\n Documents to which such Guarantor is a party and (z) who will, until
\n replaced by another officer or officers duly authorized for that
\n purpose, act as its representative for the purposes of signing
\n documents and giving notices and other communications in connection
\n with this Agreement and the transactions contemplated hereby, (iii)
\n specimen signatures of the authorized officers, and (iv) the articles
\n or certificate of incorporation and bylaws of such Guarantor, certified
\n as being true and complete. The Administrative Agent and the Lenders
\n may conclusively rely on such certificates until they receive notice in
\n writing from any Guarantor to the contrary.<\/p>\n
(c) Certificates of the appropriate state agencies with
\n respect to the existence, qualification and good standing of the
\n Borrower and each Guarantor.<\/p>\n
(d) A compliance certificate which shall be substantially in
\n the form Exhibit C, duly and properly executed by a Responsible Officer
\n and dated as of the date of the Initial Funding.<\/p>\n
(e) The Notes, duly completed and executed.<\/p>\n
-35-
\n 42<\/p>\n
(f) The Guaranty Agreement, duly completed and executed.<\/p>\n
(g) An opinion of Vinson & Elkins L.L.P., counsel to the
\n Borrower and the Guarantors, in form and substance satisfactory to the
\n Administrative Agent, as to such matters incident to the transactions
\n herein contemplated as the Administrative Agent may reasonably request.<\/p>\n
(h) A certificate of insurance coverage of the Borrower
\n evidencing that the Borrower is carrying insurance in accordance with
\n Section 7.19.<\/p>\n
(i) The Administrative Agent shall have been furnished with
\n appropriate UCC search certificates reflecting no prior Liens.<\/p>\n
(j) Contemporaneous payment in full of the Prior Debt and
\n termination of all commitments and other obligations of the
\n administrative agent and lenders under the Prior Credit Agreement.<\/p>\n
(k) Such other documents as the Administrative Agent or any
\n Lender or special counsel to the Administrative Agent may reasonably
\n request.<\/p>\n
Section 6.02 Initial and Subsequent Loans and Letters of
\nCredit. The obligation of the Lenders to make Loans to the Borrower upon the
\noccasion of each borrowing hereunder and to issue, renew, extend or reissue
\nLetters of Credit for the account of the Borrower (including the Initial
\nFunding) is subject to the further conditions precedent that, as of the date of
\nsuch Loans and after giving effect thereto:<\/p>\n
(a) no Default shall have occurred and be continuing;<\/p>\n
(b) no Material Adverse Effect shall have occurred; and<\/p>\n
(c) the representations and warranties made by the Borrower in Article
\nVII and by the Borrower or any Guarantor in any other Loan Document shall be
\ntrue on and as of the date of the making of such Loans or issuance, renewal,
\nextension or reissuance of a Letter of Credit with the same force and effect as
\nif made on and as of such date and following such new borrowing, except to the
\nextent (i) such representations and warranties are modified to give effect to
\nthe transactions contemplated hereby or expressly limited to an earlier date or
\n(ii) the Majority Lenders may expressly consent in writing to the contrary.<\/p>\n
Each request for a borrowing or issuance, renewal, extension or
\nreissuance of a Letter of Credit by the Borrower hereunder shall constitute a
\ncertification by the Borrower to the effect set forth in Section 6.02(c) (both
\nas of the date of such notice and, unless the Borrower otherwise notifies the
\nAdministrative Agent prior to the date of and immediately following such
\nborrowing or issuance, renewal, extension or reissuance of a Letter of Credit as
\nof the date thereof).<\/p>\n
Section 6.03 Conditions Precedent for the Benefit of Lenders.
\nAll conditions precedent to the obligations of the Lenders to make any Loan are
\nimposed hereby solely for the benefit of the Lenders, and no other Person may
\nrequire satisfaction of any such condition precedent<\/p>\n
-36-
\n 43<\/p>\n
or be entitled to assume that the Lenders will refuse to make any Loan in the
\nabsence of strict compliance with such conditions precedent.<\/p>\n
Section 6.04 No Waiver. No waiver of any condition precedent
\nshall preclude the Administrative Agent or the Lenders from requiring such
\ncondition to be met prior to making any subsequent Loan or preclude the Lenders
\nfrom thereafter declaring that the failure of the Borrower to satisfy such
\ncondition precedent constitutes a Default.<\/p>\n
ARTICLE VII<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
The Borrower represents and warrants to the Administrative Agent and
\nthe Lenders that (each representation and warranty herein is given as of the
\nClosing Date and shall be deemed repeated and reaffirmed the dates of each
\nborrowing and issuance, renewal, extension or reissuance of a Letter of Credit
\nas provided in Section 6.02):<\/p>\n
Section 7.01 Corporate Existence. Each of the Borrower and
\neach Subsidiary: (i) is an organization duly organized, legally existing and in
\ngood standing under the laws of the jurisdiction of its organization; (ii) has
\nall requisite power, and has all material governmental licenses, authorizations,
\nconsents and approvals necessary to own its assets and carry on its business as
\nnow being or as proposed to be conducted; and (iii) is qualified to do business
\nin all jurisdictions in which the nature of the business conducted by it makes
\nsuch qualification necessary and where failure so to qualify could reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
Section 7.02 Financial Condition. The audited consolidated
\nbalance sheet of the Borrower and its Consolidated Subsidiaries as at December
\n31, 1999 and the related consolidated statement of income, stockholders’ equity
\nand cash flow of the Borrower and its Consolidated Subsidiaries for the fiscal
\nyear ended on said date, with the opinion thereon of Arthur Andersen LLP
\nheretofore furnished to each of the Lenders and the unaudited consolidated
\nbalance sheet of the Borrower and its Consolidated Subsidiaries as at March 31,
\n2000 and their related consolidated statements of income, stockholders’ equity
\nand cash flow of the Borrower and its Consolidated Subsidiaries for the three
\nmonth period ended on such date heretofore furnished to the Administrative
\nAgent, are complete and correct and fairly present, in all material respects,
\nthe consolidated financial condition of the Borrower and its Consolidated
\nSubsidiaries as at said dates and the results of its operations for the fiscal
\nyear and the three month period on said dates, all in accordance with GAAP, as
\napplied on a consistent basis (subject, in the case of the interim financial
\nstatements, to normal year-end adjustments). Neither the Borrower nor any
\nConsolidated Subsidiary has on the Closing Date any material Debt, contingent
\nliabilities, liabilities for taxes, unusual forward or long-term commitments or
\nunrealized or anticipated losses from any unfavorable commitments, except as
\nreferred to or reflected or provided for in the Financial Statements or
\nSchedule 7.02. Since December 31, 1999, there has been no change or event which
\ncould reasonably be expected to have a Material Adverse Effect. Since the date
\nof the Financial Statements, neither the business nor the Properties of the
\nBorrower or any Subsidiary have been materially and adversely affected as a
\nresult of any fire, explosion, earthquake, flood, drought, windstorm, accident,
\nstrike or other labor disturbance, embargo, requisition or taking of Property or
\ncancellation of contracts, permits or<\/p>\n
-37-
\n 44<\/p>\n
concessions by any Governmental Authority, riot, activities of armed forces or
\nacts of God or of any public enemy.<\/p>\n
Section 7.03 Litigation. At the Closing Date, there is no
\nlitigation, legal, administrative or arbitral proceeding, investigation or other
\naction of any nature pending or, to the knowledge of the Borrower threatened
\nagainst or affecting the Borrower or any Subsidiary which involves the
\npossibility of any judgment or liability against the Borrower or any Subsidiary
\nnot fully covered by insurance (except for normal deductibles), and which could
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
Section 7.04 No Breach. Neither the execution and delivery of
\nthe Loan Documents, nor compliance with the terms and provisions hereof will
\nconflict with or result in a breach of, or require any consent which has not
\nbeen obtained as of the Closing Date under, the respective charter or by-laws of
\nthe Borrower or any Subsidiary, or any Governmental Requirement or any material
\nagreement or instrument to which the Borrower or any Subsidiary is a party or by
\nwhich it is bound or to which it or its Properties are subject, or constitute a
\ndefault under any such agreement or instrument, or result in the creation or
\nimposition of any Lien upon any of the revenues or assets of the Borrower or any
\nSubsidiary pursuant to the terms of any such agreement or instrument other than
\nthe Liens created by the Loan Documents.<\/p>\n
Section 7.05 Authority. The Borrower and each Guarantor have
\nall necessary power and authority to execute, deliver and perform its
\nobligations under the Loan Documents to which it is a party; and the execution,
\ndelivery and performance by the Borrower and each Guarantor of the Loan
\nDocuments to which it is a party, have been duly authorized by all necessary
\naction on its part; and the Loan Documents constitute the legal, valid and
\nbinding obligations of the Borrower and each Guarantor party thereto,
\nenforceable in accordance with their terms, except to the extent that
\nenforcement may be subject to any applicable bankruptcy, insolvency or similar
\nlaws generally affecting the enforcement of creditors’ rights.<\/p>\n
Section 7.06 Approvals. No authorizations, approvals or
\nconsents of, and no filings or registrations with, any Governmental Authority
\nare necessary for the execution, delivery or performance by the Borrower or any
\nGuarantor of the Loan Documents or for the validity or enforceability thereof.<\/p>\n
Section 7.07 Use of Loans. The proceeds of the Loans shall be
\nused to repay in full the Prior Debt and for general corporate purposes. The
\nBorrower is not engaged principally, or as one of its important activities, in
\nthe business of extending credit for the purpose, whether immediate, incidental
\nor ultimate, of buying or carrying margin stock (within the meaning of
\nRegulation T, U or X of the Board of Governors of the Federal Reserve System)
\nand no part of the proceeds of any Loan hereunder will be used to buy or carry
\nany margin stock.<\/p>\n
Section 7.08 ERISA. Except as could not reasonably be expected
\nto have a Material Adverse Effect (or with respect to clauses (a), (b) or (e)
\nwhere the failure to take such actions could not reasonably be expected to have
\na Material Adverse Effect):<\/p>\n
(a) The Borrower, each Subsidiary and each ERISA Affiliate
\n have complied with ERISA and, where applicable, the Code regarding each
\n Plan.<\/p>\n
-38-
\n 45<\/p>\n
(b) Each Plan is, and has been, maintained in substantial
\n compliance with ERISA and, where applicable, the Code.<\/p>\n
(c) No act, omission or transaction has occurred which could
\n result in imposition on the Borrower, any Subsidiary or any ERISA
\n Affiliate (whether directly or indirectly) of (i) either a civil
\n penalty assessed pursuant to section 502(c), (i) or (1) of ERISA or a
\n tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii)
\n breach of fiduciary duty liability damages under section 409 of ERISA.<\/p>\n
(d) No Plan (other than a defined contribution plan) or any
\n trust created under any such Plan has been terminated since September
\n 2, 1974. No liability to the PBGC (other than for the payment of
\n current premiums which are not past due) by the Borrower, any
\n Subsidiary or any ERISA Affiliate has been or is expected by the
\n Borrower, any Subsidiary or any ERISA Affiliate to be incurred with
\n respect to any Plan. No ERISA Event with respect to any Plan has
\n occurred.<\/p>\n
(e) Full payment when due has been made of all amounts which
\n the Borrower, any Subsidiary or any ERISA Affiliate is required under
\n the terms of each Plan or applicable law to have paid as contributions
\n to such Plan, and no accumulated funding deficiency (as defined in
\n section 302 of ERISA and section 412 of the Code), whether or not
\n waived, exists with respect to any Plan.<\/p>\n
(f) The actuarial present value of the benefit liabilities
\n under each Plan which is subject to Title IV of ERISA does not, as of
\n the end of the Borrower’s most recently ended fiscal year, exceed the
\n current value of the assets (computed on a plan termination basis in
\n accordance with Title IV of ERISA) of such Plan allocable to such
\n benefit liabilities. The term “actuarial present value of the benefit
\n liabilities” shall have the meaning specified in section 4041 of ERISA.<\/p>\n
(g) None of the Borrower, any Subsidiary or any ERISA
\n Affiliate sponsors, maintains, or contributes to an employee welfare
\n benefit plan, as defined in section 3(1) of ERISA, including, without
\n limitation, any such plan maintained to provide benefits to former
\n employees of such entities, that may not be terminated by the Borrower,
\n a Subsidiary or any ERISA Affiliate in its sole discretion at any time
\n without any material liability.<\/p>\n
(h) None of the Borrower, any Subsidiary or any ERISA
\n Affiliate sponsors, maintains or contributes to, or has at any time in
\n the preceding six calendar years, sponsored, maintained or contributed
\n to, any Multiemployer Plan.<\/p>\n
(i) None of the Borrower, any Subsidiary or any ERISA
\n Affiliate is required to provide security under section 401(a)(29) of
\n the Code due to a Plan amendment that results in an increase in current
\n liability for the Plan.<\/p>\n
Section 7.09 Taxes. Except as set out in Schedule 7.09, each
\nof the Borrower and its Subsidiaries has filed all United States Federal income
\ntax returns and all other tax returns which are required to be filed by them and
\nhave paid all material taxes due pursuant to such returns or pursuant to any
\nassessment received by the Borrower or any Subsidiary. The charges, accruals and<\/p>\n
-39-
\n 46<\/p>\n
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
\nand other governmental charges are, in the opinion of the Borrower, adequate. No
\ntax lien has been filed and, to the knowledge of the Borrower, no claim is
\nbeing asserted with respect to any such tax, fee or other charge.<\/p>\n
Section 7.10 Titles, etc.<\/p>\n
(a) Except as set out in Schedule 7.10, each of the Borrower
\n and its Subsidiaries has good and defensible title to its material
\n (individually or in the aggregate) Properties, free and clear of all
\n Liens, except Liens permitted by Section 9.02. Except as set forth in
\n Schedule 7.10, after giving full effect to the Excepted Liens, the
\n Borrower owns the net interests in production attributable to the
\n Hydrocarbon Interests reflected in the most recently delivered Reserve
\n Report and the ownership of such Properties shall not in any material
\n respect obligate the Borrower to bear the costs and expenses relating
\n to the maintenance, development and operations of each such Property in
\n an amount in excess of the working interest of each Property set forth
\n in the most recently delivered Reserve Report. All information
\n contained in the most recently delivered Reserve Report is true and
\n correct in all material respects as of the date thereof.<\/p>\n
(b) All leases and agreements necessary for the conduct of the
\n business of the Borrower and its Subsidiaries are valid and subsisting,
\n in full force and effect and there exists no default or event or
\n circumstance which with the giving of notice or the passage of time or
\n both would give rise to a default under any such lease or leases, which
\n would affect in any material respect the conduct of the business of the
\n Borrower and its Subsidiaries.<\/p>\n
(c) The rights, Properties and other assets presently owned,
\n leased or licensed by the Borrower and its Subsidiaries including,
\n without limitation, all easements and rights of way, include all
\n rights, Properties and other assets necessary to permit the Borrower
\n and its Subsidiaries to conduct their business in all material respects
\n in the same manner as its business has been conducted prior to the
\n Closing Date.<\/p>\n
(d) All of the assets and Properties of the Borrower and its
\n Subsidiaries which are reasonably necessary for the operation of its
\n business are in good working condition and are maintained in accordance
\n with prudent business standards.<\/p>\n
Section 7.11 No Material Misstatements. No written
\ninformation, statement, exhibit, certificate, document or report furnished to
\nthe Administrative Agent and the Lenders (or any of them) by the Borrower or
\nany Subsidiary in connection with the negotiation of this Agreement contained
\nany material misstatement of fact or omitted to state a material fact or any
\nfact necessary to make the statement contained therein not materially
\nmisleading in the light of the circumstances in which made and with respect to
\nthe Borrower and its Subsidiaries taken as a whole. There is no fact peculiar
\nto the Borrower or any Subsidiary which could reasonably be expected to have a
\nMaterial Adverse Effect or in the future could reasonably be likely to have (so
\nfar as the Borrower can now foresee) a Material Adverse Effect and which has
\nnot been set forth in this Agreement or the other documents, certificates and
\nstatements furnished to the Administrative Agent by or on behalf of the
\nBorrower or any Subsidiary prior to, or on, the Closing Date in connection with
\nthe transactions contemplated hereby.<\/p>\n
-40-
\n 47<\/p>\n
Section 7.12 Investment Company Act. Neither the Borrower nor
\nany Subsidiary is an “investment company” or a company “controlled” by an
\n“investment company,” within the meaning of the Investment Company Act of 1940,
\nas amended.<\/p>\n
Section 7.13 Public Utility Holding Company Act. Neither the
\nBorrower nor any Subsidiary is a “holding company”, or a “subsidiary company” of
\na “holding company,” or an “affiliate” of a “holding company” or of a
\n“subsidiary company” of a “holding company,” or a “public utility” within the
\nmeaning of the Public Utility Holding Company Act of 1935, as amended.<\/p>\n
Section 7.14 Subsidiaries. Except as set forth on Schedule
\n7.14 or as otherwise disclosed in writing to the Administrative Agent, the
\nBorrower has no Subsidiaries.<\/p>\n
Section 7.15 Location of Business and Offices. The Borrower’s
\nprincipal place of business and chief executive offices are located at the
\naddress stated on the signature page of this Agreement or as otherwise disclosed
\nin writing to the Administrative Agent. The principal place of business and
\nchief executive office of each Subsidiary are located at the addresses stated
\nSchedule 7.14 or as otherwise disclosed in writing to the Administrative Agent.<\/p>\n
Section 7.16 Defaults. Neither the Borrower nor any Subsidiary
\nis in default nor has any event or circumstance occurred which, but for the
\nexpiration of any applicable grace period or the giving of notice, or both,
\nwould constitute a default under any material agreement or instrument to which
\nthe Borrower or any Subsidiary is a party or by which the Borrower or any
\nSubsidiary is bound which default could reasonably be expected to have a
\nMaterial Adverse Effect. No Default hereunder has occurred and is continuing.<\/p>\n
Section 7.17 Environmental Matters. Except as could not
\nreasonably be expected to have a Material Adverse Effect (or with respect to
\n(c), (d) and (e) below, where the failure to take such actions would not have a
\nMaterial Adverse Effect):<\/p>\n
(a) Neither any Property of the Borrower or any Subsidiary nor
\n the operations conducted thereon violate any order or requirement of
\n any court or Governmental Authority or any Environmental Laws;<\/p>\n
(b) Without limitation of clause (a) above, no Property of the
\n Borrower or any Subsidiary nor the operations currently conducted
\n thereon or, to the best knowledge of the Borrower, by any prior owner
\n or operator of such Property or operation, are in violation of or
\n subject to any existing, pending or threatened action, suit,
\n investigation, inquiry or proceeding by or before any court or
\n Governmental Authority or to any remedial obligations under
\n Environmental Laws;<\/p>\n
(c) All notices, permits, licenses or similar authorizations
\n if any, required to be obtained or filed in connection with the
\n operation or use of any and all Property of the Borrower and each
\n Subsidiary, including without limitation past or present treatment,
\n storage, disposal or release of a hazardous substance or solid waste
\n into the environment, have been duly obtained or filed, and the
\n Borrower and each Subsidiary are in compliance with the terms and
\n conditions of all such notices, permits, licenses and similar
\n authorizations;<\/p>\n
-41-
\n 48<\/p>\n
(d) All hazardous substances, solid waste, and oil and gas
\n exploration and production wastes, if any, generated at any and all
\n Property of the Borrower or any Subsidiary have in the past been
\n transported, treated and disposed of in accordance with Environmental
\n Laws and so as not to pose an imminent and substantial endangerment to
\n public health or welfare or the environment, and, to the best knowledge
\n of the Borrower, all such transport carriers and treatment and disposal
\n facilities have been and are operating in compliance with Environmental
\n Laws and so as not to pose an imminent and substantial endangerment to
\n public health or welfare or the environment, and are not the subject of
\n any existing, pending or threatened action, investigation or inquiry by
\n any Governmental Authority in connection with any Environmental Laws;<\/p>\n
(e) The Borrower has taken all steps reasonably necessary to
\n determine and has determined that no hazardous substances, solid waste,
\n or oil and gas exploration and production wastes, have been disposed of
\n or otherwise released and there has been no threatened release of any
\n hazardous substances on or to any Property of the Borrower or any
\n Subsidiary except in compliance with Environmental Laws and so as not
\n to pose an imminent and substantial endangerment to public health or
\n welfare or the environment;<\/p>\n
(f) To the extent applicable, all Property of the Borrower and
\n each Subsidiary currently satisfies all design, operation, and
\n equipment requirements imposed by the OPA or scheduled as of the
\n Closing Date to be imposed by OPA during the term of this Agreement,
\n and the Borrower does not have any reason to believe that such
\n Property, to the extent subject to OPA, will not be able to maintain
\n compliance with the OPA requirements during the term of this Agreement;
\n and<\/p>\n
(g) Neither the Borrower nor any Subsidiary has any known
\n contingent liability in connection with any release or threatened
\n release of any oil, hazardous substance or solid waste into the
\n environment.<\/p>\n
Section 7.18 Compliance with the Law. Neither the Borrower nor
\nany Subsidiary has violated any Governmental Requirement or failed to obtain any
\nlicense, permit, franchise or other governmental authorization necessary for the
\nownership of any of its Properties or the conduct of its business, which
\nviolation or failure could reasonably be expected to have (in the event such
\nviolation or failure were asserted by any Person through appropriate action) a
\nMaterial Adverse Effect. Except for such acts or failures to act as could not
\nreasonably be expected to have a Material Adverse Effect, the Oil and Gas
\nProperties (and properties unitized therewith) have been maintained, operated
\nand developed in a good and workmanlike manner and in conformity with all
\napplicable laws and all rules, regulations and orders of all duly constituted
\nauthorities having jurisdiction and in conformity with the provisions of all
\nleases, subleases or other contracts comprising a part of the Hydrocarbon
\nInterests and other contracts and agreements forming a part of the Oil and Gas
\nProperties.<\/p>\n
Section 7.19 Insurance. Schedule 7.19 attached hereto contains
\nan accurate and complete description of all material policies of fire,
\nliability, workmen’s compensation and other forms of insurance owned or held by
\nthe Borrower and each Subsidiary. All such policies are in full force and
\neffect, all premiums with respect thereto covering all periods up to and
\nincluding the date of the closing and through the respective dates set forth in
\nSchedule 7.19 have been paid, and no notice of cancellation or termination has
\nbeen received with respect to any such policy. Such policies are<\/p>\n
-42-
\n 49<\/p>\n
sufficient for compliance with all requirements of law and of all agreements to
\nwhich the Borrower or any Subsidiary is a party; are valid, outstanding and
\nenforceable policies; provide adequate insurance coverage in at least such
\namounts and against at least such risks (but including in any event public
\nliability) as are usually insured against in the same general area by companies
\nengaged in the same or a similar business for the assets and operations of the
\nBorrower and each Subsidiary.<\/p>\n
Section 7.20 Hedging Agreements Schedule 7.20 sets forth, as
\nof the Closing Date, a true and complete list of all Hedging Agreements
\n(including commodity price swap agreements, forward agreements or contracts of
\nsale which provide for prepayment for deferred shipment or delivery of oil, gas
\nor other commodities) of the Borrower and each Subsidiary, the material terms
\nthereof (including the type, term, effective date, termination date and notional
\namounts or volumes), the net mark to market value thereof, all credit support
\nagreements relating thereto (including any margin required or supplied), and the
\ncounter party to each such agreement.<\/p>\n
Section 7.21 Restriction on Liens Except for (i) the Wildhorse
\nLimited Liability Company Agreement and (ii) any industrial development bonds,
\npurchase money mortgages or capital leases permitted by Section 9.01 (in which
\ncases, any prohibition or limitation shall only be effective against the assets
\nfinance thereby), neither the Borrower nor any of its Subsidiaries is a party to
\nany agreement or arrangement (other than this Agreement), or subject to any
\norder, judgment, writ or decree, which either restricts or purports to restrict
\nits ability to grant Liens to the Administrative Agent and the Lenders on or in
\nrespect of their respective assets or Properties.<\/p>\n
Section 7.22 Material Agreements Set forth on Schedule 7.22
\nhereto is a complete and correct list of all material agreements, leases,
\nindentures, purchase agreements, obligations in respect of letters of credit,
\nguarantees, joint venture agreements, and other instruments in effect or to be
\nin effect as of the Closing Date (other than Hedging Agreements) providing for,
\nevidencing, securing or otherwise relating to any Debt of the Borrower or any of
\nits Subsidiaries.<\/p>\n
ARTICLE VIII<\/p>\n
AFFIRMATIVE COVENANTS<\/p>\n
The Borrower covenants and agrees that, so long as any of the
\nCommitments are in effect and until payment in full of all Loans hereunder, all
\ninterest thereon and all other amounts payable by the Borrower hereunder:<\/p>\n
Section 8.01 Reporting Requirements The Borrower shall
\ndeliver, or shall cause to be delivered, to the Administrative Agent with
\nsufficient copies of each for the Lenders:<\/p>\n
(a) Annual Financial Statements As soon as available and in
\n any event within 90 days after the end of each fiscal year of the
\n Borrower, the audited consolidated statements of income, stockholders’
\n equity, changes in financial position and cash flows of the Borrower
\n and its Consolidated Subsidiaries for such fiscal year, and the related
\n consolidated balance sheets of the Borrower and its Consolidated
\n Subsidiaries as at the end of such fiscal year, and setting forth in
\n each case in comparative form the corresponding figures for the
\n preceding fiscal year, and accompanied by the related opinion of
\n independent public accountants of<\/p>\n
-43-
\n 50<\/p>\n
recognized national standing reasonably acceptable to the
\n Administrative Agent which opinion shall state that said financial
\n statements fairly present, in all material respects, the consolidated
\n financial condition and results of operations of the Borrower and its
\n Consolidated Subsidiaries as at the end of, and for, such fiscal year
\n and that such financial statements have been prepared in accordance
\n with GAAP, except for such changes in such principles with which the
\n independent public accountants shall have concurred and such
\n opinion shall not contain a “going concern” or like qualification or
\n exception.<\/p>\n
(b) Quarterly Financial Statements As soon as available and in
\n any event within 45 days after the end of each of the first three
\n fiscal quarterly periods of each fiscal year of the Borrower,
\n consolidated statements of income, stockholders’ equity, changes in
\n financial position and cash flows of the Borrower and its Consolidated
\n Subsidiaries for such period and for the period from the beginning of
\n the respective fiscal year to the end of such period, and the related
\n consolidated balance sheets as at the end of such period, and setting
\n forth in each case in comparative form the corresponding figures for
\n the corresponding period in the preceding fiscal year, accompanied by
\n the certificate of a Responsible Officer, which certificate shall state
\n that said financial statements fairly present, in all material
\n respects, the consolidated financial condition and results of
\n operations of the Borrower and its Consolidated Subsidiaries in
\n accordance with GAAP, as at the end of, and for, such period (subject
\n to normal year-end audit adjustments).<\/p>\n
(c) Notice of Default, Etc. Promptly after the Borrower knows
\n that any Default or any Material Adverse Effect has occurred, a notice
\n of such Default or Material Adverse Effect, describing the same in
\n reasonable detail and the action the Borrower proposes to take with
\n respect thereto.<\/p>\n
(d) Other Accounting Reports Promptly upon receipt thereof, a
\n copy of each other report or letter submitted to the Borrower or any
\n Subsidiary by independent accountants in connection with any annual,
\n interim or special audit made by them of the books of the Borrower and
\n its Subsidiaries, and a copy of any response by the Borrower or any
\n Subsidiary of the Borrower, or the Board of Directors of the Borrower
\n or any Subsidiary of the Borrower, to such letter or report.<\/p>\n
(e) SEC Filings, Etc. Promptly upon its becoming available,
\n each financial statement, report, notice or proxy statement sent by the
\n Borrower to stockholders generally and each regular or periodic report
\n and any registration statement, prospectus or written communication
\n (other than transmittal letters) in respect thereof filed by the
\n Borrower with or received by the Borrower in connection therewith from
\n any securities exchange or the SEC or any successor agency.<\/p>\n
(f) Notices Under Other Loan Agreements Promptly after the
\n furnishing thereof, copies of any statement, report or notice furnished
\n to any Person pursuant to the terms of any indenture, loan or credit or
\n other similar agreement, other than this Agreement and not otherwise
\n required to be furnished to the Lenders pursuant to any other provision
\n of this Section 8.01.<\/p>\n
-44-
\n 51<\/p>\n
(g) Gas Imbalances. Concurrently with the delivery of the
\n financial statements required to be delivered pursuant to Sections
\n 8.01(a) and (b), a report in form and substance satisfactory to the
\n Administrative Agent setting forth, on a net basis, all gas imbalances,
\n take or pay or other prepayments with respect to the Borrower’s and any
\n Subsidiaries’ Oil and Gas Properties which would require the Borrower
\n or any Subsidiary to deliver Hydrocarbons produced from such Oil and
\n Gas Properties at some future time without then or thereafter receiving
\n full payment therefor.<\/p>\n
(h) Other Matters. From time to time such other information
\n regarding the business, affairs or financial condition of the Borrower
\n or any Subsidiary (including, without limitation, any Plan or
\n Multiemployer Plan and any reports or other information required to be
\n filed under ERISA) as any Lender or the Administrative Agent may
\n reasonably request.<\/p>\n
The Borrower will furnish to the Administrative Agent, at the time it furnishes
\neach set of financial statements pursuant to paragraph (a) or (b) above, a
\ncompliance certificate substantially in the form of Exhibit C executed by a
\nResponsible Officer (i) certifying as to the matters set forth therein and
\nstating that no Default has occurred and is continuing (or, if any Default has
\noccurred and is continuing, describing the same in reasonable detail), and (ii)
\nsetting forth in reasonable detail the computations necessary to determine
\nwhether the Borrower is in compliance with Sections 9.12, 9.13, and 9.14 as of
\nthe end of the respective fiscal quarter or fiscal year.<\/p>\n
Section 8.02 Litigation. The Borrower shall promptly give to
\nthe Administrative Agent notice of: (i) all legal or arbitral proceedings, and
\nof all proceedings before any Governmental Authority affecting the Borrower or
\nany Subsidiary, except proceedings which, if adversely determined, could not
\nreasonably be expected to have a Material Adverse Effect, and (ii) any
\nlitigation or proceeding against or adversely affecting the Borrower or any
\nSubsidiary in which the amount involved is not covered in full by insurance
\n(subject to normal and customary deductibles and for which the insurer has not
\nassumed the defense), or in which injunctive or similar relief is sought. The
\nBorrower will, and will cause each of its Subsidiaries to, promptly notify the
\nAdministrative Agent and each of the Lenders of any claim, judgment, Lien or
\nother encumbrance affecting any Property of the Borrower or any Subsidiary if
\nthe value of the claim, judgment, Lien, or other encumbrance when aggregated
\nwith all other existing claims, judgment or Liens affecting such Property shall
\nexceed $3,000,000.<\/p>\n
Section 8.03 Maintenance, Etc.<\/p>\n
(a) Generally. The Borrower shall and shall cause each
\n Subsidiary to: preserve and maintain its corporate existence and all of
\n its material rights, privileges and franchises; keep books of record
\n and account in which full, true and correct entries will be made of all
\n dealings or transactions in relation to its business and activities;
\n comply with all Governmental Requirements if failure to comply with any
\n such requirements could reasonably be expected to have a Material
\n Adverse Effect; pay and discharge all taxes, assessments and
\n governmental charges or levies imposed on it or on its income or
\n profits or on any of its Property prior to the date on which penalties
\n attach thereto, except for any such tax, assessment, charge or levy the
\n payment of which is being contested in good faith and by proper
\n proceedings and against which adequate reserves are being maintained;
\n upon reasonable notice, permit representatives of the Administrative
\n Agent or any Lender, during normal business hours, to examine, copy<\/p>\n
-45-
\n 52
\n and make extracts from its books and records, to inspect its
\n Properties, and to discuss its business and affairs with its officers,
\n all to the extent reasonably requested by such Lender or the
\n Administrative Agent (as the case may be); and keep, or cause to be
\n kept, insured by financially sound and reputable insurers all Property
\n of a character usually insured by Persons engaged in the same or
\n similar business similarly situated against loss or damage of the kinds
\n and in the amounts customarily insured against by such Persons and
\n carry such other insurance as is usually carried by such Persons
\n including, without limitation, environmental risk insurance to the
\n extent reasonably available.<\/p>\n
(b) Proof of Insurance. Contemporaneously with the delivery of
\n the financial statements required by Section 8.01(a) to be delivered
\n for each year, upon the request of the Administrative Agent, the
\n Borrower will furnish or cause to be furnished to the Administrative
\n Agent and the Lenders a certificate of insurance coverage from the
\n insurer in form and substance satisfactory to the Administrative Agent
\n and, if requested, will furnish the Administrative Agent and the
\n Lenders copies of the applicable policies.<\/p>\n
(c) Oil and Gas Properties. The Borrower will and will cause
\n each Subsidiary to, at its own expense, (i) do or cause to be done all
\n things reasonably necessary to preserve and keep in good repair,
\n working order and efficiency all of its Oil and Gas Properties and
\n other material Properties, including, without limitation, all
\n equipment, machinery and facilities, and (ii) from time to time, make
\n all the reasonably necessary repairs, renewals and replacements so that
\n at all times the state and condition of its Oil and Gas Properties and
\n other material Properties will be fully preserved and maintained in all
\n material respects, except, in either case of clauses (i) or (ii), to
\n the extent a portion of such Properties is no longer capable of
\n producing Hydrocarbons in economically reasonable amounts. The Borrower
\n will and will cause each Subsidiary to, in all material respects,
\n promptly: (i) pay and discharge, or make reasonable and customary
\n efforts to cause to be paid and discharged, all delay rentals,
\n royalties, expenses and indebtedness accruing under the leases or other
\n agreements affecting or pertaining to its Oil and Gas Properties, (ii)
\n perform or make reasonable and customary efforts to cause to be
\n performed, in accordance with industry standards, the obligations
\n required by each and all of the assignments, deeds, leases, sub-leases,
\n contracts and agreements affecting its interests in its Oil and Gas
\n Properties and other material Properties, (iii) do all other things
\n necessary to keep unimpaired, except for Liens described in Section
\n 9.02, its rights with respect to its Oil and Gas Properties and other
\n material Properties and prevent any forfeiture thereof or a default
\n thereunder, except to the extent a portion of such Properties is no
\n longer capable of producing Hydrocarbons in economically reasonable
\n amounts and except for dispositions permitted by Section 9.15. The
\n Borrower will and will cause each Subsidiary to operate its Oil and Gas
\n Properties and other material Properties or cause or make reasonable
\n and customary efforts to cause such Oil and Gas Properties and other
\n material Properties to be operated in a careful and efficient manner in
\n accordance with the practices of the industry and in compliance with
\n all applicable contracts and agreements and in compliance in all
\n material respects with all Governmental Requirements.<\/p>\n
Section 8.04 Environmental Matters<\/p>\n
(a) Establishment of Procedures The Borrower will and will
\n cause each Subsidiary to establish and implement such procedures as may
\n be reasonably necessary to<\/p>\n
-46-
\n 53<\/p>\n
continuously determine and assure that any failure of the following
\n could not reasonably be expected to have a Material Adverse Effect: (i)
\n all Property of the Borrower and its Subsidiaries and the operations
\n conducted thereon and other activities of the Borrower and its
\n Subsidiaries are in compliance with and do not violate the requirements
\n of any Environmental Laws, (ii) no oil, hazardous substances or solid
\n wastes are disposed of or otherwise released on or to any Property
\n owned by any such party except in compliance with Environmental Laws,
\n (iii) no hazardous substance will be released on or to any such
\n Property in a quantity equal to or exceeding that quantity which
\n requires reporting pursuant to Section 103 of CERCLA, and (iv) no oil,
\n oil and gas exploration and production wastes or hazardous substance is
\n released on or to any such Property so as to pose an imminent and
\n substantial endangerment to public health or welfare or the
\n environment.<\/p>\n
(b) Notice of Action The Borrower will promptly notify the
\n Administrative Agent and the Lenders in writing of any threatened
\n action, investigation or inquiry by any Governmental Authority of which
\n the Borrower has knowledge in connection with any Environmental Laws,
\n excluding routine testing and corrective action.<\/p>\n
(c) Future Acquisitions The Borrower will and will cause each
\n Subsidiary to provide environmental audits and tests in accordance with
\n American Society for Testing and Materials standards as reasonably
\n requested by the Administrative Agent (or as otherwise required to be
\n obtained by the Administrative Agent or the Majority Lenders by any
\n Governmental Authority) in connection with any future acquisitions of
\n Oil and Gas Properties or other material Properties.<\/p>\n
Section 8.05 Further Assurances The Borrower will and will
\ncause each Subsidiary to cure promptly any defects in the creation and issuance
\nof the Notes and the execution and delivery of this Agreement and any other Loan
\nDocument to which it is a party. The Borrower, at its expense, will and will
\ncause each Subsidiary to, promptly execute and deliver to the Administrative
\nAgent all such other documents, agreements and instruments reasonably requested
\nby the Administrative Agent to comply with or accomplish the covenants and
\nagreements of the Borrower or any Subsidiary, as the case may be, in this
\nAgreement and any other Loan Document, or to file any notices or obtain any
\nconsents, all as may be necessary or appropriate in connection therewith.<\/p>\n
Section 8.06 Performance of Obligations The Borrower will pay
\nthe Notes according to the reading, tenor and effect thereof; and the Borrower
\nwill and will cause each Subsidiary to do and perform every act and discharge
\nall of the obligations to be performed and discharged by them under the Loan
\nDocuments at the time or times and in the manner specified.<\/p>\n
Section 8.07 Reserve Reports<\/p>\n
(a) On or before March 1 of each year, commencing March 1,
\n 2001, the Borrower shall furnish to the Administrative Agent, the
\n Co-Agent and the Lenders a Reserve Report. The Reserve Report dated as
\n of December 31 of each year shall be prepared by certified independent
\n petroleum engineers or other independent petroleum consultant(s)
\n reasonably acceptable to the Administrative Agent and the Co-Agent.<\/p>\n
-47-
\n 54<\/p>\n
(b) In the event of an unscheduled redetermination or a
\n redetermination resulting from the Borrowing Base Utilization exceeding
\n 50%, the Borrower shall furnish to the Administrative Agent and the
\n Lenders a Reserve Report with an “as of” date as required by the
\n Administrative Agent and the Co-Agent and prepared by or under the
\n supervision of the chief engineer of the Borrower who shall certify
\n such Reserve Report to be true and accurate and to have been prepared
\n in accordance with the procedures used in the immediately preceding
\n Reserve Report. The Borrower shall provide such Reserve Reports
\n required by this Section 8.07(b) as soon as possible, but in any event
\n no later than 30 days following the receipt of the request by the
\n Administrative Agent.<\/p>\n
(c) With the delivery of each Reserve Report, the Borrower
\n shall provide to the Administrative Agent, the Co-Agent and the
\n Lenders, a certificate from a Responsible Officer certifying that, to
\n the best of his knowledge and in all material respects: (i) the
\n information contained in the Reserve Report and any other information
\n delivered in connection therewith is true and correct, (ii) the
\n Borrower owns good and defensible title to the Oil and Gas Properties
\n evaluated in such Reserve Report and such Properties are free of all
\n Liens except for Liens permitted by Section 9.02 and (iii) the report,
\n in form and substance satisfactory to the Administrative Agent,
\n attached as an exhibit to the certificate, sets forth on a net basis
\n all gas imbalances, take or pay or other prepayments with respect to
\n the Borrower’s and any Subsidiaries’ Oil and Gas Properties evaluated
\n in such Reserve Report which would require the Borrower or any
\n Subsidiary to deliver Hydrocarbons produced from such Oil and Gas
\n Properties at some future time without then or thereafter receiving
\n full payment therefor.<\/p>\n
Section 8.08 Title to Oil and Gas Properties The Borrower
\nshall, and shall cause each Subsidiary to, maintain good and defensible title to
\nits material (individually or in the aggregate) Oil and Gas Properties, and to
\ndo all things reasonably necessary to cure any material title defects which are
\nnot Excepted Liens of which the Borrower or any Subsidiary has knowledge or has
\nbeen provided notice.<\/p>\n
Section 8.09 ERISA Information and Compliance The Borrower
\nwill promptly furnish and will cause the Subsidiaries and any ERISA Affiliate to
\npromptly furnish to the Administrative Agent with sufficient copies to the
\nLenders (i) upon request of the Administrative Agent, copies of each annual and
\nother report filed with the United States Secretary of Labor, the Internal
\nRevenue Service or the PBGC, with respect to each Plan or any trust created
\nthereunder, (ii) immediately upon becoming aware of the occurrence of any ERISA
\nEvent or of any “prohibited transaction,” as described in section 406 of ERISA
\nor in section 4975 of the Code, in connection with any Plan or any trust created
\nthereunder, a written notice signed by a Responsible Officer specifying the
\nnature thereof, what action the Borrower, the Subsidiary or the ERISA Affiliate
\nis taking or proposes to take with respect thereto, and, when known, any action
\ntaken or proposed by the Internal Revenue Service, the Department of Labor or
\nthe PBGC with respect thereto, and (iii) immediately upon receipt thereof,
\ncopies of any notice of the PBGC’s intention to terminate or to have a trustee
\nappointed to administer any Plan. With respect to each Plan (other than a
\nMultiemployer Plan), the Borrower will, and will cause each Subsidiary and ERISA
\nAffiliate to, (i) satisfy in full and in a timely manner, without incurring any
\nlate payment or underpayment charge or penalty and without giving rise to any
\nlien, all of the contribution and funding requirements of section 412 of the
\nCode (determined without regard to subsections (d), (e), (f) and (k) thereof)
\nand of section 302 of ERISA<\/p>\n
-48-
\n 55<\/p>\n
(determined without regard to sections 303, 304 and 306 of ERISA), and (ii) pay,
\nor cause to be paid, to the PBGC in a timely manner, without incurring any late
\npayment or underpayment charge or penalty, all premiums required pursuant to
\nsections 4006 and 4007 of ERISA.<\/p>\n
ARTICLE IX<\/p>\n
NEGATIVE COVENANTS<\/p>\n
The Borrower covenants and agrees that, so long as any of the
\nCommitments are in effect and until payment in full of Loans hereunder, all
\ninterest thereon and all other amounts payable by the Borrower hereunder:<\/p>\n
Section 9.01 Debt. Neither the Borrower nor any Subsidiary
\nwill incur, create, assume or permit to exist any Debt, except:<\/p>\n
(a) the Notes or other Indebtedness or any guaranty of or
\n suretyship arrangement for the Notes or other Indebtedness;<\/p>\n
(b) Debt of the Borrower existing on the Closing Date which is
\n reflected in the Financial Statements or is disclosed in Schedule 9.01,
\n and any renewals, extensions refinancings or replacements (but not
\n increases) thereof;<\/p>\n
(c) accounts payable (for the deferred purchase price of
\n Property or services) from time to time incurred in the ordinary course
\n of business which, if greater than 90 days past due, are being
\n contested in good faith by appropriate proceedings and for which
\n reserves adequate under GAAP shall have been established therefor;<\/p>\n
(d) Debt under capital leases (as required to be reported on
\n the financial statements of the Borrower pursuant to GAAP) not to
\n exceed $2,000,000;<\/p>\n
(e) Debt associated with bonds or surety obligations required
\n by Governmental Requirements in connection with the operation of Oil
\n and Gas Properties;<\/p>\n
(f) Debt of the Guarantors permitted by Section 9.03(h);<\/p>\n
(g) Debt of any Special Entity so long as such Debt is
\n non-recourse in all respects to the Borrower and its other Subsidiaries
\n other than to the Capital Stock of such Special Entity;<\/p>\n
(h) additional Debt of any Special Entity not otherwise
\n allowed by Section 9.01(g), so long as the aggregate principal amount
\n of all such Debt of all Special Entities at any one time outstanding
\n does not exceed $2,000,000;<\/p>\n
(i) Debt of any Subsidiary owed to the Borrower and any of its
\n other Subsidiaries to the extent permitted by Section 9.03;<\/p>\n
-49-
\n 56<\/p>\n
(j) Debt of the Borrower not otherwise allowed under this
\n Section 9.01 not to exceed $25,000,000 outstanding at any one time; and<\/p>\n
(k) Debt taking the form of a guarantee by the Borrower of the
\n trade payables of Retex Inc. arising in the ordinary course of
\n business.<\/p>\n
Section 9.02 Liens. Neither the Borrower nor any Subsidiary
\nwill create, incur, assume or permit to exist any Lien on any of its Properties
\n(now owned or hereafter acquired), except:<\/p>\n
(a) Liens securing the payment of any Indebtedness;<\/p>\n
(b) Excepted Liens;<\/p>\n
(c) Liens disclosed on Schedule 9.02;<\/p>\n
(d) Liens securing capital leases allowed under Section
\n 9.01(d), but only on the Property under lease;<\/p>\n
(e) Liens on the Capital Stock or Properties of any Special
\n Entity securing Debt permitted by Sections 9.01(g) and (h); and<\/p>\n
(f) other Liens securing obligations not in excess of
\n $5,000,000 in the aggregate.<\/p>\n
Section 9.03 Investments, Loans and Advances Neither the
\nBorrower nor any Subsidiary will make or permit to remain outstanding any loans
\nor advances to or investments in any Person, except that the foregoing
\nrestriction shall not apply to:<\/p>\n
(a) investments, loans or advances reflected in the Financial
\n Statements or which are disclosed to the Lenders in Schedule 9.03;<\/p>\n
(b) accounts receivable arising in the ordinary course of
\n business;<\/p>\n
(c) direct obligations of the United States or any agency
\n thereof, or obligations guaranteed by the United States or any agency
\n thereof, in each case maturing within one year from the date of
\n acquisition thereof;<\/p>\n
(d) commercial paper maturing within one year from the date of
\n creation thereof rated at least A2 or P2 by Standard & Poor’s Rating
\n Group or Moody’s Investors Service, Inc.;<\/p>\n
(e) deposits maturing within one year from the date of
\n acquisition thereof with, including certificates of deposit issued by,
\n any Lender or any office located in the United States of any other bank
\n or trust company which is organized under the laws of the United States
\n or any state thereof, has capital and surplus aggregating at least
\n $500,000,000 (as of the date of such Lender’s or bank or trust
\n company’s most recent financial reports) and has<\/p>\n
-50-
\n 57<\/p>\n
a short term deposit rating of no lower than A2 or P2, as such rating
\n is set forth from time to time, by Standard & Poor’s Rating Group or
\n Moody’s Investors Service, Inc., respectively;<\/p>\n
(f) deposits in money market or similar funds investing
\n exclusively in investments described in Section 9.03(c), 9.03(d) or
\n 9.03(e);<\/p>\n
(g) (i) repurchase obligations of any Lender or of any
\n commercial bank satisfying the requirements of clause (e) of this
\n Section 9.03; (ii) securities with maturities of one year or less from
\n the date of acquisition issued or fully guaranteed by any state,
\n commonwealth or territory of the United States, by any political
\n subdivision or taxing authority of any such state, commonwealth or
\n territory or by any foreign government, the securities of which state,
\n commonwealth, territory, political subdivision, taxing authority or
\n foreign government (as the case may be) are rated at least A by
\n Standard and Poor’s Rating Group or Moody’s Investors Service, Inc.;
\n (iii) securities with effective maturities of one year or less from the
\n date of acquisition backed by an Aaa\/AAA insurer or standby letters of
\n credit issued by any Lender or any commercial bank satisfying the
\n requirements of clause (e) of this Section 9.03; (iv) securities with
\n maturities of six months or less from the date of acquisition
\n overcollateralized with United States’ government obligations as
\n collateral; or<\/p>\n
(h) investments, loans or advances made by the Borrower in or
\n to the Guarantors or by any Guarantor in and to the Borrower;<\/p>\n
(i) investments by the Borrower or any Guarantor in direct
\n ownership interests in additional Oil and Gas Properties and gas
\n gathering systems related thereto or in Persons owning Oil and Gas
\n Properties provided that after giving effect thereto such Person is a
\n Wholly-Owned Subsidiary and such Person shall become a Guarantor if
\n such Person’s Oil and Gas Properties are included in the determination
\n of the Borrowing Base;<\/p>\n
(j) investments made in the ordinary course of business in
\n Wildhorse, and working capital contributions to Wildhorse; provided
\n that such investments and working capital contributions (including
\n those investments and working capital contributions made prior to the
\n Closing Date) do not exceed $65,000,000 in the aggregate, net of
\n dividends or other returns of capital or return on investments; and<\/p>\n
(k) other investments, loans or advances by the Borrower or
\n any Guarantor to any Persons not to exceed $25,000,000 in the aggregate
\n at any time provided however, that investments, loans or advances to
\n Persons who are not Subsidiaries shall not exceed $10,000,000 in the
\n aggregate at any time outstanding, net of dividends or other returns of
\n capital or return on investments.<\/p>\n
Section 9.04 Dividends, Distributions and Redemptions. The
\nBorrower will not declare or pay any dividend, purchase, redeem or otherwise
\nacquire for value any of its stock now or hereafter outstanding, return any
\ncapital to its stockholders or make any distribution of its assets to its
\nstockholders, except that so long as no Default exists or would result
\ntherefrom, the Borrower may pay (i) dividends in shares of Capital Stock of the
\nBorrower and (ii) the Borrower may repurchase Capital Stock of the Borrower in
\nan aggregate principal amount not to exceed $20,000,000.<\/p>\n
-51-<\/p>\n
58<\/p>\n
Section 9.05 Sales and Leasebacks. Neither the Borrower nor
\nany Subsidiary will enter into any arrangement, directly or indirectly, with
\nany Person whereby the Borrower or any Subsidiary shall sell or transfer any
\nof its Property, whether now owned or hereafter acquired, and where by the
\nBorrower or any Subsidiary shall then or thereafter rent or lease as lessee
\nsuch Property or any part thereof or other Property which the Borrower or any
\nSubsidiary intends to use for substantially the same purpose or purposes as the
\nProperty sold or transferred.<\/p>\n
Section 9.06 Nature of Business. Neither the Borrower nor any
\nSubsidiary will allow any material change to be made in the character of its
\nbusiness as an independent oil and gas exploration and production, gas gathering
\nand processing or marketing company.<\/p>\n
Section 9.07 Limitation on Leases. Neither the Borrower nor
\nany Subsidiary will create, incur, assume or permit to exist any obligation for
\nthe payment of rent or hire of Property of any kind whatsoever (real or
\npersonal, but excluding leases of Hydrocarbon Interests, oil and gas operating
\nagreements and capital leases), under leases or lease agreements which would
\ncause the aggregate amount of all payments made by the Borrower and its
\nSubsidiaries pursuant to all such leases or lease agreements to exceed
\n$5,000,000 in any period of twelve consecutive calendar months during the life
\nof such leases.<\/p>\n
Section 9.08 Mergers, Etc. Neither the Borrower nor any
\nSubsidiary will merge into or with or consolidate with any other Person, or
\nsell, lease or otherwise dispose of (whether in one transaction or in a series
\nof transactions) all or substantially all of its Property or assets to any other
\nPerson, except (i) any Subsidiary of the Borrower may be merged or consolidated
\nwith or into the Borrower (provided that the Borrower shall be the continuing or
\nsurviving corporation) or with or into any one or more Wholly-Owned Subsidiaries
\nof the Borrower (provided that the Wholly-Owned Subsidiary or Subsidiaries shall
\nbe the continuing or surviving corporation), (ii) any Subsidiary may sell,
\nlease, transfer or otherwise dispose of any or all of its assets (upon voluntary
\nliquidation or otherwise) to the Borrower or any Wholly-Owned Subsidiary of the
\nBorrower, and (iii) any Special Entity which is not otherwise a Wholly-Owned
\nSubsidiary may merge with or consolidate into another Special Entity which is
\nnot a Wholly-Owned Subsidiary so long as after giving effect to such
\ntransaction, the surviving Persons remains a Subsidiary of the Borrower.<\/p>\n
Section 9.09 Proceeds of Notes; Letters of Credit. The
\nBorrower will not permit the proceeds of the Notes or Letters of Credit to be
\nused for any purpose other than those permitted by Section 7.07. Neither the
\nBorrower nor any Person acting on behalf of the Borrower has taken or will take
\nany action which might cause any of the Loan Documents to violate Regulation T,
\nU or X or any other regulation of the Board of Governors of the Federal Reserve
\nSystem or to violate Section 7 of the Securities Exchange Act of 1934 or any
\nrule or regulation thereunder, in each case as now in effect or as the same may
\nhereinafter be in effect.<\/p>\n
Section 9.10 ERISA Compliance. The Borrower will not at any
\ntime do any of the following if such action or inaction could reasonably be
\nexpected to have a Material Adverse Effect:<\/p>\n
(a) Engage in, or permit any Subsidiary or ERISA Affiliate to
\n engage in, any transaction in connection with which the Borrower, any
\n Subsidiary or any ERISA Affiliate could be subjected to either a civil
\n penalty assessed pursuant to section 502(c), (i) or (1) of ERISA or a
\n tax imposed by Chapter 43 of Subtitle D of the Code;<\/p>\n
52<\/p>\n
59<\/p>\n
(b) Terminate, or permit any Subsidiary or ERISA Affiliate to
\n terminate, any Plan in a manner, or take any other action with respect
\n to any Plan, which could result in any liability to the Borrower, any
\n Subsidiary or any ERISA Affiliate to the PBGC;<\/p>\n
(c) Fail to make, or permit any Subsidiary or ERISA Affiliate
\n to fail to make, full payment when due of all amounts which, under the
\n provisions of any Plan, agreement relating thereto or applicable law,
\n the Borrower, a Subsidiary or any ERISA Affiliate is required to pay as
\n contributions thereto;<\/p>\n
(d) Permit to exist, or allow any Subsidiary or ERISA
\n Affiliate to permit to exist, any accumulated funding deficiency within
\n the meaning of Section 302 of ERISA or section 412 of the Code, whether
\n or not waived, with respect to any Plan;<\/p>\n
(e) Permit, or allow any Subsidiary or ERISA Affiliate to
\n permit, the actuarial present value of the benefit liabilities under
\n any Plan maintained by the Borrower, any Subsidiary or any ERISA
\n Affiliate which is regulated under Title IV of ERISA to exceed the
\n current value of the assets (computed on a plan termination basis in
\n accordance with Title IV of ERISA) of such Plan allocable to such
\n benefit liabilities. The term “actuarial present value of the benefit
\n liabilities” shall have the meaning specified in section 4041 of ERISA;<\/p>\n
(f) Contribute to or assume an obligation to contribute to, or
\n permit any Subsidiary or ERISA Affiliate to contribute to or assume an
\n obligation to contribute to, any Multiemployer Plan;<\/p>\n
(g) Acquire, or permit any Subsidiary or ERISA Affiliate to
\n acquire, an interest in any Person that causes such Person to become an
\n ERISA Affiliate with respect to the Borrower, any Subsidiary or any
\n ERISA Affiliate if such Person sponsors, maintains or contributes to,
\n or at any time in the six-year period preceding such acquisition has
\n sponsored, maintained, or contributed to, (1) any Multiemployer Plan,
\n or (2) any other Plan that is subject to Title IV of ERISA under which
\n the actuarial present value of the benefit liabilities under such Plan
\n exceeds the current value of the assets (computed on a plan termination
\n basis in accordance with Title IV of ERISA) of such Plan allocable to
\n such benefit liabilities;<\/p>\n
(h) Incur, or permit any Subsidiary or ERISA Affiliate to
\n incur, a liability to or on account of a Plan under sections 515, 4062,
\n 4063, 4064, 4201 or 4204 of ERISA;<\/p>\n
(i) Contribute to or assume an obligation to contribute to, or
\n permit any Subsidiary or ERISA Affiliate to contribute to or assume an
\n obligation to contribute to, any employee welfare benefit plan, as
\n defined in section 3(1) of ERISA, including, without limitation, any
\n such plan maintained to provide benefits to former employees of such
\n entities, that may not be terminated by such entities in their sole
\n discretion at any time without any material liability; or<\/p>\n
(j) Amend or permit any Subsidiary or ERISA Affiliate to
\n amend, a Plan resulting in an increase in current liability such that
\n the Borrower, any Subsidiary or any ERISA Affiliate is required to
\n provide security to such Plan under section 401(a)(29) of the Code.<\/p>\n
-53-<\/p>\n
60<\/p>\n
Section 9.11 Sale or Discount of Receivables Neither the
\nBorrower nor any Subsidiary will discount or sell (with or without recourse) any
\nof its notes receivable or accounts receivable.<\/p>\n
Section 9.12 Tangible Net Worth The Borrower will not permit
\nTangible Net Worth at any time to be less than the sum (without duplication) of
\n(i) $325,000,000 plus (ii) 50% of Consolidated Net Income for each fiscal
\nquarter of the Borrower ending after December 31, 1999 (to the extent for any
\nsuch fiscal quarter Consolidated Net Income is positive) plus (iii) 50% of the
\nNet Cash Proceeds of any primary offering (public or private) of equity
\nsecurities consummated by the Borrower after the Closing Date.<\/p>\n
Section 9.13 Fixed Charge Coverage Ratio The Borrower will not
\npermit its Fixed Charge Coverage Ratio as of the end of any fiscal quarter of
\nthe Borrower (calculated quarterly at the end of each fiscal quarter) to be less
\nthan 2.5 to 1.0.<\/p>\n
Section 9.14 Leverage Ratio. The Borrower will not permit the
\nratio of (i) total Debt of the Borrower and its Consolidated Subsidiaries to
\n(ii) the sum of Tangible Net Worth plus total Debt of the Borrower and its
\nConsolidated Subsidiaries to be greater than 0.45 to 1.00 at any time.<\/p>\n
Section 9.15 Sale of Oil and Gas Properties The Borrower will
\nnot, and will not permit any Subsidiary to, sell, assign, farm-out, convey or
\notherwise transfer any Oil and Gas Property or any interest in any Oil and Gas
\nProperty, except for (i) the sale of Hydrocarbons in the ordinary course of
\nbusiness; (ii) the sale or transfer of equipment that is obsolete, worn out,
\ndepleted or uneconomic and disposed of in the ordinary course of business; (iii)
\nthe sale, assignment, farm-out, conveyance or other transfer of any undeveloped
\nacreage for which no Borrowing Base value was given in the most recent
\ndetermination of the Borrowing Base; (iv) during any 12 consecutive month
\nperiod, sales of Oil and Gas Properties or all of the Capital Stock of any
\nSubsidiary owning Oil and Gas Properties which shall not exceed in the aggregate
\nthe lesser of (A) $10,000,000 in fair market value and (B) $10,000,000 in
\nBorrowing Base value allocated to such Properties in the most recent
\nredetermination of the Borrowing Base, and for each such sale, the Borrower
\nshall provide the Administrative Agent with contemporaneous notice thereof; (v)
\nthe sale of gas gathering and processing systems assets; and (vi) dispositions
\npermitted by Section 9.08.<\/p>\n
Section 9.16 Environmental Matters. Neither the Borrower nor
\nany Subsidiary will cause or permit any of its Property to be in violation of,
\nor do anything or permit anything to be done which will subject any such
\nProperty to any remedial obligations under any Environmental Laws, assuming
\ndisclosure to the applicable Governmental Authority of all relevant facts,
\nconditions and circumstances, if any, pertaining to such Property where such
\nviolations or remedial obligations could reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
Section 9.17 Transactions with Affiliates Neither the Borrower
\nnor any Subsidiary will enter into any transaction, including, without
\nlimitation, any purchase, sale, lease or exchange of Property or the rendering
\nof any service, with any Affiliate (other than a Guarantor) unless such
\ntransactions are otherwise permitted under this Agreement, are in the ordinary
\ncourse of its business and are upon fair and reasonable terms no less favorable
\nto it than it would obtain in a comparable arm’s length transaction with a
\nPerson not an Affiliate.<\/p>\n
-54-<\/p>\n
61<\/p>\n
Section 9.18 Subsidiaries. The Borrower shall not, and shall
\nnot permit any Subsidiary to, create any additional Subsidiaries. The Borrower
\nshall not and shall not permit any Subsidiary to sell or to issue any stock or
\nownership interest of a Subsidiary, except to the Borrower or any Guarantor and
\nexcept in compliance with Section 9.03.<\/p>\n
Section 9.19 Negative Pledge Agreements. Except for (i) the
\nWildhorse Limited Liability Company Agreement and (ii) any industrial
\ndevelopment bonds, purchase money mortgages or capital leases permitted by
\nSection 9.01 (in which cases, any prohibition or limitation shall only be
\neffective against the assets finance thereby), neither the Borrower nor any
\nSubsidiary will create, incur, assume or permit to exist any contract, agreement
\nor understanding (other than this Agreement) which in any way prohibits or
\nrestricts the granting, conveying, creation or imposition of any Lien on any of
\nits Property in favor of the Administrative Agent and the Lenders or restricts
\nany Subsidiary from paying dividends to the Borrower, or which requires the
\nconsent of or notice to other Persons in connection therewith.<\/p>\n
Section 9.20 Hedging Agreements. Neither the Borrower nor any
\nSubsidiary will enter into any Hedging Agreements, except where such agreements
\nare entered into in the ordinary course of business (and not for speculative
\npurposes) and designed to protect the Borrower or any of its Subsidiaries
\nagainst fluctuations in Hydrocarbon prices and interest rates provided, that
\nwith respect to Hedging Agreements that the aggregate amount of volumes of
\nHydrocarbons subject to such Hedging Agreements shall not exceed 75% of the
\nanticipated production from the Borrower’s and its Subsidiaries’ proved
\ndeveloped Hydrocarbons reserves for the period covered by such Hedging
\nAgreements and; provided, further, if the Borrower enters into a Hedging
\nAgreement with a Lender, or an Affiliate thereof, the net liabilities of the
\nBorrower under such Hedging Agreement will rank pari passu with the Indebtedness
\nunder this Agreement.<\/p>\n
ARTICLE X<\/p>\n
EVENTS OF DEFAULT; REMEDIES<\/p>\n
Section 10.01 Events of Default. One or more of the following
\nevents shall constitute an “Event of Default”:<\/p>\n
(a) the Borrower shall default in the payment or prepayment
\n when due of any principal of or interest on any Loan, or any
\n reimbursement obligation for a disbursement made under any Letter of
\n Credit, or any fees or other amount payable by it hereunder or under
\n any other Loan Document and such default, other than a default of a
\n payment or prepayment of principal (which shall have no cure period),
\n shall continue unremedied for a period of five days; or<\/p>\n
(b) the Borrower or any Subsidiary shall default in the
\n payment when due of any principal of or interest on any of its other
\n Debt aggregating $5,000,000 or more, or any event specified in any
\n note, agreement, indenture or other document evidencing or relating to
\n any such Debt shall occur if the effect of such event is to cause, or
\n (with the giving of any notice or the lapse of time or both) to permit
\n the holder or holders of such Debt (or a trustee or<\/p>\n
-55-<\/p>\n
62<\/p>\n
agent on behalf of such holder or holders) to cause, such Debt to
\n become due prior to its stated maturity; or<\/p>\n
(c) any representation, warranty or certification made or
\n deemed made herein or in any other Loan Document by the Borrower or any
\n Subsidiary, or any certificate furnished to any Lender or the
\n Administrative Agent pursuant to the provisions hereof or any other
\n Loan Document, shall prove to have been false or misleading as of the
\n time made, deemed made or furnished in any material respect; or<\/p>\n
(d) the Borrower shall default in the performance of any of
\n its obligations under Article IX or any other Article of this Agreement
\n other than under Article VIII; or the Borrower shall default in the
\n performance of any of its obligations under Article VIII or the
\n Borrower or any Guarantor shall default in the performance of its
\n obligations under any other Loan Document (other than the payment of
\n amounts due which shall be governed by Section 10.01(a)) and such
\n default shall continue unremedied for a period of thirty (30) days
\n after the earlier to occur of (i) notice thereof to the Borrower by the
\n Administrative Agent or any Lender (through the Administrative Agent),
\n or (ii) the Borrower otherwise becoming aware of such default; or<\/p>\n
(e) the Borrower shall admit in writing its inability to, or
\n be generally unable to, pay its debts as such debts become due; or<\/p>\n
(f) the Borrower shall (i) apply for or consent to the
\n appointment of, or the taking of possession by, a receiver, custodian,
\n trustee or liquidator of itself or of all or a substantial part of its
\n property, (ii) make a general assignment for the benefit of its
\n creditors, (iii) commence a voluntary ease under the Federal Bankruptcy
\n Code (as now or hereafter in effect), (iv) file a petition seeking to
\n take advantage of any other law relating to bankruptcy, insolvency,
\n reorganization, winding-up, liquidation or composition or readjustment
\n of debts, (v) fail to controvert in a timely and appropriate manner, or
\n acquiesce in writing to, any petition filed against it in an
\n involuntary case under the Federal Bankruptcy Code, or (vi) take any
\n corporate action for the purpose of effecting any of the foregoing; or<\/p>\n
(g) a proceeding or case shall be commenced, without the
\n application or consent of the Borrower, in any court of competent
\n jurisdiction, seeking (i) its liquidation, reorganization, dissolution
\n or winding-up, or the composition or readjustment of its debts, (ii)
\n the appointment of a trustee, receiver, custodian, liquidator or the
\n like of the Borrower of all or any substantial part of its assets, or
\n (iii) similar relief in respect of the Borrower under any law relating
\n to bankruptcy, insolvency, reorganization, winding-up, or composition
\n or adjustment of debts, and such proceeding or case shall continue
\n undismissed, or an order, judgment or decree approving or ordering any
\n of the foregoing shall be entered and continue unstayed and in effect,
\n for a period of 60 days; or (iv) an order for relief against the
\n Borrower shall be entered in an involuntary case under the Federal
\n Bankruptcy Code; or<\/p>\n
(h) a judgment or judgments for the payment of money in excess
\n of $5,000,000 in the aggregate shall be rendered by a court against the
\n Borrower or any Subsidiary and the same shall not be discharged (or
\n provision shall not be made for such discharge), or a stay of execution
\n thereof shall not be procured, within 60 days from the date of entry
\n thereof and the<\/p>\n
-56-
\n 63<\/p>\n
Borrower or such Subsidiary shall not, within said period of 60 days,
\n or such longer period during which execution of the same shall have
\n been stayed, appeal therefrom and cause the execution thereof to be
\n stayed during such appeal; or<\/p>\n
(i) any Guarantor takes, suffers or permits to exist any of
\n the events or conditions referred to in paragraphs (e), (f) or (g) or
\n if any provision of any guaranty agreement related thereto shall for
\n any reason cease to be valid, binding, and enforceable against on any
\n Guarantor or if any Guarantor shall so state in writing; or<\/p>\n
(j) a Change of Control shall occur.<\/p>\n
Section 10.02 Remedies.<\/p>\n
(a) In the case of an Event of Default other than one referred
\n to in clauses (e), (f) or (g) of Section 10.01, the Administrative
\n Agent, upon request of the Majority Lenders, shall, by notice to the
\n Borrower, cancel the Commitments (in whole or part) and\/or declare the
\n principal amount then outstanding of, and the accrued interest on, the
\n Loans and all other amounts payable by the Borrower hereunder and under
\n the Notes (including without limitation the payment of cash collateral
\n to secure the LC Exposure as provided in Section 2.10(b)) to be
\n forthwith due and payable, whereupon such amounts shall be immediately
\n due and payable without presentment, demand, protest, notice of intent
\n to accelerate, notice of acceleration or other formalities of any kind,
\n all of which are hereby expressly waived by the Borrower.<\/p>\n
(b) In the case of the occurrence of an Event of Default
\n referred to in clauses (e), (f) or (g) of Section 10.01, the
\n Commitments shall be automatically canceled and the principal amount
\n then outstanding of, and the accrued interest on, the Loans and all
\n other amounts payable by the Borrower hereunder and under the Notes
\n (including without limitation the payment of cash collateral to secure
\n the LC Exposures provided in Section 2.10(b)) shall become
\n automatically immediately due and payable without presentment, demand,
\n protest, notice of intent to accelerate, notice of acceleration or
\n other formalities of any kind, all of which are hereby expressly waived
\n by the Borrower.<\/p>\n
(c) All proceeds received after maturity of the Notes, whether
\n by acceleration or otherwise shall be applied first to reimbursement of
\n expenses and indemnities provided for in this Agreement and any other
\n Loan Document; second to accrued interest on the Notes; third to fees;
\n fourth pro rata to principal outstanding on the Notes and other
\n Indebtedness; fifth to serve as cash collateral to be held by the
\n Administrative Agent to secure the LC Exposure; and any excess shall be
\n paid to the Borrower or as otherwise required by any Governmental
\n Requirement.<\/p>\n
-57-<\/p>\n
64<\/p>\n
ARTICLE XI<\/p>\n
The Administrative Agent<\/p>\n
Section 11.01 Appointment, Powers and Immunities Each Lender
\nhereby irrevocably appoints and authorizes the Administrative Agent to act as
\nits agent hereunder and under any other Loan Document with such powers as are
\nspecifically delegated to the Administrative Agent by the terms of this
\nAgreement and any other Loan Document, together with such other powers as are
\nreasonably incidental thereto. The Administrative Agent (which term as used in
\nthis sentence and in Section 11.05 and the first sentence of Section 11.06 shall
\ninclude reference to its Affiliates and its and its Affiliates’ officers,
\ndirectors, employees, attorneys, accountants, experts and agents): (i) shall
\nhave no duties or responsibilities except those expressly set forth in the Loan
\nDocuments, and shall not by reason of the Loan Documents be a trustee or
\nfiduciary for any Lender; (ii) makes no representation or warranty to any Lender
\nand shall not be responsible to the Lenders for any recitals, statements,
\nrepresentations or warranties contained in this Agreement, or in any certificate
\nor other document referred to or provided for in, or received by any of them
\nunder, this Agreement, or for the value, validity, effectiveness, genuineness,
\nexecution, effectiveness, legality, enforceability or sufficiency of this
\nAgreement, any Note or any other document referred to or provided for herein or
\nfor any failure by the Borrower or any other Person (other than the
\nAdministrative Agent) to perform any of its obligations hereunder or thereunder
\nor for the existence, value, perfection or priority of any collateral security
\nor the financial or other condition of the Borrower, its Subsidiaries or any
\nother obliger or guarantor; (iii) except pursuant to Section 11.07, shall not be
\nrequired to initiate or conduct any litigation or collection proceedings
\nhereunder; and (iv) shall not be responsible for any action taken or omitted to
\nbe taken by it hereunder or under any other document or instrument referred to
\nor provided for herein or in connection herewith, including its own ordinary
\nnegligence, except for its own gross negligence or willful misconduct. The
\nAdministrative Agent may employ agents, accountants, attorneys and experts and
\nshall not be responsible for the negligence or misconduct of any such agents,
\naccountants, attorneys or experts selected by it in good faith or any action
\ntaken or omitted to be taken in good faith by it in accordance with the advice
\nof such agents, accountants, attorneys or experts. The Administrative Agent may
\ndeem and treat the payee of any Note as the holder thereof for all purposes
\nhereof unless and until a written notice of the assignment or transfer thereof
\npermitted hereunder shall have been filed with the Administrative Agent. The
\nAdministrative Agent is authorized to release any collateral or Guarantor that
\nis permitted to be sold or released pursuant to the terms of the Loan Documents.<\/p>\n
Section 11.02 Reliance by Administrative Agent The
\nAdministrative Agent shall be entitled to rely upon any certification, notice or
\nother communication (including any thereof by telephone, telex, telecopier,
\ntelegram or cable) believed by it to be genuine and correct and to have been
\nsigned or sent by or on behalf of the proper Person or Persons, and upon advice
\nand statements of legal counsel, independent accountants and other experts
\nselected in good faith by the Administrative Agent.<\/p>\n
Section 11.03 Defaults. The Administrative Agent shall not be
\ndeemed to have knowledge of the occurrence of a Default (other than the
\nnon-payment of principal of or interest on Loans or of fees or failure to
\nreimburse for Letter of Credit drawings) unless the Administrative Agent has
\nreceived notice from a Lender or the Borrower specifying such Default and
\nstating that such notice is a “Notice of Default.” In the event that the
\nAdministrative Agent receives such a notice<\/p>\n
-58-
\n 65
\nof the occurrence of a Default, the Administrative Agent shall give prompt
\nnotice thereof to the Lenders. In the event of a payment Default, the
\nAdministrative Agent shall give each Lender prompt notice of each such payment
\nDefault.<\/p>\n
Section 11.04 Rights as a Lender. With respect to its
\nCommitments and the Loans made by it and its participation in the issuance of
\nLetters of Credit, Chase (and any successor acting as Administrative Agent) in
\nits capacity as a Lender hereunder shall have the same rights and powers
\nhereunder as any other Lender and may exercise the same as though it were not
\nacting as the Administrative Agent, and the term “Lender” or “Lenders” shall,
\nunless the context otherwise indicates, include the Administrative Agent in its
\nindividual capacity. Chase (and any successor acting as Administrative Agent)
\nand its Affiliates may (without having to account therefor to any Lender) accept
\ndeposits from, lend money to and generally engage in any kind of banking, trust
\nor other business with the Borrower (and any of its Affiliates) as if it were
\nnot acting as the Administrative Agent, and Chase and its Affiliates may accept
\nfees and other consideration from the Borrower for services in connection
\nwith this Agreement or otherwise without having to account for the same to the
\nLenders.<\/p>\n
Section 11.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY
\nTHE ADMINISTRATIVE AGENT AND EACH ISSUING BANK RATABLY IN ACCORDANCE WITH THEIR
\nPERCENTAGE SHARES FOR THE INDEMNITY MATTERS AS DESCRIBED IN SECTION 12.03 TO
\nTHE EXTENT NOT INDEMNIFIED OR REIMBURSED BY THE BORROWER UNDER SECTION 12.03,
\nBUT WITHOUT LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SAID SECTION 12.03,
\nAND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
\nACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND
\nNATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE
\nADMINISTRATIVE AGENT OR SUCH ISSUING BANK IN ANY WAY RELATING TO OR ARISING OUT
\nOF: (I) THE LOAN DOCUMENTS OR ANY OTHER DOCUMENTS CONTEMPLATED BY OR REFERRED TO
\nHEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A
\nDEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES
\nINCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES HEREUNDER OR (II) THE
\nENFORCEMENT OF ANY OF THE LOAN DOCUMENTS OR OF ANY SUCH OTHER DOCUMENTS; WHETHER
\nOR NOT ANY OF THE FOREGOING SPECIFIED IN THIS SECTION 11.05 ARISES FROM THE
\nSOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE AGENT OR SUCH ISSUING BANK,
\nPROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT
\nTHEY ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE ADMINISTRATIVE
\nAGENT OR ANY ISSUING BANK.<\/p>\n
Section 11.06 Non-Reliance on Administrative Agent and other
\nLenders Each Lender acknowledges and agrees that it has, independently and
\nwithout reliance on the Administrative Agent or any other Lender, and based on
\nsuch documents and information as it has deemed appropriate, made its own credit
\nanalysis of the Borrower and its decision to enter into this Agreement, and that
\nit will, independently and without reliance upon the Administrative Agent or any
\nother Lender, and based on such documents and information as it shall deem
\nappropriate at the time, continue to make its own analysis and decisions in
\ntaking or not taking action under this Agreement and any other Loan Document.
\nThe Administrative Agent shall not be required to keep itself informed as to the
\nperformance or observance by the Borrower or any Subsidiary of this Agreement,
\nthe Notes, any other Loan Documents or any other document referred to or
\nprovided for herein or<\/p>\n
-59-<\/p>\n
66<\/p>\n
to inspect the properties or books of the Borrower or any Subsidiary. Except for
\nnotices, reports and other documents and information expressly required to be
\nfurnished to the Lenders by the Administrative Agent hereunder, the
\nAdministrative Agent shall not have any duty or responsibility to provide any
\nLender with any credit or other information concerning the affairs, financial
\ncondition or business of the Borrower (or any of its Affiliates) which may come
\ninto the possession of the Administrative Agent or any of its Affiliates. In
\nthis regard, each Lender acknowledges that Winstead Sechrest & Minick P.C. is
\nacting in this transaction as special counsel to the Administrative Agent only,
\nexcept to the extent otherwise expressly stated in any legal opinion or any Loan
\nDocument. Each Lender will consult with its own legal counsel to the extent that
\nit deems necessary in connection with the Loan Documents and the matters
\ncontemplated therein.<\/p>\n
Section 11.07 Action by Administrative Agent Except for
\naction or other matters expressly required of the Administrative Agent
\nhereunder, the Administrative Agent shall in all cases be fully justified in
\nfailing or refusing to act hereunder unless it shall (i) receive written
\ninstructions from the Majority Lenders (or all of the Lenders as expressly
\nrequired by Section 12.04) specifying the action to be taken, and (ii) be
\nindemnified to its satisfaction by the Lenders against any and all liability and
\nexpenses which may be incurred by it by reason of taking or continuing to take
\nany such action. The instructions of the Majority Lenders (or all of the Lenders
\nas expressly required by Section 12.04) and any action taken or failure to act
\npursuant thereto by the Administrative Agent shall be binding on all of the
\nLenders. If a Default has occurred and is continuing, the Administrative Agent
\nshall take such action with respect to such Default as shall be directed by the
\nMajority Lenders (or all of the Lenders as required by Section 12.04) in the
\nwritten instructions (with indemnities) described in this Section 11.07,
\nprovided that, unless and until the Administrative Agent shall have received
\nsuch directions, the Administrative Agent may (but shall not be obligated to)
\ntake such action, or refrain from taking such action, with respect to such
\nDefault as it shall deem advisable in the best interests of the Lenders. In no
\nevent, however, shall the Administrative Agent be required to take any action
\nwhich exposes the Administrative Agent to personal liability or which is
\ncontrary to the Loan Documents or applicable law.<\/p>\n
Section 11.08 Resignation or Removal of Administrative
\nAgent Subject to the appointment and acceptance of a successor Administrative
\nAgent as provided below, the Administrative Agent may resign at any time by
\ngiving notice thereof to the Lenders and the Borrower, and the Administrative
\nAgent may be removed at any time with or without cause by the Majority Lenders.
\nUpon any such resignation or removal, the Majority Lenders and, if no Default
\nexists, with the consent of the Borrower, (which consent shall not be
\nunreasonably withheld or delayed) shall have the right to appoint a successor
\nAdministrative Agent. If no successor Administrative Agent shall have been so
\nappointed by the Majority Lenders (and if applicable, approved by the Borrower)
\nand shall have accepted such appointment within thirty (30) days after the
\nretiring Administrative Agent’s giving of notice of resignation or the Majority
\nLenders’ removal of the retiring Administrative Agent, then the retiring
\nAdministrative Agent may, on behalf of the Lenders, appoint a successor
\nAdministrative Agent. Upon the acceptance of such appointment hereunder by a
\nsuccessor Administrative Agent, such successor Administrative Agent shall
\nthereupon succeed to and become vested with all the rights, powers, privileges
\nand duties of the retiring Administrative Agent, and the retiring Administrative
\nAgent shall be discharged from its duties and obligations hereunder. After any
\nretiring Administrative Agent’s resignation or removal hereunder as
\nAdministrative Agent, the provisions of this Article XI and Section 12.03 shall
\ncontinue in effect for its benefit in respect of any actions taken or omitted to
\nbe taken by it while it was acting as the Administrative Agent.<\/p>\n
-60-<\/p>\n
67<\/p>\n
ARTICLE XII<\/p>\n
MISCELLANEOUS<\/p>\n
Section 12.01 Waiver. No failure on the part of the
\nAdministrative Agent or any Lender to exercise and no delay in exercising, and
\nno course of dealing with respect to, any right, power or privilege under any of
\nthe Loan Documents shall operate as a waiver thereof, nor shall any single or
\npartial exercise of any right, power or privilege under any of the Loan
\nDocuments preclude any other or further exercise thereof or the exercise of any
\nother right, power or privilege. The remedies provided herein are cumulative and
\nnot exclusive of any remedies provided by law.<\/p>\n
Section 12.02 Notices. All notices and other communications
\nprovided for herein and in the other Loan Documents (including, without
\nlimitation, any modifications of, or waivers or consents under, this Agreement
\nor the other Loan Documents) shall be given or made in writing by telecopy,
\ncourier or U.S. Mail and telecopied, mailed or delivered to the intended
\nrecipient at the “Address for Notices” specified below its name on the signature
\npages hereof or in the Loan Documents or, as to any party, at such other address
\nas shall be designated by such party in a notice to each other party. Except as
\notherwise provided in this Agreement or in the other Loan Documents, all such
\ncommunications shall be deemed to have been duly given when transmitted, if
\ntransmitted before 1:00 p.m. local time on a Business Day (otherwise on the next
\nsucceeding Business Day) by telecopier and evidence or confirmation of receipt
\nis obtained, or personally delivered or, in the case of a mailed notice, three
\n(3) Business Days after the date deposited in the mails, postage prepaid, in
\neach case given or addressed as aforesaid.<\/p>\n
Section 12.03 Payment of Expenses, Indemnities, etc<\/p>\n
(a) The Borrower agrees:<\/p>\n
(i) whether or not the transactions hereby contemplated are
\n consummated, to pay all reasonable expenses of the Administrative
\n Agent in the administration (both before and after the execution
\n hereof and including advice of counsel as to the rights and duties of
\n the Administrative Agent and the Lenders with respect thereto) of, and
\n in connection with the negotiation, syndication, investigation,
\n preparation, execution and delivery of, recording or filing of,
\n preservation of rights under, enforcement of, and refinancing,
\n renegotiation or restructuring of, the Loan Documents and any
\n amendment, waiver or consent relating thereto (including, without
\n limitation, travel, photocopy, mailing, courier, telephone and other
\n similar expenses of the Administrative Agent, the cost of
\n environmental audits, surveys and appraisals at reasonable intervals,
\n the reasonable fees and disbursements of counsel and other outside
\n consultants for the Administrative Agent and, in the case of
\n enforcement, the reasonable fees and disbursements of counsel for the
\n Administrative Agent and any of the Lenders); and promptly reimburse
\n the Administrative Agent for all amounts expended, advanced or
\n incurred by the Administrative Agent or the Lenders to satisfy any
\n obligation of the Borrower under any Loan Document;<\/p>\n
-61-<\/p>\n
68<\/p>\n
(ii) TO INDEMNIFY THE ADMINISTRATIVE AGENT AND EACH LENDER AND
\n EACH OF THEIR AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS,
\n EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS
\n (“INDEMNIFIED PARTIES”) FROM, HOLD EACH OF THEM HARMLESS AGAINST AND
\n PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY
\n MATTERS WHICH MAY BE iNCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF
\n THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO) AS A
\n RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
\n PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR
\n LETTERS OF CREDIT, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
\n LOAN DOCUMENTS, (III) THE OPERATIONS OF THE BUSINESS OF THE BORROWER
\n AND ITS SUBSIDIARIES, (IV) THE FAILURE OF THE BORROWER OR ANY
\n SUBSIDIARY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT OR WITH ANY
\n GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY OF ANY REPRESENTATION OR
\n ANY BREACH OF ANY WARRANTY OF THE BORROWER OR ANY GUARANTOR SET FORTH
\n IN ANY OF THE LOAN DOCUMENTS, (VI) THE ISSUANCE, EXECUTION AND DELIVERY
\n OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT,
\n OR (VII) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT
\n NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER
\n PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), OR
\n (VIII) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING, WITHOUT
\n LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND ALL
\n OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR
\n PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING (INCLUDING ANY
\n INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND INCLUDING ALL
\n INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF ANY
\n INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY
\n BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE
\n ADMINISTRATIVE AGENT OR A LENDER’S SHAREHOLDERS AGAINST THE
\n ADMINISTRATIVE AGENT OR LENDER OR BY REASON OF THE GROSS NEGLIGENCE OR
\n WILLFUL MISCONDUCT ON THE PART OF THE INDEMNIFIED PARTY; AND<\/p>\n
(iii) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE
\n INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST
\n RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND
\n LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY
\n ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY SUBSIDIARY OR ANY
\n OF THEIR PROPERTIES, INCLUDING WITHOUT LIMITATION, THE TREATMENT OR
\n DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF THEIR PROPERTIES, (II) AS A
\n RESULT OF THE BREACH OR NON-COMPLIANCE BY THE BORROWER OR ANY
\n SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER OR ANY
\n SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE BORROWER OR ANY
\n SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR
\n PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME,
\n COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE,
\n STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF
\n THE PROPERTIES OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY, OR
\n (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION
\n WITH THE LOAN DOCUMENTS; PROVIDED HOWEVER,<\/p>\n
-62-
\n 69<\/p>\n
NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 12.03(A)(III) IN
\n RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE ARISING FROM THE ACTS OR
\n OMISSIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER DURING THE PERIOD
\n AFTER WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE
\n OBTAINED POSSESSION OF SUCH PROPERTY (WHETHER BY FORECLOSURE OR DEED
\n IN LIEU OF FORECLOSURE, AS MORTGAGEE-IN-POSSESSION OR OTHERWISE).<\/p>\n
(b) No Indemnified Party may settle any claim to be
\n indemnified without the consent of the indemnitor, such consent not to
\n be unreasonably withheld; provided, that the indemnitor may not
\n reasonably withhold consent to any settlement that an Indemnified Party
\n proposes, if the indemnitor does not have the financial ability to pay
\n all its obligations outstanding and asserted against the indemnitor at
\n that time, including the maximum potential claims against the
\n Indemnified Party to be indemnified pursuant to this Section 12.03.<\/p>\n
(c) In the case of any indemnification hereunder, the
\n Administrative Agent or Lender, as appropriate shall give notice to the
\n Borrower of any such claim or demand being made against the Indemnified
\n Party and the Borrower shall have the non-exclusive right to join in
\n the defense against any such claim or demand provided that if the
\n Borrower provides a defense, the Indemnified Party shall bear its own
\n cost of defense unless there is a conflict between the Borrower and
\n such Indemnified Party.<\/p>\n
(d) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED
\n PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND
\n OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN
\n AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES
\n OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF
\n ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY
\n IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO
\n THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN
\n ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THIS CONTRACTUAL
\n OBLIGATION OF INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO
\n THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF
\n EVENTS OTHER THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
\n INDEMNIFIED PARTY.<\/p>\n
(e) The Borrower’s obligations under this Section 12.03 shall
\n survive any termination of this Agreement and the payment of the Notes
\n and shall continue thereafter in full force and effect.<\/p>\n
(f) The Borrower shall pay any amounts due under this Section
\n 12.03 within thirty (30) days of the receipt by the Borrower of notice
\n of the amount due.<\/p>\n
Section 12.04 Amendments, Etc. Any provision of this Agreement
\nor any other Loan Document may be amended, modified or waived with the
\nBorrower’s and the Majority Lenders’ prior written consent; provided that (i) no
\namendment, modification or waiver which extends the final maturity of the Loans,
\nincreases the Aggregate Maximum Credit Amounts, forgives the principal amount of
\nany Indebtedness outstanding under this Agreement, releases any guarantor of the
\nIndebtedness (except in accordance with the terms of the Guaranty Agreement)
\nreduces the interest<\/p>\n
-63-<\/p>\n
70<\/p>\n
rate applicable to the Loans or the fees payable to the Lenders generally,
\naffects Section 2.03(a), this Section 12.04 or Section 12.06(a) or modifies the
\ndefinition of “Majority Lenders” shall be effective without consent of all
\nLenders; (ii) no amendment, modification or waiver which increases the Maximum
\nCredit Amount of any Lender shall be effective without the consent of such
\nLender; and (iii) no amendment, modification or waiver which modifies the
\nrights, duties or obligations of the Administrative Agent or an Issuing Bank
\nshall be effective without the consent of the Administrative Agent or such
\nIssuing Bank.<\/p>\n
Section 12.05 Successors and Assigns. This Agreement shall be
\nbinding upon and inure to the benefit of the parties hereto and their respective
\nsuccessors and permitted assigns.<\/p>\n
Section 12.06 Assignments and Participations<\/p>\n
(a) The Borrower may not assign its rights or obligations
\n hereunder or under the Notes or any Letters of Credit without the prior
\n consent of all of the Lenders and the Administrative Agent.<\/p>\n
(b) Any Lender may, upon the written consent of the
\n Administrative Agent and, if no Default exists, the Borrower (which
\n consent will not be unreasonably withheld or delayed), assign to one or
\n more assignees all or a portion of its rights and obligations under
\n this Agreement pursuant to an Assignment Agreement substantially in the
\n form of Exhibit D (an “Assignment”); provided, however that the
\n assignee or assignor shall pay to the Administrative Agent a processing
\n and recordation fee of $3,500 for each assignment. Any such assignment
\n will become effective upon the execution and delivery to the
\n Administrative Agent of the Assignment and the consent of the
\n Administrative Agent and, if necessary, the Borrower. Promptly after
\n receipt of an executed Assignment, the Administrative Agent shall send
\n to the Borrower a copy of such executed Assignment. Upon receipt of
\n such executed Assignment, the Borrower, will, at its own expense,
\n execute and deliver new Notes to the assignor and\/or assignee, as
\n appropriate, in accordance with their respective interests as they
\n appear. Upon the effectiveness of any assignment pursuant to this
\n Section 12.06(b), the assignee will become a “Lender,” if not already a
\n “Lender,” for all purposes of this Agreement and the other Loan
\n Documents. The assignor shall be relieved of its obligations hereunder
\n to the extent of such assignment (and if the assigning Lender no longer
\n holds any rights or obligations under this Agreement, such assigning
\n Lender shall cease to be a “Lender” here under except that its rights
\n under Sections 4.06, 5.01, 5.05 and 12.03 and its obligations under
\n Section 12.15 shall not be affected). The Administrative Agent will
\n prepare on the last Business Day of each month during which an
\n assignment has become effective pursuant to this Section 12.06(b), a
\n new Annex I giving effect to all such assignments effected during such
\n month, and will promptly provide the same to the Borrower and each of
\n the Lenders.<\/p>\n
(c) Each Lender may transfer, grant or assign participations
\n in all or any part of such Lender’s interests hereunder pursuant to
\n this Section 12.06(c) to any Person provided that: (i) such Lender
\n shall remain a “Lender” for all purposes of this Agreement and the
\n transferee of such participation shall not constitute a “Lender”
\n hereunder; and (ii) no participant under any such participation shall
\n have rights to approve any amendment to or waiver of any of the Loan
\n Documents except to the extent such amendment or waiver would<\/p>\n
-64-
\n 71<\/p>\n
(x) forgive any principal owing on any Indebtedness or extend the final
\n maturity of the Loans, (y) reduce the interest rate (other than as a
\n result of waiving the applicability of any post-default increases in
\n interest rates) or fees applicable to any of the Commitments or Loans
\n or Letters of Credit in which such participant is participating, or
\n postpone the payment of any thereof, or (z) release any Guarantor of
\n the Indebtedness (except in accordance with the terms of the Guaranty
\n Agreement). In the case of any such participation, the participant
\n shall not have any rights under this Agreement or any of the other Loan
\n Documents (the participant’s rights against the granting Lender in
\n respect of such participation to be those set forth in the agreement
\n with such Lender creating such participation), and all amounts payable
\n by the Borrower hereunder shall be determined as if such Lender had not
\n sold such participation, provided that such participant shall be
\n entitled to receive additional amounts under Article V on the same
\n basis as if it were a Lender and be indemnified under Section 12.03 as
\n if it were a Lender but only to the extent of the Lender granting such
\n participations. In addition, each agreement creating any participation
\n must include an agreement by the participant to be bound by the
\n provisions of Section 12.15.<\/p>\n
(d) The Lenders may furnish any information concerning the
\n Borrower in the possession of the Lenders from time to time to
\n assignees and participants (including prospective assignees and
\n participants); provided that, such Persons agree to be bound by the
\n provisions of Section 12.15.<\/p>\n
(e) Notwithstanding anything in this Section 12.06 to the
\n contrary, any Lender may assign and pledge its Note to any Federal
\n Reserve Bank. No such assignment and\/or pledge shall release the
\n assigning and\/or pledging Lender from its obligations hereunder.<\/p>\n
(f) Notwithstanding any other provisions of this Section
\n 12.06, no transfer or assignment of the interests or obligations of any
\n Lender or any grant of participations therein shall be permitted if
\n such transfer assignment or grant would require the Borrower to file a
\n registration statement with the SEC or to qualify the Loans under the
\n “Blue Sky” laws of any state.<\/p>\n
Section 12.07 Invalidity. In the event that any one or more of
\nthe provisions contained in any of the Loan Documents shall, for any reason, be
\nheld invalid, illegal or unenforceable in any respect, such invalidity,
\nillegality or unenforceability shall not affect any other provision of this
\nAgreement, the Notes, or any other Loan Document.<\/p>\n
Section 12.08 Counterparts. This Agreement may be executed in
\nany number of counterparts, all of which taken together shall constitute one and
\nthe same instrument and any of the parties hereto may execute this Agreement by
\nsigning any such counterpart.<\/p>\n
Section 12.09 References; Use of Word “Including”. The words
\n“herein,” “hereof,” “hereunder” and other words of similar import when used in
\nthis Agreement refer to this Agreement as a whole, and not to any particular
\narticle, section or subsection. Any reference herein to a Section or Article
\nshall be deemed to refer to the applicable Section or Article of this Agreement
\nunless otherwise stated herein. Any reference herein to an exhibit, schedule, or
\nother attachment shall be deemed to refer to the applicable exhibit, schedule,
\nor other attachment attached hereto unless otherwise stated herein. The word
\n“including”, “includes” and words of similar import means “including, without
\nlimitation”.<\/p>\n
-65-
\n 72<\/p>\n
Section 12.10 Survival. The obligations of the parties under
\nSection 4.06, Article V, and Sections 11.05, 12.03 and 12.15 shall survive the
\nrepayment of the Loans and the termination of the Commitments. To the extent
\nthat any payments on the Indebtedness or proceeds of any collateral are
\nsubsequently invalidated, declared to be fraudulent or preferential, set aside
\nor required to be repaid to a trustee, debtor in possession, receiver or other
\nPerson under any bankruptcy law, common law or equitable cause, then to such
\nextent, the Indebtedness so satisfied shall be revived and continue as if such
\npayment or proceeds had no been received and the Administrative Agent’s and the
\nLenders’ Liens, if any, rights, powers and remedies under this Agreement and
\neach other Loan Document shall continue in full force and effect. In such event,
\neach Loan Document granting a Lien to secure the Indebtedness or guaranteeing
\nthe Indebtedness shall be automatically reinstated and the Borrower shall take
\nsuch action as may be reasonably requested by the Administrative Agent and the
\nLenders to effect such reinstatement.<\/p>\n
Section 12.11 Captions. Captions and section headings
\nappearing herein are included solely for convenience of reference and are not
\nintended to affect the interpretation of any provision of this Agreement.<\/p>\n
Section 12.12 NO ORAL AGREEMENTS. THE LOAN DOCUMENTS EMBODY
\nTHE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL
\nOTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE
\nSUBJECT MATTER HEREOF AND THEREOF. THE LOAN DOCUMENTS REPRESENT THE FINAL
\nAGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
\nCONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
\nUNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.<\/p>\n
Section 12.13 GOVERNING LAW; SUBMISSION TO JURISDICTION.<\/p>\n
(a) THIS AGREEMENT AND THE NOTES (INCLUDING, BUT NOT LIMITED
\n TO, THE VALIDITY AND ENFORCEABILITY HEREOF AND THEREOF) SHALL BE
\n GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
\n OF NEW YORK, OTHER THAN THE CONFLICT OF LAWS RULES THEREOF WHICH WOULD
\n RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.<\/p>\n
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN
\n DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR IN
\n THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
\n YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
\n BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY ACCEPTS FOR
\n ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY,
\n GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
\n COURTS. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
\n HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
\n ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
\n NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
\n ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS
\n SUBMISSION TO JURISDICTION IS NON-<\/p>\n
-66-<\/p>\n
73<\/p>\n
EXCLUSIVE AND DOES NOT PRECLUDE THE PARTIES FROM OBTAINING JURISDICTION
\n OVER OTHER PARTIES IN ANY COURT OTHERWISE HAVING JURISDICTION.<\/p>\n
(c) THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE SERVICE
\n OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
\n PROCEEDING BY THE MAILING OF COPIES THERE OF BY REGISTERED OR CERTIFIED
\n MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS SAID ADDRESS, SUCH
\n SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.<\/p>\n
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE BORROWER,
\n THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY HOLDER OF A NOTE TO SERVE
\n PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
\n PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER
\n JURISDICTION.<\/p>\n
(e) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
\n HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT
\n PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
\n RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
\n COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT
\n PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
\n SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
\n DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES;
\n (III) CERTIFY THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF
\n COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
\n OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
\n TO ENFORCE THE FOREGOING WAIVERS, AND (IV) ACKNOWLEDGE THAT IT HAS BEEN
\n INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE
\n TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS,
\n THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.13.<\/p>\n
SECTION 12.14 Interest. It is the intention of the parties
\nhereto that each Lender shall conform strictly to usury laws applicable to it.
\nAccordingly, if the transactions contemplated hereby would be usurious as to any
\nLender under laws applicable to it (including the laws of the United States of
\nAmerica and the State of New York or any other jurisdiction whose laws may be
\nmandatorily applicable to such Lender notwithstanding the other provisions of
\nthis Agreement), then, in that event, notwithstanding anything to the contrary
\nin any of the Loan Documents or any agreement entered into in connection with or
\nas security for the Notes, it is agreed as follows: (i) the aggregate of all
\nconsideration which constitutes interest under law applicable to any Lender that
\nis contracted for, taken, reserved, charged or received by such Lender under any
\nof the Loan Documents or agreements or otherwise in connection with the Notes
\nshall under no circumstances exceed the maximum amount allowed by such
\napplicable law, and any excess shall be canceled automatically and if
\ntheretofore paid shall be credited by such Lender on the principal amount of the
\nIndebtedness (or, to the extent that the principal amount of the Indebtedness
\nshall have been or would thereby be paid in full, refunded by such Lender to the
\nBorrower); and (ii) in the event that the maturity of the Notes is accelerated
\nby reason of an election of the holder thereof resulting from any Event of
\nDefault under this Agreement or otherwise, or in the event of any required or
\npermitted prepayment, then such consideration that constitutes interest under
\nlaw applicable to any Lender may<\/p>\n
-67-<\/p>\n
74<\/p>\n
never include more than the maximum amount allowed by such applicable law, and
\nexcess interest, if any, provided for in this Agreement or otherwise shall be
\ncanceled automatically by such Lender as of the date of such acceleration or
\nprepayment and, if heretofore paid, shall be credited by such Lender on the
\nprincipal amount of the Indebtedness (or, to the extent that the principal
\namount of the Indebtedness shall have been or would thereby be paid in full,
\nrefunded by such Lender to the Borrower). All sums paid or agreed to be paid to
\nany Lender for the use, forbearance or detention of sums due hereunder shall, to
\nthe extent permitted by law applicable to such Lender, be amortized, prorated,
\nallocated and spread throughout the full term of the Loans evidenced by the
\nNotes until payment in full so that the rate or amount of interest on account of
\nany Loans hereunder does not exceed the maximum amount allowed by such
\napplicable law. If at any time and from time to time (i) the amount of interest
\npayable to any Lender on any date shall be computed at the Highest Lawful Rate
\napplicable to such Lender pursuant to this Section 12.14 and (ii) in respect of
\nany subsequent interest computation period the amount of interest otherwise
\npayable to such Lender would be less than the amount of interest payable to such
\nLender computed at the Highest Lawful Rate applicable to such Lender, then the
\namount of interest payable to such Lender in respect of such subsequent interest
\ncomputation period shall continue to be computed at the Highest Lawful Rate
\napplicable to such Lender until the total amount of interest payable to such
\nLender shall equal the total amount of interest which would have been payable to
\nsuch Lender if the total amount of interest had been computed without giving
\neffect to this Section 12.14.<\/p>\n
Section 12.15 Confidentiality. In the event that the Borrower
\nprovides to the Administrative Agent or the Lenders written confidential
\ninformation belonging to the Borrower or any of its Subsidiaries, if the
\nBorrower shall denominate such information in writing as “confidential”, the
\nAdministrative Agent and the Lenders shall thereafter maintain such information
\nin confidence in accordance with the standards of care and diligence that each
\nutilizes in maintaining its own confidential information. This obligation of
\nconfidence shall not apply to such portions of the information which (i) are in
\nthe public domain, (ii) hereafter become part of the public domain without the
\nAdministrative Agent or the Lenders breaching their obligation of confidence to
\nthe Borrower, (iii) are previously known by the Administrative Agent or the
\nLenders from some source other than the Borrower, (iv) arc hereafter developed
\nby the Administrative Agent or the Lenders without using the Borrower’s
\ninformation, (v) are hereafter obtained by or available to the Administrative
\nAgent or the Lenders from a third party who owes no obligation of confidence to
\nthe Borrower with respect to such information or through any other means other
\nthan through disclosure by the Borrower, (vi) are disclosed with the Borrower’s
\nconsent, (vii) must be disclosed either pursuant to any Governmental Requirement
\nor to Persons regulating the activities of the Administrative Agent or the
\nLenders, or (viii) as may be required by law or regulation or order of any
\nGovernmental Authority in any judicial, arbitration or governmental proceeding.
\nFurther, the Administrative Agent or a Lender may disclose any such information
\nto any other Lender, any independent petroleum engineers or consultants, any
\nindependent certified public accountants, any legal counsel employed by such
\nPerson in connection with this Agreement or any other Loan Document, including
\nwithout limitation, the enforcement or exercise of all rights and remedies
\nthereunder, or any assignee or participant (including prospective assignees and
\nparticipants) in the Loans; provided, however, that the Administrative Agent or
\nthe Lenders shall receive a confidentiality agreement from the Person to whom
\nsuch information is disclosed such that said Person shall have the same
\nobligation to maintain the confidentiality of such information as is imposed
\nupon the Administrative Agent or the Lenders hereunder. Notwithstanding anything
\nto the contrary provided herein, this obligation of confidence shall cease three
\n(3) years from the date the information was furnished, unless the Borrower
\nrequests<\/p>\n
-68-
\n 75<\/p>\n
in writing at least thirty (30) days prior to the expiration of such three year
\nperiod, to maintain the confidentiality of such information for an additional
\nthree year period. The Borrower waives any and all other rights it may have to
\nconfidentiality as against the Administrative Agent and the Lenders arising by
\ncontract, agreement, statute or law except as expressly stated in this Section
\n12.15.<\/p>\n
[SIGNATURES BEGIN ON NEXT PAGE]<\/p>\n
-69-
\n 76<\/p>\n
The parties hereto have caused this Agreement to be duly executed as of
\nthe day and year first above written.<\/p>\n
BORROWER: TOM BROWN, INC.<\/p>\n
By:
\n ——————————–
\n Daniel G. Blanchard
\n Vice President and Treasurer<\/p>\n
Address for Notices:<\/p>\n
555 17th Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
Telecopier No.: 303-260-5095
\n Telephone No.: 303-260-5039
\n e-mail: dblanchard@tombrown.com
\n Attention: Daniel G. Blanchard<\/p>\n
S-1<\/p>\n
77<\/p>\n
LENDER AND
\nADMINISTRATIVE AGENT: THE CHASE MANHATTAN BANK<\/p>\n
By:
\n ——————————
\n Name: Steve Wood
\n Title: Vice President<\/p>\n
Lending Office for Base Rate Loans and
\n Eurodollar Loans:<\/p>\n
270 Park Avenue, 21st Floor
\n New York, NY 10017<\/p>\n
Address for Notices:<\/p>\n
The Chase Manhattan Bank
\n One Chase Manhattan Plaza, 8th Floor
\n New York, NY 10081<\/p>\n
Telecopier No.: 212-552-5777
\n Telephone No.: 212-552-7906
\n Attention: Michael Cerniglia
\n Loan and Agency Services<\/p>\n
S-2
\n 78<\/p>\n
LENDERS: BANK OF AMERICA, N.A.<\/p>\n
By:
\n —————————-
\n Name: Tracey S. Barclay
\n Title: Principal<\/p>\n
Lending Office for Base Rate Loans and
\n Eurodollar Loans:<\/p>\n
901 Main St.
\n 14th Floor
\n Dallas, Texas 75201<\/p>\n
Address for Notices:<\/p>\n
901 Main St.
\n 14th Floor
\n Dallas, Texas 75201<\/p>\n
Telecopier No.: 214-290-9521
\n Telephone No.: 214-209-3089
\n Attention: Hari Kalyandurg<\/p>\n
S-3
\n 79<\/p>\n
U.S. BANK NATIONAL ASSOCIATION<\/p>\n
By:
\n —————————
\n Name: Caroline M. McClurg
\n Title: Vice President<\/p>\n
Lending Office for Base
\n Rate Loans and Eurodollar
\n Loans:<\/p>\n
U.S. Bank National Association
\n 918 17th Street
\n CNBB 0300
\n Denver, Colorado 80303<\/p>\n
Address for Notices:<\/p>\n
U.S. Bank National Association
\n 918 17th Street
\n CNBB 0300
\n Denver, Colorado 80303<\/p>\n
Telecopier No.: 303-585-4362
\n Telephone No.: 303-585-6674
\n Attention: Caroline McClurg<\/p>\n
S-4
\n 80<\/p>\n
THE BANK OF NOVA SCOTIA<\/p>\n
By
\n —————————-
\n Name:
\n Title:<\/p>\n
Lending Office for Base Rate Loans and
\n Eurodollar Loans:<\/p>\n
The Bank of Nova Scotia
\n Atlanta Agency
\n 600 Peachtree Street N.E., Suite 2700
\n Atlanta, Georgia 30308<\/p>\n
Address for Notices:<\/p>\n
The Bank of Nova Scotia
\n Atlanta Agency
\n 600 Peachtree Street N.E., Suite 2700
\n Atlanta, Georgia 30308<\/p>\n
Telecopier No.: 404-888-8998
\n Telephone No.: 404-877-1500
\n Attention: Cleve Bushey<\/p>\n
With copy to:<\/p>\n
Mr. Greg Smith
\n The Bank of Nova Scotia
\n Houston Representative Office
\n 1100 Louisiana, Suite 3000
\n Houston, Texas 77002<\/p>\n
S-5
\n 81<\/p>\n
ANNEX I<\/p>\n
LIST OF PERCENTAGE SHARES AND MAXIMUM CREDIT AMOUNTS<\/p>\n
\n\n PERCENTAGE MAXIMUM
\n NAME OF LENDER SHARE CREDIT AMOUNT
\n———————- ———- ————-
\n
\nThe Chase Manhattan Bank 28% $ 35,000,000
\n————————————————————–
\nBank of America, N.A 26% $ 32,500,000
\n————————————————————–
\nU.S. Bank National Association 26% $ 32,500,000
\n————————————————————–
\nThe Bank of Nova Scotia 20% $ 25,000,000
\n————————————————————–
\n TOTAL 100% $125,000,000
\n————————————————————–
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 82<\/p>\n
EXHIBIT A<\/p>\n
FORM OF NOTE<\/p>\n
$ _____________________________ _________________________, 200 _____<\/p>\n
FOR VALUE RECEIVED, TOM BROWN, INC., A Delaware corporation (the
\n“Borrower”), hereby promises to pay to the order of __________________________
\n(the “Lender”), at the Principal Office of The Chase Manhattan Bank
\n(the “Administrative Agent”), at 270 Park Avenue, New York, New York 10017, the
\nprincipal sum of _____________ Dollars ($____________ ) (or such lesser amount
\nas shall equal the aggregate unpaid principal amount of the Loans made by the
\nLender to the Borrower under the Credit Agreement, as hereinafter defined), in
\nlawful money of the United States of America and in immediately available funds,
\non the dates and in the principal amounts provided in the Credit Agreement, and
\nto pay interest on the unpaid principal amount of each such Loan, at such
\noffice, in like money and funds, for the period commencing on the date of such
\nLoan until such Loan shall be paid in full, at the rates per annum and on the
\ndates provided in the Credit Agreement.<\/p>\n
The date, amount, Type, interest rate, Interest Period and maturity of
\neach Loan made by the Lender to the Borrower, and each payment made on account
\nof the principal thereof, shall be recorded by the Lender on its books and,
\nprior to any transfer of this Note, endorsed by the Lender on the schedules
\nattached hereto or any continuation thereof.<\/p>\n
This Note is one of the Notes referred to in the Credit Agreement dated
\nas of June ____, 2000 among the Borrower, the Lenders which are or become
\nparties thereto (including the Lender) and the Administrative Agent (as the same
\nmay be amended or supplemented from time to time, the “Credit Agreement”), and
\nevidences Loans made by the Lender thereunder. Capitalized terms used in this
\nNote have the respective meanings assigned to them in the Credit Agreement.<\/p>\n
This Note is issued pursuant to the Credit Agreement and is entitled to
\nthe benefits provided for in the Credit Agreement and the other Loan Documents.
\nThe Credit Agreement provides for the acceleration of the maturity of this Note
\nupon the occurrence of certain events, for prepayments of Loans upon the terms
\nand conditions specified therein and other provisions relevant to this Note.<\/p>\n
83<\/p>\n
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
\nLAWS OF THE STATE OF NEW YORK OTHER THAN THE CONFLICTS OF LAWS RULES THEREOF
\nWHICH WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.<\/p>\n
TOM BROWN, INC.<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
84<\/p>\n
EXHIBIT B<\/p>\n
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST<\/p>\n
________________________________, 200 _____<\/p>\n
Tom Brown, Inc., a Delaware corporation (the “Borrower”), pursuant to
\nthe Credit Agreement dated as of June ___, 2000 among the Borrower, The Chase
\nManhattan Bank, as Administrative Agent for the lenders (the “Lenders”) which
\nare or become parties thereto, and such Lenders (together with all amendments or
\nsupplements thereto, the “Credit Agreement”), hereby makes the requests
\nindicated below (unless otherwise defined herein, capitalized terms are defined
\nin the Credit Agreement):<\/p>\n
[ ] 1. Loans:<\/p>\n
(a) Aggregate amount of new Loans to be $______________________;<\/p>\n
(b) Requested funding date is ___________________, 200 _____;<\/p>\n
(c) $ _________________ of such borrowings are to be Eurodollar Loans;<\/p>\n
$ _________________ of such borrowings are to be Base Rate Loans; and<\/p>\n
(d) Length of Interest Period for Eurodollar Loans is:<\/p>\n
________________________.<\/p>\n
[ ] 2. Eurodollar Loan Continuation for Eurodollar Loans maturing on<\/p>\n
________________________:<\/p>\n
(a) Aggregate amount to be continued as Eurodollar Loans is $ ___________;<\/p>\n
(b) Aggregate amount to be converted to Base Rate Loans is $ ____________;<\/p>\n
(c) Length of Interest Period for continued Eurodollar Loans is<\/p>\n
________________________.<\/p>\n
[ ] 3. Conversion of Outstanding Base Rate Loans to Eurodollar Loans:<\/p>\n
Convert $ _____________ of the outstanding Base Rate Loans to
\n Eurodollar Loans on ____________ with an Interest Period of
\n ___________.<\/p>\n
[ ] 4. Conversion of outstanding Eurodollar Loans to Base Rate Loans:<\/p>\n
85
\n Convert $______________ of the outstanding Eurodollar Loans with Interest
\n Period maturing on _______________, 200_, to Base Rate Loans.<\/p>\n
The undersigned certifies that he is the ______________________ of the
\nBorrower, and that as such he is authorized to execute this certificate on
\nbehalf of the Borrower. The undersigned further certifies, represents and
\nwarrants on behalf of the Borrower that the Borrower is entitled to receive the
\nrequested borrowing continuation or conversion under the terms and conditions of
\nthe Credit Agreement.<\/p>\n
TOM BROWN, INC.<\/p>\n
By:
\n —————————————–
\n Name:
\n Title:<\/p>\n
86<\/p>\n
EXHIBIT C<\/p>\n
FORM OF COMPLIANCE CERTIFICATE<\/p>\n
The undersigned hereby certifies that he is the ________________ of Tom
\nBrown, Inc., a Delaware corporation (the “Borrower”), and that as such he is
\nauthorized to execute this certificate on behalf of the Borrower. With reference
\nto the Credit Agreement dated as of June __, 2000 among the Borrower, The Chase
\nManhattan Bank, as Administrative Agent for the lenders (the “Lenders”) which
\nare or become a party thereto, and such Lenders (together with all amendments or
\nsupplements thereto being the “Credit Agreement”), the undersigned represents
\nand warrants as follows (each capitalized term used herein having the same
\nmeaning given to it in the Credit Agreement unless otherwise specified):<\/p>\n
(a) The representations and warranties of the Borrower
\n contained in Article VII of the Credit Agreement and of the Borrower
\n and the Guarantors in any other Loan Document and otherwise made in
\n writing by or on behalf of the Borrower pursuant to the Credit
\n Agreement and the Borrower or any Guarantor pursuant to the other
\n Loan Documents were true and correct when made, and are repeated at
\n and as of the time of delivery hereof and are true and correct at and
\n as of the time of delivery hereof, except as such representations and
\n warranties are modified to give effect to the transactions expressly
\n permitted by the Credit Agreement or are limited to an earlier date.<\/p>\n
(b) The Borrower and each Guarantor has performed and
\n complied with all agreements and conditions contained in the Loan
\n Documents to which it is a party required to be performed or complied
\n with by it prior to or at the time of delivery hereof.<\/p>\n
(c) Neither the Borrower nor any Subsidiary has incurred any
\n material liabilities, direct or contingent, since December 31, 1999,
\n except those set forth in Schedule 9.01 to the Credit Agreement and
\n except those allowed by the terms of the Credit Agreement or
\n consented to by the Lenders in writing.<\/p>\n
(d) Since December 31, 1999, no change has occurred, either
\n in any case or in the aggregate, in the condition, financial or
\n otherwise, of the Borrower or any Subsidiary which could reasonably
\n be expected to have a Material Adverse Effect.<\/p>\n
(e) There exists, and, after giving effect to the Loan or
\n Loans with respect to which this certificate is being delivered, will
\n exist, no Default under the Credit Agreement or any event or
\n circumstance which constitutes, or with notice or lapse of time (or
\n both) would constitute, an event of default under any loan or credit
\n agreement, indenture, deed of trust, security agreement or other
\n agreement or instrument evidencing or pertaining to any Debt of the
\n Borrower or any Subsidiary, or under any material agreement or
\n instrument to which the Borrower or any Subsidiary is a party or by
\n which the Borrower or any Subsidiary is bound.<\/p>\n
87<\/p>\n
(f) The financial statements furnished to the Administrative
\n Agent with this certificate fairly present the consolidated financial
\n condition and results of operations of the Borrower and its
\n Consolidated Subsidiaries as at the end of, and for, the [fiscal
\n quarter] [fiscal year] ending __________________________ and such
\n financial statements have been approved in accordance with the
\n accounting procedures specified in the Credit Agreement.<\/p>\n
(g) Attached hereto are the detailed computations necessary
\n to determine whether the Borrower and its Consolidated Subsidiaries
\n are in compliance with Sections 9.12, 9.13, and 9.14 of the Credit
\n Agreement as of the end of the [fiscal quarter] [fiscal year] ending
\n _______________.<\/p>\n
EXECUTED AND DELIVERED this ___ day of _________, 2000.<\/p>\n
TOM BROWN, INC.<\/p>\n
By:
\n ——————————–
\n Name:
\n Title:<\/p>\n
88<\/p>\n
EXHIBIT D<\/p>\n
FORM OF ASSIGNMENT AGREEMENT<\/p>\n
ASSIGNMENT AGREEMENT (“Agreement”) dated as of _____________, 200__
\nbetween: _____________________________ (the “Assignor”) and _______________ (the
\n“Assigned”).<\/p>\n
RECITALS<\/p>\n
A. The Assignor is a party to the Credit Agreement dated as of June
\n__, 2000 (as amended and supplemented and in effect from time to time, the
\nCredit Agreement”) among Tom Brown, Inc., a Delaware corporation (the
\n“Borrower”), each of the lenders that is or becomes a party thereto as provided
\nin Section 12.06 of the Credit Agreement (individually, together with its
\nsuccessors and assigns, a “Lender”, and collectively, together with their
\nsuccessors and assigns, the “Lenders”), and The Chase Manhattan Bank, in its
\nindividual capacity, (“Chase”) and as administrative agent for the Lenders (in
\nsuch capacity, together with its successors in such capacity, the
\n“Administrative Agent”).<\/p>\n
B. The Assignor proposes to sell, assign and transfer to the
\nAssignee, and the Assignee proposes to purchase and assume from the Assignor,
\n[all][a portion] of the Assignor’s [Maximum Credit Amount], outstanding Loans
\nand its Percentage Share of the outstanding LC Exposure, all on the terms and
\nconditions of this Agreement.<\/p>\n
C. In consideration of the foregoing and the mutual agreements
\ncontained herein, and for other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereto agree as
\nfollows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS.<\/p>\n
Section 1.01 Definitions. All capitalized terms used but not defined
\nherein have the respective meanings given to such terms in the Credit Agreement.<\/p>\n
Section 1.02 Other Definitions. As used herein, the following terms
\nhave the following respective meanings:<\/p>\n
“Assigned Interest” shall mean all of Assignor’s (in its
\n capacity as a “Lender”) rights and obligations (i) under the Credit
\n Agreement and the other Loan Documents in respect of the [Maximum
\n Credit Amount of the Assignor in the principal amount equal to
\n $_______________, including, without limitation, any obligation to
\n participate pro rata in any LC Exposure,] and any obligation to
\n participate pro rata in any LC Exposure and (ii) to make Loans under
\n the [Maximum Credit Amount] and any right to receive payments for the
\n Loans assigned hereby and outstanding hereunder in the amount of $____
\n (the “Loan Balance”), plus the interest and fees which will accrue from
\n and after the Assignment Date.<\/p>\n
“Assignment Date” shall mean _______________________, 200__.<\/p>\n
89<\/p>\n
ARTICLE II<\/p>\n
SALE AND ASSIGNMENT.<\/p>\n
Section 2.01 Sale and Assignment On the terms and conditions set
\nforth herein, effective on and as of the Assignment Date, the Assignor hereby
\nsells, assigns and transfers to the Assignee, and the Assignee hereby purchases
\nand assumes from the Assignor, all of the right, title and interest of the
\nAssignor in and to, and all of the obligations of the Assignor in respect of,
\nthe Assigned Interest. Such sale, assignment and transfer is without recourse
\nand, except as expressly provided in this Agreement, without representation or
\nwarranty.<\/p>\n
Section 2.02 Assumption of Obligations The Assignee agrees with the
\nAssignor (for the express benefit of the Assignor and the Borrower) that the
\nAssignee will, from and after the Assignment Date, perform all of the
\nobligations of the Assignor in respect of the Assigned Interest. From and after
\nthe Assignment Date: (a) the Assignor shall be released from the Assignor’s
\nobligations in respect of the Assigned Interest, and (b) the Assignee shall be
\nentitled to all of the Assignor’s rights, powers and privileges under the Credit
\nAgreement and the other Loan Documents in respect of the Assigned Interest.<\/p>\n
Section 2.03 Consent by Administrative Agent By executing this
\nAgreement as provided below, in accordance with Section 12.06(b) of the Credit
\nAgreement, the Administrative Agent hereby acknowledges notice of the
\ntransactions contemplated by this Agreement and consents to such transactions.<\/p>\n
ARTICLE III<\/p>\n
PAYMENTS.<\/p>\n
Section 3.01 Payments As consideration for the sale, assignment and
\ntransfer contemplated by Section 2.01 hereof, the Assignee shall, on the
\nAssignment Date, assume Assignor obligations in respect of the Assigned Interest
\nand pay to the Assignor an amount equal to the Loan Balance, if any. An amount
\nequal to all accrued and unpaid interest and fees shall be paid to the Assignor
\nas provided in Section 3.02 (iii) below. Except as otherwise provided in this
\nAgreement, all payments hereunder shall be made in Dollars and in immediately
\navailable funds, without setoff, deduction or counterclaim.<\/p>\n
Section 3.02 Allocation of Payment The Assignor and the Assignee
\nagree that (i) the Assignor shall be entitled to any payments of principal with
\nrespect to the Assigned Interest made prior to the Assignment Date, together
\nwith any interest and fees with respect to the Assigned Interest accrued prior
\nto the Assignment Date, (ii) the Assignee shall be entitled to any payments of
\nprincipal with respect to the Assigned Interest made from and after the
\nAssignment Date, together with any and all interest and fees with respect to the
\nAssigned Interest accruing from and after the Assignment Date, and (iii) the
\nAdministrative Agent is authorized and instructed to allocate payments<\/p>\n
90<\/p>\n
received by it for account of the Assignor and the Assignee as provided in the
\nforegoing clauses. Each party hereto agrees that it will hold any interest, fees
\nor other amounts that it may receive to which the other party hereto shall be
\nentitled pursuant to the preceding sentence for account of such other party and
\npay, in like money and funds, any such amounts that it may receive to such other
\nparty promptly upon receipt.<\/p>\n
Section 3.03 Delivery of Notes. Promptly following the receipt by the
\nAssignor of the consideration required to be paid under Section 3.01 hereof, the
\nAssignor shall, in the manner contemplated by Section 12.06(b) of the Credit
\nAgreement, (i) deliver to the Administrative Agent (or its counsel) the Note[s]
\nheld by the Assignor and (ii) notify the Administrative Agent to request that
\nthe Borrower execute and deliver new Notes to the Assignor, if Assignor
\ncontinues to be a Lender, and the Assignee, dated the date of this Agreement in
\nrespective principal amounts equal to the respective [Maximum Credit Amounts]
\n[Commitments] of the Assignor (if appropriate) and the Assignee after giving
\neffect to the sale, assignment and transfer contemplated hereby.<\/p>\n
Section 3.04 Further Assurances The Assignor and the Assignee hereby
\nagree to execute and deliver such other instruments, and take such other
\nactions, as either party may reasonably request in connection with the
\ntransactions contemplated by this Agreement.<\/p>\n
ARTICLE IV<\/p>\n
CONDITIONS PRECEDENT.<\/p>\n
Section 4.01 Conditions Precedent The effectiveness of the sale,
\nassignment and transfer contemplated hereby is subject to the satisfaction of
\neach of the following conditions precedent:<\/p>\n
(a) the execution and delivery of this Agreement by the
\n Assignor and the Assignee;<\/p>\n
(b) the receipt by the Assignor of the payment required to be
\n made by the Assignee under Section 3.01 hereof; and<\/p>\n
(c) the acknowledgment and consent by the Administrative Agent
\n contemplated by Section 2.03 hereof [and, if required, by the Borrower
\n contemplated by Section 2.04 hereof].<\/p>\n
ARTICLE V<\/p>\n
REPRESENTATIONS AND WARRANTIES.<\/p>\n
Section 5.01 Representations and Warranties of the Assignor The
\nAssignor represents and warrants to the Assignee as follows:<\/p>\n
(a) it has all requisite power and authority, and has taken
\n all action necessary to execute and deliver this Agreement and to
\n fulfill its obligations under, and consummate the transactions
\n contemplated by, this Agreement;<\/p>\n
91<\/p>\n
(b) the execution, delivery and compliance with the terms
\n hereof by Assignor and the delivery of all instruments required to be
\n delivered by it hereunder do not and will not violate any Governmental
\n Requirement applicable to it;<\/p>\n
(c) this Agreement has been duly executed and delivered by it
\n and constitutes the legal, valid and binding obligation of the
\n Assignor, enforceable against it in accordance with its terms;<\/p>\n
(d) all approvals and authorizations of, all filings with and
\n all actions by any Governmental Authority necessary for the validity or
\n enforceability of its obligations under this Agreement have been
\n obtained;<\/p>\n
(e) the Assignor has good title to, and is the sole legal and
\n beneficial owner of, the Assigned Interest, free and clear of all
\n Liens, claims, participations or other charges of any nature
\n whatsoever; and<\/p>\n
(f) the transactions contemplated by this Agreement are
\n commercial banking transactions entered into in the ordinary course of
\n the banking business of the Assignor.<\/p>\n
Section 5.02 Disclaimer. Except as expressly provided in Section 5.01
\nhereof, the Assignor does not make any representation or warranty, nor shall it
\nhave any responsibility to the Assignee, with respect to the accuracy of any
\nrecitals, statements, representations or warranties contained in the Credit
\nAgreement or in any certificate or other document referred to or provided for
\nin, or received by any Lender under, the Credit Agreement, or for the value,
\nvalidity, effectiveness, genuineness, execution, effectiveness, legality,
\nenforceability or sufficiency of the Credit Agreement, the Notes or any other
\ndocument referred to or provided for therein or for any failure by the
\nBorrower any other Person (other than Assignor) to perform any of its
\nobligations thereunder prior or for the existence, value, perfection or priority
\nof any collateral security or the financial or other condition of the Borrower
\nor the Subsidiaries or any other obligor or guarantor, or any other matter
\nrelating to the Credit Agreement or any other Loan Document or any extension of
\ncredit thereunder.<\/p>\n
Section 5.03 Representations and Warranties of the Assignee The
\nAssignee represents and warrants to the Assignor as follows:<\/p>\n
(a) it has all requisite power and authority, and has taken
\n all action necessary to execute and deliver this Agreement and to
\n fulfill its obligations under, and consummate the transactions
\n contemplated by, this Agreement;<\/p>\n
(b) the execution, delivery and compliance with the terms
\n hereof by Assignee and the delivery of all instruments required to be
\n delivered by it hereunder do not and will not violate any Governmental
\n Requirement applicable to it;<\/p>\n
(c) this Agreement has been duly executed and delivered by it
\n and constitutes the legal, valid and binding obligation of the
\n Assignee, enforceable against it in accordance with its terms;<\/p>\n
(d) all approvals and authorizations of, all filings with and
\n all actions by any<\/p>\n
92<\/p>\n
Governmental Authority necessary for the validity or enforceability of
\n its obligations under this Agreement have been obtained;<\/p>\n
(e) the Assignee has fully reviewed the terms of the Credit
\n Agreement and the other Loan Documents and has independently and
\n without reliance upon the Assignor, and based on such information as
\n the Assignee has deemed appropriate, made its own credit analysis and
\n decision to enter into this Agreement;<\/p>\n
(f) the Assignee hereby affirms that the representations
\n contained in Section 4.06(d)[(i)][(ii)] of the Credit Agreement are
\n true and accurate as to it [IF (ii) IS SELECTED ADD: and, the Assignee
\n has contemporaneously herewith delivered to the Administrative Agent
\n and the Borrower such certifications as are required thereby to avoid
\n the withholding taxes referred to in Section 4.06]; and<\/p>\n
(g) the transactions contemplated by this Agreement are
\n commercial banking transactions entered into in the ordinary course of
\n the banking business of the Assignee.<\/p>\n
ARTICLE VI<\/p>\n
MISCELLANEOUS.<\/p>\n
Section 6.01 Notices. All notices and other communications provided for
\nherein (including, without limitation, any modifications of, or waivers,
\nrequests or consents under, this Agreement) shall be given or made in writing
\n(including, without limitation, by telecopy) to the intended recipient at its
\n“Address for Notices” specified below its name on the signature pages hereof or,
\nas to either party, at such other address as shall be designated by such party
\nin a notice to the other party.<\/p>\n
Section 6.02 Amendment. Modification or Waiver No provision of this
\nAgreement may be amended, modified or waived except by an instrument in writing
\nsigned by the Assignor and the Assignee, and consented to by the Administrative
\nAgent and, if no Default exists, the Borrower (which consent of the Borrower
\nwill not be unreasonably withheld or delayed). <\/p>\n
Section 6.03 Successors and Assigns This Agreement shall be binding
\nupon and inure to the benefit of the parties hereto and their respective
\nsuccessors and permitted assigns. The representations and warranties made herein
\nby the Assignee are also made for the benefit of the Administrative Agent and
\nthe Borrower, and the Assignee agrees that the Administrative Agent and the
\nBorrower are entitled to rely upon such representations and warranties.<\/p>\n
Section 6.04 Assignments Neither party hereto may assign any of its
\nrights or obligations hereunder except in accordance with the terms of the
\nCredit Agreement.<\/p>\n
Section 6.05 Captions. The captions and section headings appearing
\nherein are included solely for convenience of reference and are not intended to
\naffect the interpretation of any provision of this Agreement.<\/p>\n
Section 6.06 Counterparts. This Agreement may be executed in any number
\nof<\/p>\n
93<\/p>\n
counterparts, each of which shall be identical and all of which, taken together,
\nshall constitute one and the same instrument, and each of the parties hereto may
\nexecute this Agreement by signing any such counterpart.<\/p>\n
Section 6.07 Governing Law. This Agreement shall be governed by, and
\nconstrued in accordance with, the law of the State of New York other than the
\nconflicts of laws rules thereof which would result in the application of the
\nlaws of another jurisdiction.<\/p>\n
Section 6.08 Expenses. To the extent not paid by the Borrower pursuant
\nto the terms of the Credit Agreement, each party hereto shall bear its own
\nexpenses in connection with the execution, delivery and performance of this
\nAgreement.<\/p>\n
Section 6.09 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
\nIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
\nAGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
94<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
\nAgreement to be executed and delivered as of the date first above written.<\/p>\n
ASSIGNOR:<\/p>\n
——————————————-<\/p>\n
By:
\n —————————————-
\n Name:
\n Title:<\/p>\n
Address for Notices:<\/p>\n
——————————————-<\/p>\n
——————————————-<\/p>\n
——————————————-<\/p>\n
Telecopier No.:
\n —————————-
\n Telephone No.:
\n —————————-
\n Attention:
\n —————————-<\/p>\n
95
\n ASSIGNEE:<\/p>\n
——————————-<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
Address for Notices:<\/p>\n
——————————-<\/p>\n
——————————-<\/p>\n
——————————-<\/p>\n
Telecopier No.:
\n —————-
\n Telephone No.:
\n —————–
\n Attention:
\n ———————<\/p>\n
ACKNOWLEDGED AND CONSENTED TO:<\/p>\n
——————————-,
\nas Administrative Agent<\/p>\n
By:
\n —————————-
\nName:
\nTitle:
\n BORROWER<\/p>\n
——————————-<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
Address for Notices:<\/p>\n
——————————-<\/p>\n
——————————-<\/p>\n
——————————-<\/p>\n
Telecopier No.:
\n —————-
\n Telephone No.:
\n —————–
\n Attention:
\n ———————<\/p>\n
96<\/p>\n
EXHIBIT E<\/p>\n
GUARANTORS<\/p>\n
Retex Inc., a Wyoming corporation<\/p>\n
TBI West Virginia, Inc., a Delaware corporation<\/p>\n
Sauer Drilling Company, a Delaware corporation<\/p>\n
97<\/p>\n
SCHEDULE 7.02<\/p>\n
LIABILITIES<\/p>\n
None<\/p>\n
98<\/p>\n
SCHEDULE 7.09<\/p>\n
TAXES<\/p>\n
None<\/p>\n
99<\/p>\n
SCHEDULE 7.10<\/p>\n
TITLES, ETC.<\/p>\n
None<\/p>\n
100<\/p>\n
SCHEDULE 7.14<\/p>\n
SUBSIDIARIES AND PARTNERSHIPS<\/p>\n
1. See attached chart of Tom Brown, Inc. Subsidiaries.<\/p>\n
2. Principal place of business and chief executive office of each Subsidiary:<\/p>\n
Retex Inc.
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
Rocno Corporation
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
Sauer Drilling Company
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
TBI Pipeline Company
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
TBI West Virginia, Inc.
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
TCP Gathering Co.
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
Tom Brown Resources Ltd.
\n 555 Seventeenth Street, Suite 1850
\n Denver, CO 80202-3918<\/p>\n
101<\/p>\n
SCHEDULE 7.19<\/p>\n
INSURANCE<\/p>\n
See Attached<\/p>\n
102<\/p>\n
SCHEDULE 7.20<\/p>\n
HEDGING AGREEMENTS<\/p>\n
\n\n NYMEX NYMEX Floating Net Mark to
\n Production Fixed Barrels per Contract NYMEX Market
\nCounter Party Month Price Month Month Price Value
\n————- ———- —– ———– ——– ——– ———–
\n
\nChase Apr-00 $ — — MAY $ — —
\n May-00 28.72 10,000 JUN 29.96 $ (12,400)
\n Jun-00 28.50 10,000 JUL 31.41 (29,100)
\n Jul-00 28.03 10,000 AUG 31.78 (37,500)
\n Aug-00 27.52 10,000 SEP 30.57 (30,500)<\/p>\nMorgan Stanley Apr-00 $ 31.00 10,000 MAY $ 25.52 $ 54,800
\n May-00 29.54 10,000 JUN 29.96 (4,200)
\n Jun-00 28.35 10,000 JUL 31.41 (30,600)
\n Jul-00 27.50 10,000 AUG 31.78 (42,800)
\n Aug-00 26.79 10,000 SEP 30.57 (37,800)<\/p>\n
Combined Apr-00 $ 31.00 10,000 MAY $ 25.52 $ 54,800
\n May-00 29.13 20,000 JUN 29.96 (16,600)
\n Jun-00 28.43 20,000 JUL 31.41 (59,700)
\n Jul-00 27.77 20,000 AUG 31.78 (80,300)
\n Aug-00 27.16 20,000 SEP 30.57 (68,300)
\n ———
\n $(170,100)
\n<\/c><\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
103<\/p>\n
SCHEDULE 7.22<\/p>\n
MATERIAL AGREEMENTS<\/p>\n
Loan Documents (as such term is defined in the Credit Agreement, dated as of
\nJune 30, 2000, among Tom Brown, Inc., as Borrower, The Chase Manhattan Bank, as
\nAdministrative Agent, and the Lenders signatory thereto.)<\/p>\n
104<\/p>\n
SCHEDULE 9.01<\/p>\n
DEBT<\/p>\n
None<\/p>\n
105<\/p>\n
SCHEDULE 9.02<\/p>\n
LIENS<\/p>\n
1. Texas Financing Statement Number 96-0008026 filed on April 23, 1996<\/p>\n
Debtor: Tom Brown, Inc.<\/p>\n
Secured Party: Toshiba American Information Systems, Inc.<\/p>\n
Security: DK 280 Phone System plus attachments<\/p>\n
2. Texas Financing Statement Number 97-00205758 filed on October 3,1997<\/p>\n
Debtor: Tom Brown Incorporated<\/p>\n
Secured Party: Pitney Bowes Credit Corporation<\/p>\n
Security: Equipment sold by Pitney Bowes<\/p>\n
106<\/p>\n
SCHEDULE 9.03<\/p>\n
INVESTMENTS, LOANS AND ADVANCES<\/p>\n
\n\n EST. BAL
\n AT 6\/30\/00
\n ———-
\n
\nThe Petroleum Place, Inc. $1,000,000
\nTom Brown Resources Ltd. 1,500,000
\nTCP Gathering Co. 200,000
\n ———-
\n $2,700,000
\n<\/c><\/s><\/caption>\n<\/table>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,6962],"corporate_contracts_industries":[9415,9409],"corporate_contracts_types":[9561,9560],"class_list":["post-40989","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-brown-tom-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-energy__exploration","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40989","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40989"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40989"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40989"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40989"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}