exv10w1






Exhibit 10.1




 


 





CREDIT AGREEMENT



dated as of October 14, 2011



among



NOBLE ENERGY, INC.,

as the Borrower,



JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent for the Lenders,



CITIBANK N.A.,

as the Syndication Agent for the Lenders,



BANK OF AMERICA, N.A.,

MIZUHO CORPORATE BANK, LTD.



and



MORGAN STANLEY MUFG LOAN PARTNERS, LLC,

as the Documentation Agents for the Lenders,



and



CERTAIN COMMERCIAL LENDING INSTITUTIONS,

as the Lenders



J.P. MORGAN SECURITIES LLC,

CITIGROUP GLOBAL MARKETS INC.,

MERRIL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

MORGAN STANLEY MUFG LOAN PARTNERS, LLC



and



MIZUHO CORPORATE BANK, LTD.



as Lead Arrangers and Bookrunners



 


 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	 	 
	DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	SECTION 1.1 Defined Terms
	 	 	1	 
	SECTION 1.2 Use of Defined Terms
	 	 	17	 
	SECTION 1.3 Cross-References
	 	 	17	 
	SECTION 1.4 Accounting and Financial Determinations
	 	 	17	 
	 
	 
	ARTICLE II
	 	 	 	 
	THE FACILITY AND BORROWING PROCEDURES
	 	 	 	 
	SECTION 2.1 Facility
	 	 	17	 
	SECTION 2.2 Mandatory Reductions of Commitment Amount
	 	 	18	 
	SECTION 2.3 Voluntary Reduction of Commitment Amount
	 	 	18	 
	SECTION 2.4 Base Rate Loans; Eurodollar Loans; Swingline Loans
	 	 	18	 
	SECTION 2.5 Borrowing Procedures for Loans
	 	 	19	 
	SECTION 2.6 Continuation and Conversion Elections
	 	 	21	 
	SECTION 2.7 Funding
	 	 	21	 
	SECTION 2.8 Repayment of Loans; Evidence of Debt
	 	 	21	 
	SECTION 2.9 Increase in Commitments
	 	 	22	 
	SECTION 2.10 Extension of Maturity Date
	 	 	23	 
	SECTION 2.11 Letters of Credit
	 	 	24	 
	SECTION 2.12 Foreign Borrowers
	 	 	28	 
	SECTION 2.13 Defaulting Lenders.
	 	 	29	 
	 
	 
	ARTICLE III
	 	 	 	 
	REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
	 	 	 	 
	SECTION 3.1 Repayments and Prepayments
	 	 	32	 
	SECTION 3.2 Interest Provisions
	 	 	33	 
	SECTION 3.3 Fees
	 	 	33	 
	SECTION 3.4 Payment Office
	 	 	34	 
	 
	 
	ARTICLE IV
	 	 	 	 
	CERTAIN EURODOLLAR AND OTHER PROVISIONS
	 	 	 	 
	SECTION 4.1 Eurodollar Lending Unlawful
	 	 	35	 
	SECTION 4.2 Deposits Unavailable or Eurodollar Interest Rate Unascertainable
	 	 	35	 
	SECTION 4.3 Increased Eurodollar Borrowing Costs, etc
	 	 	35	 
	SECTION 4.4 Funding Losses
	 	 	35	 






  i 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 4.5 Increased Capital Costs
	 	 	36	 
	SECTION 4.6 Taxes
	 	 	37	 
	SECTION 4.7 Special Fees in Respect of Reserve Requirements
	 	 	39	 
	SECTION 4.8 Payments, Computations, etc.
	 	 	40	 
	SECTION 4.9 Sharing of Payments
	 	 	40	 
	SECTION 4.10 Replacement of Lender on Account of Increased Costs, Eurodollar Lending Unlawful, Reserve Requirements, Taxes, Certain Dissents, etc
	 	 	41	 
	SECTION 4.11 Maximum Interest
	 	 	41	 
	 
	 
	ARTICLE V
	 	 	 	 
	CONDITIONS
	 	 	 	 
	SECTION 5.1 Effective Date
	 	 	42	 
	SECTION 5.2 All Borrowings
	 	 	44	 
	ARTICLE VI
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	SECTION 6.1 Organization, etc
	 	 	44	 
	SECTION 6.2 Due Authorization, Non-Contravention, etc
	 	 	44	 
	SECTION 6.3 Government Approval, Regulation, etc
	 	 	45	 
	SECTION 6.4 Validity; Enforceability, etc
	 	 	45	 
	SECTION 6.5 Financial Information
	 	 	45	 
	SECTION 6.6 No Material Adverse Change
	 	 	45	 
	SECTION 6.7 Litigation, Labor Controversies, etc
	 	 	45	 
	SECTION 6.8 Subsidiaries
	 	 	45	 
	SECTION 6.9 Taxes
	 	 	46	 
	SECTION 6.10 Pension and Welfare Plans
	 	 	46	 
	SECTION 6.11 Environmental Warranties and Compliance
	 	 	46	 
	SECTION 6.12 Regulation U
	 	 	46	 
	SECTION 6.13 Accuracy of Information
	 	 	46	 
	SECTION 6.14 Use of Proceeds
	 	 	47	 
	 
	 
	ARTICLE VII
	 	 	 	 
	COVENANTS
	 	 	 	 
	SECTION 7.1 Affirmative Covenants
	 	 	47	 
	SECTION 7.2 Negative Covenants
	 	 	49	 
	 
	 
	ARTICLE VIII
	 	 	 	 
	EVENTS OF DEFAULT
	 	 	 	 
	SECTION 8.1 Listing of Events of Default
	 	 	53	 
	SECTION 8.2 Action if Bankruptcy
	 	 	55	 






  ii 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 8.3 Action if Other Event of Default
	 	 	55	 
	 
	 
	ARTICLE IX
	 	 	 	 
	THE AGENTS
	 	 	 	 
	SECTION 9.1 Actions
	 	 	55	 
	SECTION 9.2 Funding Reliance, etc
	 	 	56	 
	SECTION 9.3 Exculpation
	 	 	56	 
	SECTION 9.4 Successor
	 	 	56	 
	SECTION 9.5 Loans by the Agents
	 	 	57	 
	SECTION 9.6 Credit Decisions
	 	 	57	 
	SECTION 9.7 Copies, etc
	 	 	57	 
	 
	 
	ARTICLE X
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	SECTION 10.1 Waivers, Amendments, etc
	 	 	58	 
	SECTION 10.2 Notices
	 	 	58	 
	SECTION 10.3 Payment of Costs, Expenses and Taxes
	 	 	59	 
	SECTION 10.4 Indemnification
	 	 	60	 
	SECTION 10.5 Survival
	 	 	61	 
	SECTION 10.6 Severability
	 	 	61	 
	SECTION 10.7 Headings
	 	 	61	 
	SECTION 10.8 Governing Law
	 	 	62	 
	SECTION 10.9 Successors and Assigns
	 	 	62	 
	SECTION 10.10 Sale and Transfer of Loans and Commitments; Participations in Loans and Commitments
	 	 	62	 
	SECTION 10.11 Other Transactions
	 	 	64	 
	SECTION 10.12 Confidentiality
	 	 	64	 
	SECTION 10.13 Forum Selection and Consent to Jurisdiction
	 	 	65	 
	SECTION 10.14 Waiver of Jury Trial
	 	 	66	 
	SECTION 10.15 Judgment Currency
	 	 	66	 
	SECTION 10.16 USA Patriot Act Notice
	 	 	67	 
	SECTION 10.17 NO ORAL AGREEMENTS
	 	 	67	 
	SECTION 10.18 No Adverse Interpretation of Other Agreements
	 	 	67	 
	SECTION 10.19 No Fiduciary Duty
	 	 	67	 




  iii 










 



SCHEDULES AND EXHIBITS




	 	 	 	 	 
	SCHEDULE I

	 	 —
	 	Disclosure Schedule
	SCHEDULE II

	 	 —
	 	Schedule of Commitments
	SCHEDULE III

	 	 —
	 	Issued Letters of Credit
	SCHEDULE 6.8

	 	 —
	 	Subsidiaries
	SCHEDULE 7.2.2

	 	 —
	 	Existing Liens
	 
	EXHIBIT 2.5

	 	 —
	 	Form of Borrowing Request
	EXHIBIT 2.6

	 	 —
	 	Form of Continuation/Conversion Notice
	EXHIBIT 2.8

	 	 —
	 	Form of Note
	EXHIBIT 2.9

	 	 —
	 	Notice of Commitment Increase
	EXHIBIT 2.12

	 	 —
	 	Form of Agreement Supplement
	EXHIBIT 5.1.4

	 	 —
	 	Form of Opinion of Counsel
	EXHIBIT 10.10

	 	 —
	 	Form of Lender Assignment Agreement







  iv 






 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT, dated as of October 14, 2011 (as may be amended, restated, supplemented
or otherwise modified from time to time, this “Agreement”), is among NOBLE ENERGY, INC., a
Delaware corporation (the “Borrower”), JPMORGAN CHASE BANK, N.A. (“JPMCB”), as
administrative agent (JPMCB in such capacity, together with any successor(s) thereto in such
capacity, the “Administrative Agent”), CITIBANK, N.A, as syndication agent (in such
capacity, together with any successor(s) thereto in such capacity, the “Syndication
Agent”), BANK OF AMERICA, N.A., MIZUHO CORPORATE BANK, LTD. and MORGAN STANLEY MUFG LOAN
PARTNERS, LLC, as documentation agents (in such capacity, together with any successor(s) thereto in
such capacity, individually, a “Documentation Agent” and, collectively, the
“Documentation Agents”), and certain commercial lending institutions as are or may become
parties hereto (collectively, the “Lenders”).



WITNESSETH:



     In consideration of the premises and mutual covenants herein contained the parties hereto
hereby agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS



     SECTION 1.1 Defined Terms. The following terms (whether or not underscored) when used
in this Agreement, including its preamble and recitals, shall, except where the context otherwise
requires, have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):



     “Administrative Agent” is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Administrative Agent pursuant to Section
9.4.



     “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



     “Affiliate” of any Person means any other Person which, directly or indirectly,
controls, is controlled by or is under common control with such Person (excluding any trustee
under, or any committee with responsibility for administering, any Plan). A Person shall be deemed
to be “controlled by” any other Person if such other Person possesses, directly or indirectly,
power (a) to vote 20% or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors or managing general partners; or (b) to direct or cause the
direction of the management and policies of such Person whether by contract or otherwise.



     “Agents” means the Administrative Agent, the Syndication Agent, and the Documentation
Agents, together with any successors in any such capacities.



     “Agreement” means, on any date, this Credit Agreement as originally in effect on the
Effective Date and as thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.



1









 





     “Applicable Facility Fee Rate” means the number of basis points per annum (based on a
year of 360 days) set forth below based on the Applicable Rating Level on such date:



	 	 	 	 	 
	Applicable Rating Level	 	Applicable Facility Fee Rate
	Level I
	 	 	12.5	 
	Level II
	 	 	17.5	 
	Level III
	 	 	20.0	 
	Level IV
	 	 	22.5	 
	Level V
	 	 	30.0	 






     Changes in the Applicable Facility Fee Rate will occur automatically without prior notice.
The Administrative Agent will give notice promptly to the Borrower and the Lenders of changes in
the Applicable Facility Fee Rate.



     “Applicable Margin” means on any date and with respect to each Eurodollar Loan, Base
Rate Loan or Swingline Loan, as applicable, the number of basis points per annum set forth below
based on the Applicable Rating Level on such date:



	 	 	 	 	 	 	 	 	 
	 	 	Applicable Eurodollar	 	 	Applicable Base Rate	 
	Applicable Rating Level	 	Margin	 	 	Loan Margin	 
	Level I
	 	 	100.0	 	 	 	0.0	 
	Level II
	 	 	107.5	 	 	 	7.5	 
	Level III
	 	 	117.5	 	 	 	17.5	 
	Level IV
	 	 	140.0	 	 	 	40.0	 
	Level V
	 	 	145.0	 	 	 	45.0	 






     Changes in the Applicable Margin will occur automatically without prior notice. The
Administrative Agent will give notice promptly to the Borrower and the Lenders of changes in the
Applicable Margin.



     “Applicable Rating Level” means (i) at any time that Moody’s and S&P have the
equivalent rating or split ratings of not more than one rating differential of the Borrower’s
senior unsecured long-term debt, the level set forth in the chart below under the heading
“Applicable Rating Level” opposite the rating under the heading “Moody’s” or “S&P” which is the
higher of the two if split ratings or opposite the ratings under the headings “Moody’s” and “S&P”
if equivalent, and (ii) at any time that Moody’s and S&P have split ratings of more than one rating
differential of the Borrower’s senior unsecured long-term debt, the level set forth in the chart
below under the “Applicable Rating Level” opposite the rating under the heading “Moody’s” or “S&P”
which is one rating lower than the higher of the two split ratings.



 Page  2









 





	 	 	 	 	 
	Applicable Rating Level	 	Moody’s	 	S &P
	Level I

	 	>A3
	 	>A-
	Level II

	 	Baal
	 	BBB+
	Level III

	 	Baa2
	 	BBB
	Level IV

	 	Baa3
	 	BBB-
	Level V

	 	<Bal
	 	<BB+






     For example, if the Moody’s rating is Baal and the S&P rating is BBB, Level II shall apply.



     For purposes of the foregoing, (i) “>” means a rating equal to or more favorable than; “<”
means a rating equal to or less favorable than; “>” means a rating greater than; “<” means a
rating less than; (ii) if a rating for the Borrower’s senior unsecured long-term debt is not
available from one of the Rating Agencies, the Applicable Rating Level will be based on the rating
of the other Rating Agency; (iii) if ratings for the Borrower’s senior unsecured long-term debt is
available from neither S&P nor Moody’s, Level V shall be deemed applicable; (iv) if determinative
ratings shall change (other than as a result of a change in the rating system used by any
applicable Rating Agency) such that a change in Applicable Rating Level would result, such change
shall effect a change in Applicable Rating Level as of the day on which it is first announced by
the applicable Rating Agency, and any change in the Applicable Margin or percentage used in
calculating fees due hereunder shall apply commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such change; (v) if the
rating system of any of the Rating Agencies shall change prior to the date all obligations
hereunder have been paid and the Commitments canceled, the Borrower and the Lenders shall negotiate
in good faith to amend the references to specific ratings in this definition to reflect such
changed rating system, and pending such amendment, if no Applicable Rating Level is otherwise
determinable based upon the foregoing, Level V shall apply; and (vi) in the event that either S&P
or Moody’s is no longer in the business of providing ratings, Fitch shall be substituted for such
entity for the purposes of this definition.



     “Approved Fund” is defined in Section 10.10.1.



     “Arrangers” means J.P. Morgan Securities LLC, Citigroup Global Markets Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley MUFG Loan Partners, LLC each in its
capacity as a lead arranger and joint bookrunner of the facility contemplated by this Agreement.



     “ASK Rate” means, on any date and with respect to ASK Rate Loans, a fluctuating rate
of interest per annum equal to the “ASK” rate for Federal Funds appearing on the appropriate
Reuters screen (or on any successor or substitute screen of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those currently provided on



 Page 3









 




such screen of such Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of the offer rates applicable to Federal Funds for a term of one
Business Day) at the time reviewed by the Administrative Agent. In the event such rate is not
available at such time for any reason, then such rate will be the rate agreed to between the
Administrative Agent and the Borrower. The Borrower understands and agrees that the rate quoted
from Reuters is a real-time rate that changes from time to time but that the Administrative Agent
will set the ASK Rate no more than once per Business Day. The rate quoted by the Administrative
Agent and used for the purpose of setting the interest rate for a Swingline Loan until the next
Business Day will be the rate on the screen of the Administrative Agent at the time of setting the
rate and will not be an average or composite of rates for that day. Changes in the rate of
interest on that portion of any Loans maintained as ASK Rate Loans will take effect simultaneously
with each such setting of the ASK Rate.




     “Assignee Lender” is defined in Section 10.10.1.



     “Authorized Officer” means, relative to the Borrower, the President, any Senior Vice
President, the Treasurer or the Secretary of the Borrower, or any other officer of the Borrower
specified as such to the Administrative Agent in writing by any of the aforementioned officers of
the Borrower.



     “Availability Period” means the period from and including the Effective Date to but
excluding the Maturity Date.



     “Base Rate” means, on any date and with respect to all Base Rate Loans, a fluctuating
rate of interest per annum equal to the highest of (a) the rate of interest most recently announced
by JPMCB at its Domestic Office as its base rate for Dollar loans; (b) the Federal Funds Rate most
recently determined by the Administrative Agent plus 1/2%; and (c) the one-month Eurodollar Rate
announced on any date of determination (or if there is no announcement on such day, on the
immediately preceding day on which that rate is announced) plus 1.0%. The Base Rate is not
necessarily intended to be the lowest rate of interest determined by JPMCB in connection with
extensions of credit. Changes in the rate of interest on that portion of any Loans maintained as
Base Rate Loans will take effect simultaneously with each change in the Base Rate. The
Administrative Agent will give notice promptly to the Borrower and the Lenders of changes in the
Base Rate.



     “Base Rate Loan” means a Loan bearing interest at a fluctuating rate determined by
reference to the Base Rate.



     “Borrower” is defined in the preamble, and includes its permitted successors and
assigns.



     “Borrowing” means any extension of credit (as opposed to any continuation or
conversion thereof) made by the Lenders by way of Loans.



     “Borrowing Date” means a date on which a Borrowing is made hereunder.



     “Borrowing Request” means a loan request and certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of Exhibit 2.5 hereto.



 Page 4









 





     “Business Day” means (a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New York, New York or Houston,
Texas; and (b) relative to the making, continuing, prepaying or repaying of any Eurodollar
Borrowing, any day on which dealings in Dollars are carried on in the London and New York
Eurodollar interbank market.



     “Capitalization” means the sum, at any time outstanding and without duplication, of
(i) Debt plus (ii) Stockholders’ Equity.



     “Cash Collateralize” means, to deposit into an account over which the Administrative
Agent has exclusive dominion and control and exclusive right of withdrawal, or to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing
Banks or Lenders, as collateral for LC Exposure or obligations of Lenders to fund participations in
respect of LC Exposure, cash or deposit account balances or, if the Administrative Agent and each
applicable Issuing Bank shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to the Administrative Agent and each
applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and
shall include the proceeds of such cash collateral and other credit support.



     “Capitalized Lease Liabilities” means all monetary obligations of the Borrower or any
of its Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP, would
be classified as capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended.



     “Change in Control” means the acquisition by any Person, or two or more Persons acting
in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding
shares of voting stock of the Borrower.



     “CI Lender” is defined in Section 2.9(a).



     “Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time.



     “Commitment” means, as to any Lender, the obligation, if any, of such Lender to make
Loans pursuant to Section 2.1.1 of this Agreement, to acquire participations in Letters of Credit
pursuant to Section 2.11 of this Agreement, and to acquire participations in Swingline Loans
pursuant to Section 2.1.2 of this Agreement, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder up to but not exceeding the
amount, if any, set forth opposite such Lender’s name on Schedule II, as the same may be reduced,
increased or adjusted from time to time in accordance with this Agreement, including Sections 2.3
and 2.9.



 Page 5









 





     “Commitment Amount” means, on any date, $3,000,000,000, as such amount may be reduced,
increased or adjusted from time to time in accordance with this Agreement, including Sections 2.3
and 2.9.



     “Commitment Increase” is defined in Section 2.9(a).



     “Commitment Increase Effective Date” is defined in Section 2.9(b).



     “Consenting Lenders” is defined in Section 2.10(b).



     “Consolidated Net Tangible Assets” means the total assets of the Borrower and its
Subsidiaries as of the most recent Fiscal Quarter end for which a consolidated balance sheet of the
Borrower and its Subsidiaries is available, minus all current liabilities (excluding the current
portion of any long-term debt) of the Borrower and its Subsidiaries reflected on such balance sheet
and minus total goodwill and other intangible assets of the Borrower and its Subsidiaries reflected
on such balance sheet, all calculated on a consolidated basis in accordance with GAAP.



     “Continuation/Conversion Notice” means a notice of continuation or conversion and
certificate duly executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit 2.6 hereto.



     “Controlled Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a single employer under Section 414(b) or
414(c) of the Code or Section 4001 of ERISA.



     “Debt” means the consolidated Indebtedness of the Borrower and its Subsidiaries.



     “Default” means any condition, occurrence or event which, after notice or lapse of
time or both, would constitute an Event of Default.



     “Default Margin” means two percent (2%) per annum.



     “Defaulting Lender” means, subject to Section 2.13(f), any Lender, as reasonably
determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans within
three Business Days of the date required to be funded by it hereunder unless such Lender notifies
the Administrative Agent and the Borrower in writing that such failure is the result of such
Lender’s determination that one or more conditions precedent to funding (each of which conditions
precedent, together with any applicable default, shall be specifically identified in such writing)
has not been satisfied, (b) notified the Borrower, the Administrative Agent or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement unless such Lender notifies the Administrative Agent and the
Borrower in writing that such intent is the result of such Lender’s determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, (c) otherwise
failed to pay over to the Administrative Agent or any other Lender any other amount required to be
paid by it hereunder within three Business Days of the date when due, unless the



 Page 6









 




subject of a good-faith dispute, (d) failed, within three Business Days after written request
by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and
the Borrower that it will comply with its prospective funding obligations hereunder (provided that
such Lender shall cease to be a Defaulting Lender pursuant to this clause (d) upon receipt of such
written confirmation by the Administrative Agent and the Borrower), or (e) become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has consented to, approved of or acquiesced in any such proceeding or
appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has
consented to, approved of or acquiesced in any such proceeding or appointment; provided that if a
Lender would be a “Defaulting Lender” (A) solely by reason of events relating to a parent company
of such Lender or solely because a governmental authority has been appointed as receiver,
conservator, trustee or custodian for such Lender, in each case as described in clause (e) above,
or (B) solely by reason of the ownership or control by a governmental authority of a parent company
of such Lender, the Administrative Agent may in the case of sub-clause (A) above and shall in the
case of sub-clause (B) above, in its reasonable discretion, determine that such Lender is not a
“Defaulting Lender” if and for so long as the Administrative Agent is satisfied that such Lender
will continue to perform its funding obligations hereunder.




     “Disclosure Schedule” means the Disclosure Schedule attached hereto as Schedule I, as
it may be amended, supplemented or otherwise modified from time to time by the Borrower with the
written consent of the Administrative Agent and the Required Lenders.



     “Documentation Agent” and “Documentation Agents” are defined in the preamble.



     “Dollar” and the sign “$” mean lawful money of the United States.



     “Domestic Office” means, relative to any Lender, the office of such Lender designated
as such in its Administrative Questionnaire or designated in the Lender Assignment Agreement or
such other office of a Lender (or any successor or assign of such Lender) within the United States
as may be designated from time to time by notice from such Lender, as the case may be, to each
other Person party hereto.



     “Effective Date” means the date on which the conditions specified in Section 5.1 are
satisfied (or waived in accordance with Section 10.1).



     “Environmental Law” means any federal, state, or local statute, or rule or regulation
promulgated thereunder, any judicial or administrative order or judgment to which the Borrower or
any Subsidiary is party or which are applicable to the Borrower or any Subsidiary (whether or not
by consent), and any provision or condition of any governmental permit, license or other operating
authorization, relating to protection of the environment, persons or the public welfare from actual
or potential exposure for the effects of exposure to any actual or potential release, discharge,
spill or emission (whether past or present) of, or regarding the manufacture, processing,
production, gathering, transportation, importation, use, treatment, storage or disposal of, any
chemical, raw material, pollutant, contaminant or toxic, corrosive, hazardous, or non-hazardous
substance or waste, including petroleum.



 Page 7









 





     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA also refer to any successor sections.



     “Eurodollar Borrowing” means a borrowing hereunder consisting of the aggregate amount
of the several Eurodollar Loans made by all or some of the Lenders to the Borrower, at the same
time, at the same interest rate and for the same Interest Period.



     “Eurodollar Loan” means a Loan bearing interest, at all times during an Interest
Period applicable to such Loan, at a fixed rate of interest determined by reference to the
Eurodollar Rate.



     “Eurodollar Office” means, relative to any Lender, the office of such Lender
designated as such in its Administrative Questionnaire or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by notice from such
Lender to the Borrower and the Administrative Agent, whether or not outside the United States,
which shall be making or maintaining Eurodollar Loans of such Lender hereunder.



     “Eurodollar Rate” means, relative to any Interest Period for Eurodollar Loans, the
rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) determined by the
Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business
Days prior to the commencement of the relevant Interest Period by reference to Reuters Screen
LIBOR01 Page for deposits in Dollars or any successor thereto or any other service selected by the
Administrative Agent that has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates) for a period most closely
approximating such Interest Period (and in an amount equal to the amount of the relevant Eurodollar
Loans); provided that in the event the applicable Interest Period is not equal to a period of one,
two, three, six, nine, or twelve months, the Eurodollar Rate will be determined based on an
Interest Period equal to the next longer period of one, two, three, six, nine, or twelve months;
and provided further that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition at such time for any reason, then the “Eurodollar Rate”
with respect to such Eurodollar Loan for such Interest Period shall be the interest rate per annum
determined by the Administrative Agent to be the average of the rates per annum at which deposits
in Dollars (in an amount equal to the amount of the relevant Eurodollar Loans) are offered for such
relevant Interest Period to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business
Days prior to the commencement of such Interest Period.



     “Event of Default” is defined in Section 8.1.



     “Excluded Taxes” means any of the following Taxes imposed on or with respect to the
Administrative Agent, any Lender, any Issuing Bank or any other recipient of any obligation of the
Borrower hereunder (each, a “Recipient”) or required to be withheld or deducted from a payment to a
Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes,
and branch profits and similar Taxes, in each case, (i) imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in



 Page 8









 




the case of any Lender, its applicable lending office located in, the jurisdiction imposing
such Tax (or any political subdivision thereof) or (ii) imposed as a result of a present or former
connection between such Recipient and the jurisdiction imposing such Tax (other than connections
arising from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an
interest in any Loan or Loan Document), (b) in the case of a Lender, withholding Taxes imposed on
amounts payable to or for the account of such Lender with respect to an applicable interest in a
Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender becomes a party
to this Agreement (other than pursuant to an assignment request by the Borrower under Section 4.10)
or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to
Section 4.6, amounts with respect to such Taxes were payable either to such Lender’s assignor
immediately before such Lender became a party hereto or to such Lender immediately before it
changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with
Section 4.6.4 and (d) any U.S. federal withholding Taxes imposed under FATCA.




     “Extension Confirmation Date” is defined in Section 2.10(b).



     “Extension Effective Date” is defined in Section 2.10(b).



     “Extension Request” is defined in Section 2.10(a).



     “Facility” is defined in Section 2.1.



     “FAS 133” means the statement of financial accounting standard number 133 entitled
“Accounting for Derivative Instruments and Hedging Activities” issued by the Financial Accounting
Standards Board in June of 1998, as amended from time to time.



     “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date
of this Agreement (or any amended or successor version that is substantively comparable) including
any regulations or official interpretations thereof.



     “Federal Funds Rate” means, for any day, the average rate quoted to the Administrative
Agent at approximately 11:00 a.m. (Central time) on such day (or, if such day is not a Business
Day, on the next preceding Business Day) for overnight Federal Funds transactions arranged by New
York Federal Funds brokers selected by the Administrative Agent.



     “Fee Letter” is defined in Section 3.3.2.



     “Financial Letter of Credit” means any standby Letter of Credit that is not a
Performance Letter of Credit.



     “Fiscal Quarter” means any quarter of a Fiscal Year.



     “Fiscal Year” means any period of twelve consecutive calendar months ending on
December 31.



 Page 9









 





     “Fitch” means Fitch, Inc. and any affiliate thereof and any successor thereto that is
a nationally-recognized rating agency.



     “Foreign Borrower” means any direct or indirect wholly-owned Subsidiary of the
Borrower formed in a jurisdiction outside of the United States reasonably acceptable to the
Administrative Agent and the Lenders that becomes a party to this Agreement pursuant to Section
2.12.



     “F.R.S. Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.



     “Funded Indebtedness” of any Person means Indebtedness of such Person referred to in
clauses (a), (b), (c), (d) and (e) of the definition of “Indebtedness” in Section 1.1.



     “GAAP” is defined in Section 1.4.



     “Guaranteed Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness
of any other Person (other than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person’s Guaranteed Liability shall be the lesser of (i) the limitation on such
Person’s liability, if any, set forth in such agreement, undertaking or arrangement or (ii) the
outstanding principal amount of the Indebtedness guaranteed thereby. Guaranteed Liabilities shall
exclude any act or agreement in connection with any financing of a project owned by any Person that
either (A) guarantees performance of the acquisition, improvement, installation, design,
engineering, construction, development, completion, maintenance or operation of, or otherwise
affects any such act in respect of, all or a portion of the project that is financed, except during
any period, and then only to the extent, that such act or agreement is a guarantee of payment of
such financing or (B) the obligation to pay or perform under which is contingent upon the
occurrence of an event or condition which has not occurred, other than notice, the passage of time
or such financing or any part thereof becoming due; provided, however, to the extent that any
partial payment is required to be made under any such act or agreement providing for a contingent
payment obligation as described in clause (B) above, “Guaranteed Liability” shall be deemed to
include an amount equal to four (4) times such amount required to be paid during the Fiscal Quarter
most recently ended, up to the full amount of the Guaranteed Liability as specified in the
immediately preceding sentence.



     “Hazardous Material” means: (i) any “hazardous substance”, as defined by CERCLA; (ii)
any “hazardous waste”, as defined by the Resource Conservation and Recovery Act, as amended; (iii)
any petroleum, crude oil or any fraction thereof; (iv) any hazardous, dangerous or toxic chemical,
material, waste or substance within the meaning of any Environmental Law; (v) any radioactive
material, including any naturally occurring radioactive material, and any source, special or
by-product material as defined in 42 U.S.C. § 2011 et. seq., and any amendments or reauthorizations
thereof; (vi) asbestos-containing materials in any form or condition; or (vii) polychlorinated
biphenyls in any form or condition.



 Page 10









 





     “Hedging Obligations” means, with respect to any Person, all liabilities of such
Person under derivative contracts, including interest rate or commodity swap agreements, interest
rate or commodity cap agreements and interest rate or commodity collar agreements, and all similar
agreements or arrangements.



     “Herein”, “hereof”, “hereto”, “hereunder” and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular Section, paragraph or provision
of this Agreement or such other Loan Document.



     “Impermissible Qualification” means, relative to the opinion or certification of any
independent public accountant as to any financial statement of the Borrower, any qualification or
exception to such opinion or certification (a) which is of a “going concern” or similar nature; (b)
which relates to the limited scope of examination of matters relevant to such financial statement;
or (c) which relates to the treatment or classification of any item in such financial statement and
which, as a condition to its removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its obligations under Section 7.2.3.



     “Including” means including without limiting the generality of any description
preceding such term.



     “Indebtedness” of any Person means, without duplication: (a) all obligations of such
Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments; (b) all obligations relative to banker’s acceptances issued for the
account of such Person; (c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capitalized Lease Liabilities; (d) all
obligations of such Person to pay the deferred purchase price of property or services (except
accounts payable arising in the ordinary course of business), (e) Indebtedness of another Person of
the type described in clauses (a), (b), (c) or (d) above secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such Indebtedness shall have been assumed by such
Person or is limited in recourse (such Indebtedness being the lesser of (i) the value of such
property on the books of such Person or (ii) the outstanding principal amount of such
Indebtedness); and (f) all Guaranteed Liabilities of such Person in respect of any of the
foregoing. For all purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a general partner or a
joint venturer except to the extent that such Indebtedness by its terms is expressly non-recourse
to such general partner or joint venturer.



     “Indemnified Liabilities” is defined in Section 10.4.



     “Indemnified Parties” is defined in Section 10.4.



     “Indemnified Taxes” means Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any obligation of the Borrower under any Loan Document.



 Page 11









 





     “Information” is defined in Section 10.12.



     “Interest Period” means, with respect to Eurodollar Borrowings, the period beginning
on (and including) the date on which such Eurodollar Borrowing is made or continued as, or
converted into, a Eurodollar Borrowing pursuant to Section 2.5 or 2.6 and shall end on (but
exclude) the day which numerically corresponds to such date one, two, three, six, nine or twelve
months thereafter (or, if such month has no numerically corresponding day, on the last Business Day
of such month), or such other time period acceptable to each Lender, in each case, as the Borrower
may select in its relevant notice pursuant to Section 2.5, provided, however, that (a) the Borrower
shall not be permitted to select Interest Periods to be in effect at any one time which have
expiration dates occurring on more than ten different dates; (b) if such Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall end on the next
following Business Day (unless, if such Interest Period applies to Eurodollar Loans, such next
following Business Day is the first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically corresponding day); and (c) no
Interest Period may end later than the Maturity Date.



     “Issuing Bank” means (a) JPMCB in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.11(i), as well as (b) any
other Lender that, at the request of the Borrower, agrees, in such Lender’s discretion, to become
an Issuing Bank for purposes of issuing Letters of Credit pursuant to Section 2.11; provided that
JPMorgan Chase Bank, N.A. shall at no time be requested or otherwise required to issue Letters of
Credit with an aggregate LC Exposure in excess of $500,000,000. An Issuing Bank may, with the
prior written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or
delayed), arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing
Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.”



     “JPMCB” is defined in the preamble, and includes its successors and assigns.



     “Law” means any law (including, without limitation, any zoning law or ordinance or any
Environmental Law), statute, rule, regulation, ordinance, order, directive, code, interpretation,
judgment, decree, injunction, writ, determination, award, permit, license, authorization,
direction, requirement or decision of an agreement with or by any government or governmental
department, commission, board, court, authority, agency, official or officer, domestic or foreign.



     “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



     “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Percentage of the total LC Exposure at such time.



     “Lender Affiliate” means, (a) with respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar extensions of
credit



 Page 12









 




in the ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.




     “Lender Assignment Agreement” means a Lender Assignment Agreement substantially in the
form of Exhibit 10.10 hereto.



     “Lender Certificate” is defined in Section 2.9.



     “Lenders” means the financial institutions listed on the signature pages hereto and
their respective successors and assigns in accordance with Section 10.10 (including any commercial
lending institution becoming a party hereto pursuant to a Lender Assignment Agreement) or otherwise
by operation of law. Unless the context otherwise requires, the term “Lenders” shall include the
Swingline Lender.



     “Letter of Credit” means any letter of credit issued pursuant to this Agreement or
letter of credit listed on Schedule III hereto.



     “Lien” means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in
property to secure payment of a debt or the performance of an obligation.



     “Loans” means the loan made by the Lenders to the Borrower pursuant to this Agreement,
including, without limitation, Revolving Loans and Swingline Loans.



     “Loan Advances” means the Loans of the same Type and, in the case of Eurodollar Loans,
having the same Interest Period made by all Lenders on the same Business Day and pursuant to the
same Borrowing Request in accordance with Section 2.1.



     “Loan Documents” means this Agreement, each Borrowing Request, each Borrowing Notice,
the Fee Letter, any note, any Letter of Credit or related document, together in each case with all
exhibits, schedules and attachments thereto, and all other agreements and instruments from time to
time executed and delivered by the Borrower or any of its Subsidiaries pursuant to or in connection
with any of the foregoing.



     “Margin Stock” means “margin stock” within the meaning of Regulation U.



     “Material Adverse Effect” means a material adverse effect on (i) the business,
property, financial condition or results of operations of the Borrower and its consolidated
Subsidiaries (taken as a whole) or (ii) the ability of the Borrower or a Foreign Borrower to
perform its payment obligations under any of the Loan Documents.



     “Material Subsidiary” means each Subsidiary of the Borrower now existing or hereafter
acquired or formed by the Borrower that (a) on a consolidated basis for such Subsidiary and its
Subsidiaries, as of the last day of any Fiscal Quarter, was the owner of more than five percent



 Page 13









 




(5%) of the Consolidated Net Tangible Assets of the Borrower and its Subsidiaries or (b) is a
Foreign Borrower.




     “Maturity Date” means the earlier of:



     (a) October 14, 2016, and for any Lender agreeing to extend its Maturity Date pursuant to
Section 2.10, the date on October 14th, in each year thereafter pursuant to which the
Maturity Date of such Lender has been extended; and



     (b) the date on which the Commitment Amount is terminated in full or reduced to zero pursuant
to the terms of Section 2.3;



     (c) the date on which the Commitments are terminated in full and reduced to zero pursuant to
the terms of Article VIII; and



     (d) the date on which the Obligations have become due and payable in full pursuant to the
terms of Article VIII.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto that is a
nationally-recognized rating agency.



     “New Funds Amount” is defined in Section 2.9(d).



     “Non-Consenting Lender” is defined in Section 2.10(a).



     “Notice of Commitment Increase” is defined in Section 2.9(b).



     “Obligations” means all obligations (monetary or otherwise) of the Borrower, including
any Revolving Credit Exposure, arising under or in connection with this Agreement and each other
Loan Document.



     “Organic Document” means, relative to the Borrower, its certificate of incorporation,
its by-laws and all shareholder agreements, voting trusts and similar arrangements applicable to
any of its authorized shares of capital stock.



     “Participant” is defined in Section 10.10.



     “Payment Date” is defined in Section 3.2.3.



     “Payment Office” means the principal office of the Administrative Agent, presently
located at 1111 Fannin, 10th Floor, Houston, Texas 77002.



     “PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any
or all of its functions under ERISA.



     “Pension Plan” means a “pension plan”, as such term is defined in section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan as defined in section
4001(a)(3) of ERISA), and to which the Borrower or any corporation, trade or business that is,
along with the Borrower, a member of a Controlled Group, may have liability, including any



 Page 14









 




liability by reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.




     “Percentage” means, with respect to any Lender, the percentage of the Total
Commitments represented by such Lender’s Commitment, as such percentage may be adjusted from time
to time pursuant to Lender Assignment Agreements executed by such Lender and its Assignee Lenders
and delivered pursuant to Section 10.10, or any decreases in Commitments made in accordance with
this Agreement, or as such percentage may be adjusted from time to time pursuant to Section 2.9.
If the Commitments have terminated or expired, the Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments or other adjustments.



     “Performance Letter of Credit” means any standby Letter of Credit, or similar
arrangement, however named or described, which represents an irrevocable obligation to the
beneficiary on the part of the issuer to make payment on account of any default by the account
party in the performance of a non-financial or commercial obligation.



     “Person” means any natural person, corporation, partnership, firm, association, trust,
government, governmental agency or any other entity, whether acting in an individual, fiduciary or
other capacity.



     “Plan” means any Pension Plan or Welfare Plan.



     “Quarterly Payment Date” means the last day of each March, June, September, and December or,
if any such day is not a Business Day, the next succeeding Business Day.



     “Rating Agency” means either of S&P or Moody’s.



     “Reducing Percentage Lender” is defined in Section 2.9(d).



     “Reduction Amount” is defined in Section 2.9(d).



     “Regulation U” means any of Regulations T, U or X of the Board of Governors of the
Federal Reserve System of the United States of America (the “Board”) from time to time in effect
and shall include any successor or other regulations or official interpretations of the Board or
any successor Person relating to the extension of credit for the purpose of purchasing or carrying
Margin Stock and which is applicable to member banks of the Federal Reserve System or any successor
Person.



     “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.



     “Release” means a “release”, as such term is defined in CERCLA.



 Page 15









 





     “Required Lenders” means Lenders in the aggregate holding greater than 50% of the
aggregate amount of the Revolving Credit Exposures of all Lenders and, if there is no Revolving
Credit Exposure, Lenders having greater than 50% of the then Total Commitment.



     “Resource Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 690, et q., as in effect from time to time.



     “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



     “Revolving Loans” means the loans provided for in Section 2.1.1 hereof.



     “S&P” means Standard & Poor’s Ratings Group and any successor thereto that is a
nationally-recognized rating agency.



     “Stockholders’ Equity” means, as of the time of any determination thereof is to be
made, (a) shareholders’ equity of the Borrower and its consolidated Subsidiaries determined in
accordance with GAAP, plus (b) the absolute cumulative amount by which such shareholders’ equity
shall have been reduced by reason of non-cash write downs of oil and gas assets from time to time
after the Effective Date and (c) either plus the absolute amount by which such shareholders’ equity
shall have been reduced by reason of any non-cash accumulated comprehensive loss or minus the
absolute amount by which such shareholders’ equity shall have been increased by reason of any
non-cash accumulated comprehensive gain, in either case from changes in fair value of hedges, net
of tax, resulting from the requirements of FAS 133.



     “Subsidiary” means any subsidiary of the Borrower.



     “subsidiary” means, with respect to any Person, (a) any corporation, limited liability
company or other business entity of which more than 50% of the outstanding equity interests having
ordinary voting power to elect a majority of the board of directors (or persons performing similar
functions) of such corporation, limited liability company or other business entity (irrespective of
whether at the time equity interests of any other class or classes of such corporation, limited
liability company or other business entity shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by such Person, by such Person and one
or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person and
(b) any partnership of which such Person, such Person and one or more other Subsidiaries of such
Person, or one or more other Subsidiaries of such Person holds more than 50% of the outstanding
general partner interests.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Percentage of the total Swingline Exposure at such time.



     “Swingline Lender” means JPMCB, in its capacity as lender of Swingline Loans
hereunder.



     “Swingline Loan” means the loans provided for in Section 2.1.2 hereof.



 Page 16









 





     “Syndication Agent” is defined in the preamble.



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.



     “Total Commitment” means the aggregate of all the Lenders’ Commitments.



     “Total Debt to Capitalization Ratio” means the ratio of (a) Debt to (b)
Capitalization.



     “Type” means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a Eurodollar Loan.



     “United States” or “U.S.” means the United States of America, its fifty States
and the District of Columbia.



     “USA Patriot Act” means Title III of Pub. L. 107-56 (signed into law October 26,
2001), as amended, reformed or otherwise modified from time to time.



     “Welfare Plan” means a “welfare plan”, as such term is defined in section 3(1) of
ERISA.



     SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the context otherwise
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in the Disclosure Schedule and in each Borrowing Request, Continuation/Conversion Notice,
notice and other communication delivered from time to time in connection with this Agreement or any
other Loan Document.



     SECTION 1.3 Cross-References. Unless otherwise specified, references in this
Agreement and in each other Loan Document to any Article or Section are references to such Article
or Section of this Agreement or such other Loan Document, as the case may be, and, unless otherwise
specified, references in any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.



     SECTION 1.4 Accounting and Financial Determinations. Unless otherwise specified, all
accounting terms used herein or in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder (including under Section 7.2.3)
shall be made, and all financial statements required to be delivered hereunder or thereunder shall
be prepared in accordance with, those generally accepted accounting principles (“GAAP”)
applied in the preparation of the financial statements referred to in Section 6.5.



ARTICLE II

THE FACILITY AND BORROWING PROCEDURES




     SECTION 2.1 Facility. The Lenders grant to the Borrower a credit facility (the
“Facility”) pursuant to which, and upon the terms and subject to the conditions herein set
out and provided that no Default or Event of Default has occurred and is continuing from time to
time on any Business Day, (a) each Lender severally agrees (i) to make Revolving Loans in U.S.
Dollars to the Borrower equal to such Lender’s Percentage of the aggregate amount of Revolving
Loans



 Page 17









 




requested by the Borrower to be made on such day, (ii) to participate in Letters of Credit,
and (iii) to participate in Swingline Loans, and (b) the Swingline Lender agrees to make Swingline
Loans in U.S. Dollars to the Borrower equal to the aggregate amount of Swingline Loans requested by
the Borrower to be made on such day.




          SECTION 2.1.1 Revolving Loans. From time to time during the Availability Period, each
Lender shall make Revolving Loans under this Section to the Borrower in an aggregate principal
amount at any one time outstanding up to but not exceeding such Lender’s Commitment; provided,
however, that at no time shall the aggregate amount of the Revolving Credit Exposure of such Lender
exceed the Lender’s Commitment. Subject to the conditions herein, any such Revolving Loan repaid
prior to the Maturity Date may be reborrowed pursuant to the terms of this Agreement.




          SECTION 2.1.2 Swingline Loans. Subject to the terms and conditions set forth herein,
the Swingline Lender shall make Swingline Loans under this Section to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any time outstanding that
will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$500,000,000 or (ii) the sum of the total Revolving Credit Exposures exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the conditions
herein, any such Swingline Loan repaid prior to the Maturity Date may be reborrowed pursuant to the
terms of this Agreement.




          SECTION 2.1.3 Availability of Facility. No Lender shall be permitted or required to
make (i) any Loan if, after giving effect thereto, the aggregate amount of the Revolving Credit
Exposures of all Lenders would exceed the Commitment Amount, or (ii) any Loan if, after giving
effect thereto, the aggregate amount of the Revolving Credit Exposure of such Lender would exceed
the Lender’s Commitment.




     SECTION 2.2 Mandatory Reductions of Commitment Amount. The Commitment of each Lender
shall be reduced automatically to zero ($0) on the Maturity Date applicable to such Lender.



     SECTION 2.3 Voluntary Reduction of Commitment Amount. The Borrower may, from time to
time on any Business Day occurring after the Effective Date, voluntarily reduce the amount of the
Commitment Amount; provided, however, that all such reductions shall require at least three
Business Days’ prior notice to the Administrative Agent and be permanent, and any partial reduction
of the Commitment Amount shall be in a minimum amount of $10,000,000 and in an integral multiple of
$1,000,000; and provided further that the Borrower shall not reduce the Commitment Amount if, after
giving effect to any concurrent prepayment of the Loans in accordance with Section 3.1, the
aggregate amount of the Revolving Credit Exposures of all Lenders will exceed the Total
Commitments.



     SECTION 2.4 Base Rate Loans; Eurodollar Loans; Swingline Loans. Subject to the terms
and conditions set forth in Article V, (a) each Revolving Loan shall be either a Eurodollar Loan or
a Base Rate Loan as the Borrower may request, it being understood that Revolving Loans made to the
Borrower on any date may be either Eurodollar Loans or Base Rate Loans or



 Page 18









 




a combination thereof and (b) each Swingline Loan shall be either a Base Rate Loan or an ASK
Rate Loan as the Borrower may request, it being understood that Swingline Loans made to the
Borrower on any date may be either Base Rate Loans or ASK Rate Loans or a combination thereof. As
to any Eurodollar Loan, each Lender may, if it so elects, fulfill its commitment to make such
Eurodollar Loan by causing its Eurodollar Office to make such Eurodollar Loan; provided, however,
that in such event the obligation of the Borrower to repay such Eurodollar Loan nevertheless shall
be to such Lender and shall be deemed to be held by such Lender for the account of such Eurodollar
Office.




     SECTION 2.5 Borrowing Procedures for Loans. The Borrower shall give the
Administrative Agent prior written or telegraphic notice pursuant to a Borrowing Request (in
substantially the form of Exhibit 2.5 hereto) of each proposed Borrowing or continuation, and as to
whether such Borrowing or continuation is to be of Base Rate Loans or Eurodollar Loans, as follows:



          SECTION 2.5.1 Base Rate Loans. The Administrative Agent shall receive written or
telegraphic notice from the Borrower on or before 2:00 p.m. Central time one (1) Business Day prior
to the date of the Borrowing of a Base Rate Loan (provided that any such notice of the Borrowing of
a Base Rate Loan to finance the reimbursement of an LC Disbursement as contemplated by Section
2.11(e) may be given not later than 10:00 a.m., Central time, on the date of the proposed
Borrowing) and the amount of such Borrowing (which shall be in a minimum amount of $5,000,000 and
an integral multiple of $1,000,000 unless such Borrowing is required to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.11(e)), and the Administrative Agent
shall advise each Lender thereof promptly thereafter. Not later than 11:00 a.m., Central time, on
the date specified in such notice for such Borrowing, each Lender shall provide to the
Administrative Agent at the Payment Office, same day or immediately available funds covering such
Lender’s Percentage of the requested Base Rate Loan. Upon fulfillment of the applicable conditions
set forth in Article V with respect to such Base Rate Loan, the Administrative Agent shall
make available to the Borrower the proceeds of each Base Rate Loan (to the extent received from the
Lenders) by wire transfer of such proceeds to such account(s) as the Borrower shall have specified
in the Borrowing Request.




          SECTION 2.5.2 Eurodollar Loans. The Administrative Agent shall receive written or
telegraphic notice pursuant to a Borrowing Request from the Borrower on or before 2:00 p.m. Central
time, at least three (3) Business Days prior to the date requested for each proposed Borrowing or
continuation of a Eurodollar Loan, of the date of such Borrowing or continuation, as the case may
be, the amount of such Borrowing or continuation, as the case may be (which shall be in a minimum
amount of $5,000,000 and an integral multiple of $1,000,000), and the duration of the initial
Eurodollar Interest Period with respect thereto, and the Administrative Agent shall advise each
Lender thereof promptly thereafter. Not later than 10:00 a.m., Central time, on the date specified
in such notice for such Borrowing, each Lender shall provide to the Administrative Agent at the
Payment Office, same day or immediately available funds covering such Lender’s Percentage of the
requested Eurodollar Loan. Upon fulfillment of the applicable conditions set forth in Article
V with respect to such Eurodollar Loan, the Administrative Agent shall make available to the
Borrower the proceeds of each Eurodollar Loan (to the extent received from the Lenders) by wire
transfer of such proceeds to such account(s) as the Borrower shall have specified in the Borrowing
Request.






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          SECTION 2.5.3 Swingline Loans.




          (a) The Administrative Agent shall receive written or telegraphic notice from the Borrower on
or before 2:00 p.m. Central time on the day of the proposed Swingline Loan and the amount of such
Borrowing (which shall be in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000), and the Administrative Agent shall advise the Swingline Lender thereof promptly
thereafter. Each such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day), the amount of the requested Swingline Loan and whether the Swingline Loan
will be a Base Rate Loan or a ASK Rate Loan. Not later than 3:00 p.m., Central time, on the date
specified in such notice for such Borrowing, the Swingline Lender shall provide to the
Administrative Agent at the Payment Office, same day or immediately available funds covering the
requested Swingline Loan. Upon fulfillment of the applicable conditions set forth in Article
V with respect to such Swingline Loan, the Administrative Agent shall make available to the
Borrower the proceeds of such Swingline Loan (to the extent received from the Swingline Lender) by
wire transfer of such proceeds to such account(s) as the Borrower shall have specified in the
Borrowing Request.




          (b) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., Central time, on any Business Day require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon
receipt of such notice, the Administrative Agent will give notice thereof to each Lender,
specifying in such notice such Lender’s Percentage of such Swingline Loan or Loans. Each Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such Lender’s Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this paragraph by providing to the Administrative Agent at the Payment Office,
same day or immediately available funds covering such Lender’s Percentage of such Swingline Loan or
Loans. Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by
it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in
any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so remitted shall be repaid
to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such
payment is required to be refunded to the Borrower for any reason. The purchase of participations
in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.





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     SECTION 2.6 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 2:00 p.m., Central time, on
a Business Day, the Borrower may from time to time irrevocably elect, on not less than three (3)
nor more than five (5) Business Days’ notice that all, or any portion in an aggregate minimum
amount of $5,000,000 and an integral multiple of $1,000,000 of any Borrowings be, (i) in the case
of Base Rate Loans, converted into Eurodollar Loans, or (ii) in the case of Eurodollar Loans, be
converted into a Base Rate Loan or continued as a Eurodollar Loan of such Type (in the absence of
delivery of a Continuation/Conversion Notice with respect to any Eurodollar Loan at least three (3)
Business Days before the last day of the then current Interest Period with respect thereto, such
Eurodollar Loan shall, on such last day, automatically convert to a Base Rate Loan);
provided, however, that (i) each such conversion or continuation shall be pro rated
among the applicable outstanding Loans of all Lenders, and (ii) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, Eurodollar Loans when any
Event of Default has occurred and is continuing. This Section shall not apply to Swingline Loans
or Borrowings, which may not be converted or continued.



     SECTION 2.7 Funding. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert Eurodollar Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such Lender) to make or maintain such
Eurodollar Loan; provided, however, that such Eurodollar Loan shall nonetheless be
deemed to have been made and to be held by such Lender, and the obligation of the Borrower to repay
such Eurodollar Loan shall nevertheless be to such Lender for the account of such foreign branch,
Affiliate or international banking facility. In addition, the Borrower hereby consents and agrees
that, for purposes of any determination to be made for purposes of Sections 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all Eurodollar
Loans by purchasing, as the case may be, Dollar deposits in its Eurodollar Office’s interbank
eurodollar market.



     SECTION 2.8 Repayment of Loans; Evidence of Debt.


          (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan on the Maturity
Date.


          (b) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the
account of the Swingline Lender the then unpaid principal amount of each Swingline Loan on the
earlier to occur of (i) the Maturity Date and (ii) the date which is 15 days after such Swingline
Loan was made; provided that on each date that a Borrowing of Revolving Loans is made, the Borrower
shall repay all Swingline Loans then outstanding.


          (c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.


          (d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder and the Interest Period applicable thereto, if any, (ii)



Page 21









 








the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



          (e) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.


          (f) Any Lender may request that Loans made by it be evidenced by a promissory note, in
substantially the form attached as Exhibit 2.8 hereto. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.10.1) be represented by one
or more promissory notes in such form payable to the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).



     SECTION 2.9 Increase in Commitments.


          (a) Subject to the terms and conditions set forth herein, the Borrower shall have the right,
without the consent of the Lenders, the Administrative Agent or the Issuing Banks, to cause from
time to time an increase in the total amount of the Commitments (a “Commitment Increase”)
by adding to this Agreement one or more additional financial institutions that are not already
Lenders hereunder and that are reasonably satisfactory to the Administrative Agent and the Issuing
Banks (each a “CI Lender”) or by allowing one or more existing Lenders to increase their
respective Commitments; provided, however, that (i) no Event of Default shall have occurred which
is continuing, (ii) no such Commitment Increase shall cause the total amount of the Commitments to
exceed $4,000,000,000, (iii) no Lender’s Commitment shall be increased without such Lender’s prior
written consent (which consent may be given or withheld in such Lender’s sole and absolute
discretion) and (iv) if, on the effective date of such increase, any Loans have been funded, then
the Borrower shall be obligated to pay any breakage fees or costs in connection with the
reallocation of such outstanding Loans.


          (b) Any Commitment Increase must be requested by written notice from the Borrower to the
Administrative Agent (a “Notice of Commitment Increase”) in the form of Exhibit 2.9 hereto.
The Administrative Agent shall give prompt notice to each Issuing Bank of its receipt of a Notice
of Commitment Increase. Once the Notice of Commitment Increase is fully-executed, such notice and
such Commitment Increase shall be effective on the proposed effective date set forth in such notice
or on another date agreed to by the Administrative Agent and the Borrower (such date referred to as
the “Commitment Increase Effective Date”).


          (c) On each Commitment Increase Effective Date, to the extent that there are Loans outstanding
as of such date, (i) each CI Lender shall, by wire transfer of immediately available funds, deliver
to the Administrative Agent such CI Lender’s New Funds Amount,



Page 22









 








which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to the
Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the
Administrative Agent shall, by wire transfer of immediately available funds, pay to each then
Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage
Lender, shall constitute a prepayment by the Borrower pursuant to Section 2.3, ratably in
accordance with the respective principal amounts thereof, of the principal amounts of all then
outstanding Loans of such Reducing Percentage Lender, and (iii) the Borrower shall be responsible
to pay to each Lender any breakage fees or costs in connection with the reallocation of any
outstanding Loans.



          (d) For purposes of this Section, the following defined terms shall have the following
meanings: (1) “New Funds Amount” means the amount equal to the product of a Lender’s
increased Commitment or a CI Lender’s Commitment (as applicable) represented as a percentage of the
total amount of the Commitments after giving effect to the Commitment Increase, times the aggregate
principal amount of the outstanding Loans immediately prior to giving effect to the Commitment
Increase, if any, as of a Commitment Increase Effective Date (without regard to any increase in the
aggregate principal amount of Loans as a result of borrowings made after giving effect to the
Commitment Increase on such Commitment Increase Effective Date); (2) “Reducing Percentage
Lender” means each then existing Lender immediately prior to giving effect to the Commitment
Increase that does not increase its respective Commitment as a result of the Commitment Increase
and whose relative percentage of the total amount of the Commitments shall be reduced after giving
effect to such Commitment Increase; and (3) “Reduction Amount” means the amount by which a
Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment Increase Effective Date
(without regard to the effect of any borrowings made on such Commitment Increase Effective Date
after giving effect to the Commitment Increase).


          (e) Each Commitment Increase shall become effective on its Commitment Increase Effective Date
and upon such effectiveness (i) the Administrative Agent shall record in its records the CI
Lender’s information as provided in the Notice of Commitment Increase and pursuant to an
Administrative Questionnaire in form satisfactory to the Administrative Agent that shall be
executed and delivered by each CI Lender to the Administrative Agent on or before the Commitment
Increase Effective Date, (ii) Schedule II hereof shall be amended and restated to set forth all
Lenders (including any CI Lenders) that will be Lenders hereunder after giving effect to such
Commitment Increase (which shall be set forth in Annex Ito the applicable Notice of Commitment
Increase) and the Administrative Agent shall distribute to each Lender (including each CI Lender) a
copy of such amended and restated Schedule II, and (iii) each CI Lender identified on the Notice of
Commitment Increase for such Commitment Increase shall be a “Lender” for all purposes under this
Agreement.



     SECTION 2.10 Extension of Maturity Date.


          (a) Not earlier than 90 days prior to, nor later than 30 days prior to, each anniversary of
the Closing Date (provided, that the Borrower may not exercise such right more than twice), the
Borrower may, upon notice to the Administrative Agent (who shall promptly notify the Lenders),
request a one-year extension of the Maturity Date then in effect (“Extension Request”).
Within 15 days of delivery of such Extension Request, each Lender shall notify the



Page 23









 








Administrative Agent and the Borrower whether or not it consents to such Extension Request
(which consent may be given or withheld in such Lender’s sole and absolute discretion). Any Lender
with a then effective Commitment may consent to an Extension Request irrespective of whether such
Lender previously had not been a Consenting Lender (as defined below) with respect to a previous
Extension Request (a “Non-Consenting Lender”). Any Lender not responding within the above
specified time period shall be deemed not to have consented to such Extension Request. The
Administrative Agent shall promptly notify the Borrower and the Lenders of the Lenders’ responses.



          (b) The Maturity Date shall be extended only if the Required Lenders (calculated excluding any
Defaulting Lender and prior to giving effect to any replacements of Lenders permitted herein) (the
“Consenting Lenders”) have consented to the Extension Request. For each such Extension
Request, if so approved, (i) the Maturity Date, as to Consenting Lenders (irrespective of whether
such Lender previously had been a Non-Consenting Lender), shall be extended to the same date in the
following year after giving effect to any prior extensions (such existing Maturity Date being the
“Extension Effective Date”), and (ii) the Maturity Date, as to any Non-Consenting Lender,
shall remain the Maturity Date in effect for such Non-Consenting Lender prior to the Extension
Effective Date. With respect to any previously Non-Consenting Lender who is a Consenting Lender
with respect to a current Extension Request, by giving its consent, such Consenting Lender shall be
approving an extension of more than one year. Non-Consenting Lenders shall remain Lenders until
the Maturity Date applicable to such Lender at which time (and irrespective of the pro rata
requirements under Sections 4.8 and 4.9 hereof) the Borrower shall repay all Loans owing to such
Lender. The Administrative Agent and the Borrower shall promptly confirm to the Lenders such
extension of the Maturity Date, specifying the date of such confirmation (the “Extension
Confirmation Date”), the Extension Effective Date, and the extended Maturity Date with respect
to the Consenting Lenders. As a condition precedent to such extension, the Borrower shall deliver
to the Administrative Agent a certificate of the Borrower dated as of the Extension Confirmation
Date signed by an Authorized Officer of the Borrower certifying that, (i) before and after giving
effect to such extension, the representations and warranties contained in Article VI made by it are
true and correct on and as of the Extension Confirmation Date, except to the extent that such
representations and warranties specifically refer to an earlier date, (ii) before and after giving
effect to such extension no Default exists or will exist as of the Extension Confirmation Date, and
(iii) no Material Adverse Effect has occurred through the Extension Confirmation Date.



     SECTION 2.11 Letters of Credit.


          (a) General. Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its own account, in a form reasonably acceptable to
the applicable Issuing Bank, at any time and from time to time during the Availability Period;
provided that no Letter of Credit shall be issued if (i) the aggregate LC Exposure would exceed
$500,000,000 or (ii) the total Revolving Credit Exposures would exceed the Total Commitment. In
the event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.



Page 24









 







          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to such Issuing Bank
and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s
standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of
each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension the aggregate amount of the Revolving
Credit Exposures of all Lenders shall not exceed the total Commitments. Each issuance, amendment,
renewal or extension of a Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in Section 5.2.1.


          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit, provided that any Letter of Credit may provide for the renewal thereof for additional one
year periods (which shall in no event extend beyond the date referred to in clause (ii) hereof) and
(ii) the date that is five Business Days prior to the then effective Maturity Date.


          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank,
such Lender’s Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by
the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence
and continuance of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.


          (e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon,



Page 25









 








Central time, on the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., Central time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such date, then not later
than 12:00 noon, Central time, on (i) the Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., Central time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such notice, if such notice
is not received prior to such time on the day of receipt; provided that the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with Section 2.5.1 that such
payment be financed with a Base Rate Loan in an equivalent amount and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Borrowing. If the Borrower fails to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender’s Percentage thereof. Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Percentage of the payment then due from the
Borrower, in the same manner as provided with respect to Revolving Loans made by such Lender, and
the Administrative Agent shall promptly pay to such Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to such
Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse such Issuing Bank for
any LC Disbursement (other than the funding of Base Rate Loans pursuant to Section 2.5.1 as
contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.



          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to consequential damages, claims in



Page 26









 








respect of which are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.



          (g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing
Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.


          (h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to Base Rate Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section
3.2.2 shall apply. Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant
to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.


          (i) Replacement of the Issuing Bank. Any Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 3.3.3.
From and after the effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of such Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.



Page 27









 







          (j) Cash Collateralization. If the Obligations have become immediately due and
payable pursuant to Article VIII, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall Cash
Collateralize the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to Cash Collateralize such amounts shall become effective immediately,
and such Cash Collateral shall become immediately due and payable, without demand or other notice
of any kind, upon the Obligations having become immediately due and payable as a result of an Event
of Default with respect to the Borrower described in Section 8.1.9. Such deposit shall be held by
the Administrative Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any interest earned on
the investment of Cash Collateral, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits of
Cash Collateral shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Cash Collateral shall be applied by the Administrative Agent to
reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total
LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement.



     SECTION 2.12 Foreign Borrowers.


          SECTION 2.12.1 Subject to the terms and conditions set forth herein, the Borrower shall have
the right, from time to time, with the prior consent of the Administrative Agent, to request that
one or more Lenders allocate any portion of the then-available Total Commitments (each such
allocation being a “Foreign Borrower Sub-Facility”) to one or more of its Subsidiaries as a
Foreign Borrower. Each Lender may chose to participate or not participate in a Foreign Borrower
Sub-Facility in its sole discretion. Each Lender electing to participate in a Foreign Borrower
Sub-Facility may further chose to participate through branches or Affiliates located in the
jurisdiction in which the Foreign Borrower is located. Participation in the Foreign Borrower
Sub-Facility need not be ratable and to the extent a Lender elects to participate in a Foreign
Borrower Sub-Facility when all other Lenders are not participating in such Foreign Borrower
Sub-Facility, the obligation of such Lender to make Loans and participate in Letter of Credit
issued for the Borrower and all other Foreign Borrowers shall be adjusted accordingly so that its
total Revolving Credit Exposures does not exceed its Commitment. The provisions of Article IV
shall apply mutatis mutandis to any obligation of a Lender to make Loans to or participate in
Letters of Credit issued for the account of a Foreign Borrower.


          (a) Upon the execution and delivery by any Foreign Borrower of a supplement to this Agreement,
in substantially the form of Exhibit 2.12 hereto (an “Agreement Supplement”) with such
changes and modifications thereto as may be required by the laws of any applicable foreign
jurisdiction, such Person shall be referred to as a “Foreign Borrower” and shall be and become a
Foreign Borrower, and each reference in this Agreement to a “Foreign



Page 28









 








Borrower” shall also mean and be a reference to such Foreign Borrower and each reference in
any other Loan Document to a “Foreign Borrower” shall also mean and be a reference to such Foreign
Borrower. In no event shall the Administrative Agent, the Lenders and the Issuing Banks be
obligated to make Loans to a Foreign Borrower or issue Letters of Credit for the account of any
such Foreign Borrower without receiving, at least 5 Business Days prior to the Agreement
Supplement, all documentation and other information relating to such Foreign Borrower requested by
them for purposes of ensuring compliance with applicable “know your customer” and anti-money
laundering rules and regulations, including the U.S. Patriot Act.



          (b) A borrowing by a Foreign Borrower shall only be in U.S. Dollars and no Letter of Credit
shall be issued on account of any Foreign Borrower in any currency other than U.S. Dollars.


          SECTION 2.12.2 The obligation of any Lender to make any Loan to, or any Issuing Bank to issue
any Letter of Credit for the account of, each Foreign Borrower following its designation as a
Foreign Borrower hereunder is subject to the following:


          (a) The Administrative Agent (or its counsel) shall have received a counterpart of the
Agreement Supplement signed on behalf of such Borrower, in substantially the form of Exhibit 2.12
hereto.


          (b) The Administrative Agent shall have received, on behalf of itself, the Lenders and each
Issuing Bank, a fully executed, irrevocable, unconditional payment guarantee by the Borrower of all
obligations of such Foreign Borrower under this Agreement and its Agreement Supplement.


          (c) The Administrative Agent shall have received, on behalf of itself, the Lenders and each
Issuing Bank, corporate documents, resolutions and other items required under Sections 5.1.2 and
5.1.3 and favorable legal opinions, dated as of the date of such Agreement Supplement, relating to
the guarantee by the Borrower and obligations of such Foreign Borrower as otherwise described in
Section 5.1.4.


          (d) In connection with any Loan to, any Letter of Credit issued for the account of, each
Foreign Borrower, the conditions set forth in Section 5.2 shall be satisfied.


          SECTION 2.12.3 The Borrower shall have the right to cause any Foreign Borrower to cease to be
a Foreign Borrower, provided, that the Borrower gives not less than[five (5)] Business Days’ notice
to the Administrative Agent and has repaid (or caused such Foreign Borrower to repay) all
obligations of such Foreign Borrower.



     SECTION 2.13 Defaulting Lenders.



     Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:


          (a) Facility fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 3.3.1;



Page 29









 







          (b) the Commitment of such Defaulting Lender shall not be included in determining whether all
Lenders or the Required Lenders have taken or may take any action hereunder (including any consent
to any amendment or waiver pursuant to Section 10.01), provided that any waiver, amendment or
modification that (x) reduces the amounts of any fees payable hereunder or the amount of principal
of or the rate at which interest is payable on the Loans, (y) increases the Defaulting Lender’s
Commitment or (z) extends the dates fixed for payments of principal or interest on the Loans shall
require the approval or consent of such Defaulting Lender;


          (c) if any LC Exposure exist at the time a Lender becomes a Defaulting Lender then:




	 	(i)	 	all or any part of such LC Exposure shall be
reallocated ratably among the non-Defaulting Lenders in accordance with
their respective Commitment Percentages (determined without regard to
such Defaulting Lender’s Commitment Percentage) and this obligation to
reallocate shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense
to reallocation that any non-Defaulting Lender may have or have had
against an Issuing Bank, the Borrower or any other Lender (including
the Defaulting Lender); provided that such LC Exposure shall be
reallocated among the non-Defaulting Lenders only to the extent that
(x) the sum of all non-Defaulting Lenders’ Loans and all non-Defaulting
Lenders’ LC Exposure plus such Defaulting Lender’s LC Exposure does not
exceed the total of all non-Defaulting Lenders’ Commitments, (y) the
sum of each non-Defaulting Lender’s Loans and such non-Defaulting
Lender’s LC Exposure plus its reallocated share of such Defaulting
Lender’s LC Exposure does not exceed such non-Defaulting Lender’s
Commitment and (z) the conditions set forth in Section 5.2 are
satisfied at such time;
	 
	 	(ii)	 	if the reallocation described in clause (i)
above cannot, or can only partially, be effected, the Borrower shall,
within one Business Day following notice by the Administrative Agent,
Cash Collateralize such Defaulting Lender’s LC Exposure (determined
after giving effect to any partial reallocation pursuant to clause (i)
above and any Cash Collateral provided by such Defaulting Lender) in
accordance with procedures set forth in Section 2.11(j) for so long as
such LC Exposure are outstanding;
	 
	 	(iii)	 	if the Borrower Cash Collateralizes any
portion of such Defaulting Lender’s LC Exposure pursuant to this
Section 2.13(c), the Borrower shall not be required to pay any fees to
such Defaulting Lender pursuant to Section 3.3.3 with respect to such
Defaulting Lender’s LC Exposure during the period such Defaulting
Lender’s LC Exposure is Cash Collateralized;




Page 30









 






	 	(iv)	 	if the LC Exposure of the non-Defaulting
Lenders are reallocated pursuant to this Section 2.13(c), then the fees
payable to the Lenders pursuant to Section 3.3.3 shall be adjusted in
accordance with such non-Defaulting Lenders’ Commitment Percentages;
and
	 
	 	(v)	 	to the extent that any Defaulting Lender’s LC
Exposure are neither Cash Collateralized nor reallocated pursuant to
Section 2.13(c), then, without prejudice to any rights or remedies of
an Issuing Bank or any Lender hereunder, the portion of Letter of
Credit fees payable under Section 3.3.3 corresponding to such
Defaulting Lender’s LC Exposure that are neither so Cash Collateralized
nor reallocated shall be payable to an Issuing Bank until such LC
Exposure are Cash Collateralized and/or reallocated;




          (d) so long as any Lender is a Defaulting Lender, an Issuing Bank shall not be required to
issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure
will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral that
will be provided by the Borrower or such Defaulting Lender in accordance with Section 2.13(c), and
participating interests in any such newly issued or increased Letter of Credit shall be allocated
among non-Defaulting Lenders in a manner consistent with Section 2.13(c)(i) (and Defaulting Lenders
shall not participate therein); and


          (e) any amount payable to such Defaulting Lender hereunder (whether on account of principal,
interest, fees or otherwise and including any amount that would otherwise be payable to such
Defaulting Lender) shall, to the extent permitted by applicable law, in lieu of being distributed
to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and,
subject to any applicable requirements of law, be applied at such time or times as may be
determined by the Administrative Agent (i) first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; (ii) second, to the payment of any amounts
owing by such Defaulting Lender to any Issuing Bank hereunder, (iii) third, to the funding of any
Loan or the funding or Cash Collateralization of any participating interest in any Letter of Credit
in respect of which such Defaulting Lender has failed to fund its portion thereof as required by
this Agreement, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in
such account as Cash Collateral for future funding obligations of the Defaulting Lender under this
Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Lenders as a result of
any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vi)
sixth, so long as no Event of Default then exists, to the payment of any amounts owing to the
Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower
against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement and (vii) seventh, to such Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal
amount of any Loans or reimbursement obligations in respect of Letter of Credit Disbursements of
which a Defaulting Lender has not funded its participation obligations and (y) made at a time when
the conditions set forth in Section 5.2 are satisfied or waived, such payment shall be applied
solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders
pro rata prior to being



Page 31









 








applied to the prepayment of any Loans, or reimbursements obligations owed to, any Defaulting
Lender.



          (f) In the event that the Administrative Agent, the Borrower and an Issuing Bank each agrees
that a Defaulting Lender has adequately remedied all matters that caused such Lender to be
Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion
of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of
the other Lenders as necessary in order for such Lender to hold such Loans in accordance with its
Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender;
and provided, further, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.



ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES




     SECTION 3.1 Repayments and Prepayments. The Borrower shall repay in full the unpaid principal
amount of each Loan on the Maturity Date. Prior thereto, the Borrower


          (a) may, from time to time on any Business Day, make a voluntary prepayment, in whole or in
part, of the outstanding principal amount of any Loans; provided, however, that (i) any such
prepayment shall be applied to the Lenders among Loans having the same Type and, if applicable,
having the same Interest Period; (ii) all such voluntary prepayments of Revolving Loans shall
require at least three Business Days’ prior written notice to the Administrative Agent; (iii) all
such voluntary prepayments of Swingline Loans shall be permitted on the same day as written notice
is received by the Administrative Agent and the Swingline Lender; and (iv) except in the case of a
prepayment pursuant to Section 3.1(c), all such voluntary partial prepayments shall be in an
minimum amount of $5,000,000 and an integral multiple of $1,000,000;


          (b) shall, immediately upon any acceleration of the Maturity Date pursuant to Section 8.2 or
Section 8.3, repay all Loans unless, pursuant to Section 8.3, only a portion of all Loans is so
accelerated; and


          (c) at any time when the aggregate amount of the Revolving Credit Exposures of all Lenders
exceeds the Commitment Amount then in effect, shall (i) first, immediately prepay outstanding Loans
in an amount equal to such excess and (ii) second, if after giving effect to the prepayment
required in clause (i) above, the aggregate amount of the Revolving Credit Exposures of all Lenders
still exceeds the Commitment Amount then in effect, immediately Cash Collateralize such Revolving
Credit Exposure in conformity with Section 2.11(j) in an amount equal to such remaining excess.



     Each prepayment of any Loans made pursuant to this Section shall be without premium or
penalty, except as may be required by Section 4.4. No voluntary prepayment of principal of any
Loans shall cause a reduction in the Commitments or the Commitment Amount.



Page 32









 





     SECTION 3.2 Interest Provisions. Interest on the outstanding principal amount of
Loans shall accrue and be payable in accordance with this Section 3.2.


          SECTION 3.2.1 Rates. Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, the Borrower may elect that Loans comprising a Borrowing accrue
interest at a rate per annum: (a) on that portion maintained from time to time as a Base Rate Loan,
equal to the Base Rate plus the Applicable Margin for Base Rate Loans, if any, from time to time in
effect; (b) on that portion maintained as a Eurodollar Loan, during each Interest Period applicable
thereto, equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable
Margin for Eurodollar Loans; and (c) on that portion maintained from time to time as an ASK Rate
Loan, equal to the ASK Rate from time to time in effect plus the Applicable Margin for Eurodollar
Loans. All Eurodollar Borrowings shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurodollar Borrowing.


          SECTION 3.2.2 Post-Maturity Rates. After the date any principal amount of any Loan is
due and payable (whether on the Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation, including, without limitation, the payment of interest, fees or any other
amounts under this Agreement or the other Loan Documents) of the Borrower shall have become due and
payable, the Borrower shall pay, but only to the extent permitted by law, interest (after as well
as before judgment) on such amounts at a rate per annum equal to the Base Rate plus the Applicable
Margin for Base Rate Loans, if any, plus the Default Margin; provided, however, notwithstanding the
foregoing, that interest for a Eurodollar Loan shall accrue for the then effective Interest Period
at a rate per annum equal to the Eurodollar Rate currently applicable to such Eurodollar Loan plus
the Default Margin.


          SECTION 3.2.3 Payment Dates. Interest accrued on each Borrowing shall be payable,
without duplication on the following dates (each a “Payment Date”): (a) on the Maturity
Date; (b) on the date of any payment or prepayment, in whole or in part, of principal outstanding
on such Loan (including any and all Swingline Loans) on the amount of such principal prepaid or
repaid; (c) with respect to Base Rate Loans (other than Swingline Loans), on each Quarterly Payment
Date occurring after the Effective Date; (d) with respect to Eurodollar Borrowings, on the last day
of each applicable Interest Period (and, if such Interest Period shall exceed three months, every
three months from the first day of such Interest Period); (e) with respect to any portion of Base
Rate Loans converted into Eurodollar Loans on a day when interest would not otherwise have been
payable pursuant to clause (c), on the date of such conversion; and (f) on that portion of any
Borrowings the Maturity Date of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.



     SECTION 3.3 Fees. The Borrower agrees to pay the fees set forth in this Section 3.3.
All such fees shall be non-refundable.


          SECTION 3.3.1 Facility Fees. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee in an amount equal to the product of the Applicable
Facility Fee Rate times such Lender’s Commitment during the period from and including the Effective
Date to but excluding the later of the date on which such



Page 33









 








Lender’s Commitment terminates. Accrued facility fees shall be payable in arrears on each
Quarterly Payment Date thereafter and on the Maturity Date.



          SECTION 3.3.2 Fees. The Borrower agrees to pay to the Administrative Agent for its
own account all fees due pursuant to that certain letter, dated September 21, 2011 between the
Borrower, the Administrative Agent and J.P. Morgan Securities LLC, as amended from time to time
(the “Fee Letter”).


          SECTION 3.3.3 Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with respect to its
participations in Financial Letters of Credit, which shall accrue at the same Applicable Margin
then in effect used to determine the interest rate applicable to Eurodollar Loans on the average
daily amount of such Lender’s LC Exposure attributable to Financial Letters of Credit (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC Exposure; (ii) to the
Administrative Agent for the account of each Lender, a participation fee with respect to
Performance Letters of Credit at the per annum rate set forth below then in effect on the face
amount of each such Performance Letter of Credit, such commission to be shared ratably among the
Lenders having participation interests therein and payable quarterly in arrears and (iii) to each
Issuing Bank a fronting fee which shall accrue at the rate of .150% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) applicable to such Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as such Issuing Bank’s standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including the last day of
March, June, September and December of each year shall be payable on the third (3) Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be payable on demand.
Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within ten
(10) days after demand. All participation fees and fronting fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).



	 	 	 
	Applicable	 	Performance Letter of
	Ratings Level	 	Credit Fee
	Level I
	 	50.000
	Level II
	 	53.750
	Level III
	 	58.750
	Level IV
	 	70.000
	Level V
	 	72.500






     SECTION 3.4 Payment Office. The Borrower shall make all payments to the
Administrative Agent at the Payment Office.



Page 34









 





ARTICLE IV

CERTAIN EURODOLLAR AND OTHER PROVISIONS




     SECTION 4.1 Eurodollar Lending Unlawful. If any Lender shall determine (which
determination shall, upon notice thereof to the Borrower and the Lenders, be conclusive and binding
on the Borrower) that the introduction of or any change in or in the interpretation of any law
makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful,
for such Lender to make, continue or maintain any Borrowing as, or to convert any Borrowing into, a
Eurodollar Borrowing, the obligations of such Lender to make, continue, maintain or convert any
such Borrowings shall, upon such determination, forthwith be suspended until such Lender shall
notify the Administrative Agent that the circumstances causing such suspension no longer exist, and
all Eurodollar Borrowings of such Lender shall automatically convert into Base Rate Loans at the
end of the then current Interest Periods with respect thereto or sooner, if required by such law or
assertion; provided, however, that the obligation of such Lender to make, continue, maintain or
convert any such Eurodollar Borrowings shall remain unaffected if such Lender can designate a
different Eurodollar Office for the making, continuance, maintenance or conversion of Eurodollar
Borrowings and such designation will not, in the sole discretion of such Lender, be otherwise
disadvantageous to such Lender.



     SECTION 4.2 Deposits Unavailable or Eurodollar Interest Rate Unascertainable. If the
Administrative Agent shall have determined that, by reason of circumstances affecting the
Administrative Agent’s relevant market, adequate means do not exist for ascertaining the interest
rate applicable hereunder to Eurodollar Borrowings, then, upon notice from the Administrative Agent
to the Borrower and the Lenders, the obligations of all Lenders under Section 2.5.2 and Section 2.6
to make or continue any Borrowings as, or to convert any Borrowings into, Eurodollar Borrowings
shall forthwith be suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.



     SECTION 4.3 Increased Eurodollar Borrowing Costs, etc. The Borrower agrees to
reimburse each Lender and Issuing Bank for any increase in the cost to such Lender or Issuing Bank
of, or any reduction in the amount of any sum receivable by such Lender or Issuing Bank in respect
of, making, continuing or maintaining (or of its obligation to make, continue or maintain) any
Borrowings as, or of converting (or of its obligation to convert) any Borrowings into, Eurodollar
Borrowings or participating in, issuing or maintaining any Letter of Credit. Such Lender or
Issuing Bank shall promptly notify the Administrative Agent and the Borrower in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the reasons therefor and
the additional amount required fully to compensate such Lender or Issuing Bank for such increased
cost or reduced amount; provided, however, that such Lender or Issuing Bank shall designate a
different Eurodollar Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole discretion of such Lender or Issuing Bank, be otherwise
disadvantageous to such Lender. Such additional amounts shall be payable by the Borrower directly
to such Lender or Issuing Bank within fifteen days of its receipt of such notice, and such notice
shall be rebuttable presumptive evidence of the amount payable by the Borrower.



     SECTION 4.4 Funding Losses. In the event any Lender shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or reemployment of deposits



Page 35









 





or other funds acquired by such Lender to make, continue or maintain any portion of the
principal amount of any Borrowing as, or to convert any portion of the principal amount of any
Borrowing into, a Eurodollar Borrowing) as a result of (a) any conversion or repayment or
prepayment of the principal amount of any Eurodollar Borrowings on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to Section 3.1 or otherwise,
(b) any Borrowings not being made as Eurodollar Borrowings in accordance with the Borrowing Request
therefor, (c) any Borrowings not being continued as, or converted into, Eurodollar Borrowings in
accordance with the Continuation/Conversion Notice, or (d) the assignment of any Eurodollar
Borrowing other than on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 4.10, then, upon the written notice of such Lender to
the Borrower (with a copy to the Administrative Agent), the Borrower shall, within fifteen days of
its receipt thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense. Such written notice
(which shall include calculations in reasonable detail) shall be rebuttable presumptive evidence of
the amount payable by the Borrower.




     SECTION 4.5 Increased Capital Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any court, central bank,
regulator or other governmental authority affects or would affect the amount of capital required or
expected to be maintained by any Lender or any Issuing Bank or any Person controlling such party,
and such Lender or Issuing Bank determines (in its sole discretion) that the rate of return on its
or such controlling Person’s capital as a consequence of its Commitments or the Borrowings made by
such Lender or Issuing Bank is reduced to a level below that which such Lender or Issuing Bank or
such controlling Person could have achieved but for the occurrence of any such circumstance, then,
in any such case upon notice from time to time by such Lender or Issuing Bank to the Borrower, the
Borrower shall pay directly to such Lender or Issuing Bank, within fifteen days, additional amounts
sufficient to compensate such Lender or Issuing Bank or such controlling Person for such reduction
in rate of return; provided, however, that such Lender or Issuing Bank shall designate a different
Domestic or Eurodollar Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the sole discretion of such Lender or Issuing Bank, be otherwise
disadvantageous to such Lender or Issuing Bank. A statement of such Lender or Issuing Bank as to
any such additional amount or amounts (including calculations thereof in reasonable detail) shall
be rebuttable presumptive evidence of the amount payable by the Borrower. In determining such
amount, such Lender or Issuing Bank may use any reasonable method of averaging and attribution that
it (in its sole discretion) shall deem applicable. For the purposes of this Section 4.5, the Dodd
Frank Wall Street Reform and Consumer Protection Act, Basel III and all rules, regulations, orders,
requests, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or
foreign regulatory authorities in connection therewith are deemed to have been adopted and gone
into effect after the date of this Agreement. Failure or delay on the part of any Lender or
Issuing Bank to demand compensation pursuant to this Section 4.5 shall not constitute a waiver of
such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender or Issuing Bank pursuant to this Section 4.5 for any
increased costs incurred or reductions suffered more than 90 days prior to the date that such
Lender or Issuing Bank, as the case may be, notifies the Borrower of the change in law



Page 36









 





giving rise to such increased costs or reductions, and of such Lender’s or Issuing Bank’s
intention to claim compensation therefor (except that, if the change in law giving rise to such
increased costs or reductions is retroactive, then the 90 day period referred to above shall be
extended to include the period of retroactive effect thereof).




     SECTION 4.6 Taxes.


          SECTION 4.6.1 All payments by the Borrower of principal of, and interest on, the Borrowings
and all other amounts payable hereunder shall be made free and clear of and without deduction for
any Taxes. In the event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will, within fifteen days (a) pay directly to the relevant authority
the full amount required to be so withheld or deducted; (b) promptly forward to the Administrative
Agent an official receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and (c) to the extent that the withholding or deduction
is made on account of Indemnified Taxes, pay to the Administrative Agent for the account of each
applicable Lender or Issuing Bank such additional amount or amounts as is necessary to ensure that
the net amount actually received by each Lender and Issuing Bank will equal the full amount such
Lender or Issuing Bank would have received had no such withholding or deduction been required. A
statement of such Lender or Issuing Bank as to any such amount or amounts (including calculations,
in reasonable detail, showing how such Lender or Issuing Bank computed such amount or amounts)
shall be promptly furnished by such Lender or Issuing Bank to the Borrower and shall be rebuttable
presumptive evidence of such amount or amounts.


          SECTION 4.6.2 If any Indemnified Taxes are directly asserted against the Administrative Agent,
any Lender or any Issuing Bank with respect to any payment received by the Administrative Agent,
such Lender or such Issuing Bank hereunder, the Administrative Agent, such Lender or such Issuing
Bank may pay such Indemnified Taxes and the Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Indemnified Taxes (including any Taxes on such
additional amount) shall equal the amount such person would have received had not such Taxes been
asserted; provided that the Borrower will not be obligated to pay such additional amounts to the
Administrative Agent, such Lender or such Issuing Bank to the extent that such additional amounts
shall have been incurred as a consequence of the Administrative Agent’s, such Lender’s, or such
Issuing Bank’s gross negligence or willful misconduct, as the case may be.


          SECTION 4.6.3 If the Borrower fails to pay any Indemnified Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account of the respective
Lenders or Issuing Banks, the required receipts or other required documentary evidence, the
Borrower shall indemnify such Lenders and Issuing Banks for any incremental Indemnified Taxes,
interest or penalties that may become payable by any Lender or Issuing Bank as a result of any such
failure. For purposes of this Section, a distribution hereunder by the Administrative Agent, any
Lender or any Issuing Bank to or for the account of any Lender or Issuing Bank shall be deemed a
payment by the Borrower.



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          SECTION 4.6.4 (i) Each Lender that is organized under the laws of a jurisdiction other than
the United States shall, prior to the due date of any payments of the Loans under this Agreement,
execute and deliver to the Borrower and the Administrative Agent, on or about the first scheduled
Payment Date in each Fiscal Year and as otherwise reasonably requested by the Borrower or the
Administrative Agent, one or more (as the Borrower or the Administrative Agent may reasonably
request) United States Internal Revenue Service Form W-8 BEN or Form W-8 ECI or such other forms or
documents (or successor forms or documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender is exempt from withholding or
deduction of Taxes, and shall (but only so long as such Lender remains lawfully able to do so)
deliver to the Borrower and the Administrative Agent additional copies of such forms on or before
the date that such forms expire or become obsolete or after the occurrence of an event requiring a
change in the most recent form so delivered by it and such amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or fees or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct of a trade or
business in the United States. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States withholding tax rate in excess of zero,
withholding tax at such rate shall be considered an “Excluded Tax”. For any period with
respect to which a Lender has failed to provide the Borrower and the Administrative Agent with the
forms required pursuant to this paragraph, if any (other than if such failure is due to a change in
treaty, law or regulation occurring subsequent to the date on which a form originally was required
to be provided), such Lender shall not be entitled to indemnification under this Section with
respect to Indemnified Taxes imposed by the United States which Indemnified Taxes would not have
been imposed but for such failure to provide such form.



     (ii) If any Lender or the Administrative Agent is a U.S. Person, such Lender or Administrative
Agent shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed originals of United
States Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal
backup withholding tax.


          SECTION 4.6.5 If the Borrower is required to pay additional amounts to or for the account of
any Lender or Issuing Bank pursuant to this Section, then such Lender or Issuing Bank will change
the jurisdiction of its applicable Eurodollar or Domestic Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the sole discretion of such
Lender or Issuing Bank, is not otherwise disadvantageous to such Lender or Issuing Bank. No Lender
or Issuing Bank shall be entitled to receive any greater payment under this Section as a result of
the designation by such Lender or Issuing Bank of a different applicable Eurodollar or Domestic
Office after the date hereof, unless such designation is made with the Borrower’s prior written
consent or by reason of the provisions of Sections 4.1, 4.3 or 4.5 requiring such Lender or Issuing
Bank to designate a different applicable Eurodollar or Domestic Office under certain circumstances
or at a time when the circumstances giving rise to such greater payment did not exist.




Page 38











 





          SECTION 4.6.6 If a payment made to a Lender or Issuing Bank under this Agreement or any
other Loan Document would be subject to U.S. federal withholding of Taxes imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or Issuing Bank
shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law
and at such time or times reasonably requested by either the Borrower or the Administrative Agent,
such documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by either the
Borrower or the Administrative Agent, as applicable, as may be necessary for either the Borrower or
the Administrative Agent, as applicable, to comply with its obligations under FATCA, to determine
that such Lender or Issuing Bank has complied with such Lender’s or Issuing Bank’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment.




          SECTION 4.6.7 Each Lender agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in writing of its legal
inability to do so.




          SECTION 4.6.8 If any party determines, in its sole discretion exercised in good faith, that it
has received a refund of any Taxes as to which it has been indemnified pursuant to this Sections
4.6, it shall pay to the indemnifying party an amount equal to such refund (but only to the extent
of indemnity payments made under this Section 4.6 with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without
interest (other than any interest paid by the relevant governmental authority with respect to such
refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such
indemnified party the amount paid over pursuant to this Section 4.6.8 (plus any penalties, interest
or other charges imposed by the relevant governmental authority) in the event that such indemnified
party is required to repay such refund to such governmental authority. This Section 4.6.8 shall
not be construed to require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes that it deems confidential) to the indemnifying party or any
other Person.




     SECTION 4.7 Special Fees in Respect of Reserve Requirements. With respect to
Eurodollar Borrowings, the Borrower agrees to pay to each Lender on appropriate Payment Dates, as
additional interest, such amounts as will compensate such Lender for any cost to such Lender, from
time to time, of any reserve, special deposit, special assessment or similar capital requirements
against assets of, deposits with or for the account of, or credit extended by, such Lender which
are imposed on, or deemed applicable by, such Lender, from time to time, under or pursuant to (i)
any Law, treaty, regulation or directive now or hereafter in effect (including, without limitation,
Regulation D of the Board of Governors of the Federal Reserve System but excluding any reserve
requirement included in the definition of Eurodollar Rate in Section 1.1), (ii) any interpretation
or application thereof by any governmental authority, agency or instrumentality charged with the
administration thereof or by any court, central bank or other fiscal, monetary or other authority
having jurisdiction over the Eurodollar Borrowings or the office of such Lender where its
Eurodollar Borrowings are lodged, or (iii) any requirement imposed or requested by any court,
governmental authority, agency or instrumentality or central



Page 39









 




bank, fiscal, monetary or other authority, whether or not having the force of law. A written
notice as to the amount of any such cost or any change therein (including calculations, in
reasonable detail, showing how such Lender computed such cost or change) shall be promptly
furnished by such Lender to the Borrower and shall be rebuttable presumptive evidence of such cost
or change. The Borrower will not be responsible for paying any amounts pursuant to this Section
accruing prior to 180 days prior to the receipt by the Borrower of the written notice referred to
in the preceding sentence. Within fifteen (15) days after such certificate is furnished to the
Borrower, the Borrower will pay directly to such Lender such additional amount or amounts as will
compensate such Lender for such cost or change.




     SECTION 4.8 Payments, Computations, etc.. Unless otherwise expressly provided, all
payments by the Borrower pursuant to this Agreement or any other Loan Document shall be made by the
Borrower to the Administrative Agent for the pro rata account of the Lenders entitled to receive
such payment; provided that payments with respect to Swingline Loans shall be for the account of
the Swingline Lender unless a Lender has funded its participation in such Swingline Loan, in which
case such payments shall be for the account of the funding Lender. All such payments required to
be made to the Administrative Agent shall be made, without setoff, deduction or counterclaim, not
later than 11:00 a.m., Central time, on the date due, in same day or immediately available funds,
to such account as the Administrative Agent shall specify from time to time by notice to the
Borrower. Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such payments received by the
Administrative Agent for the account of such Lender. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a year comprised of 360
days (or, in the case of interest on a Base Rate Loan, 365 days or, if appropriate, 366 days).
Whenever any payment to be made shall otherwise be due on a day which is not a Business Day, such
payment shall (except as otherwise required by clause (c) of the definition of the term “Interest
Period” with respect to Eurodollar Loans) be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in connection with such
payment.



     SECTION 4.9 Sharing of Payments. If any Lender shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any
Loan (other than pursuant to the terms of Sections 2.10(b), 4.1, 4.3, 4.4, 4.5 and 10.4) or
participation in LC Disbursements or Swingline Loans in excess of its pro rata share of payments
then or therewith obtained by all Lenders, such Lender shall purchase from the other Lenders such
participations in Revolving Loans and participations in LC Disbursements and Swingline Loans made
by them as shall be necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Lender’s ratable share (according to the proportion of (a) the amount
of such selling Lender’s required repayment to the purchasing Lender to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered.



Page 40









 




The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant
to this Section may, to the fullest extent permitted by law, exercise all its rights of payment
with respect to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set off to which this Section
applies, such Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.




     SECTION 4.10 Replacement of Lender on Account of Increased Costs, Eurodollar Lending
Unlawful, Reserve Requirements, Taxes, Certain Dissents, etc.. If (a) any Lender shall claim
the inability to make or maintain Eurodollar Borrowings pursuant to Section 4.1 above, (b) any
Lender is owed increased costs under Section 4.3 or Section 4.5 above, (c) any payment to any
Lender by the Borrower is subject to any withholding tax pursuant to Section 4.6 above, (d) any
Lender is owed any cost or expense pursuant to Section 4.7 above, (e) any Lender fails to agree to
extend the Maturity Date pursuant to Section 2.10 if the Required Lenders have agreed to do so, (f)
any Lender is a Defaulting Lender, or (g) in connection with any proposed amendment, modification,
waiver or consent with respect to the interest or fees charged under the Agreement requiring
consent of each Lender, the consent of the Required Lenders shall have been obtained, but the
consent of one or more of the other Lenders whose consent is required shall not have been obtained,
then the Borrower shall have the right, if no Event of Default or Default then exists, to replace
such Lender with another bank or financial institution provided that (i) if it is not a Lender or
an Affiliate thereof, such bank or financial institution shall be reasonably acceptable to the
Administrative Agent and the Issuing Banks and (ii) such bank or financial institution shall
unconditionally purchase, in accordance with Section 10.10 hereof, all of such Lender’s rights and
obligations under this Agreement and the other Loan Documents and the appropriate pro rata share of
such Lender’s Loans, LC Exposure, obligation to participate in Swingline Loans and Commitments,
without recourse or expense to, or warranty by, such Lender being replaced for a purchase price
equal to the aggregate outstanding principal amount of the Loans payable to such Lender, plus any
accrued but unpaid interest on such Loans, plus accrued but unpaid fees in respect of such Lender’s
Borrowings and such Lender’s Commitment hereunder to the date of such purchase on a date therein
specified. The Borrower shall be obligated to pay, simultaneously with such purchase and sale, the
increased costs, amounts, expenses and taxes under Sections 4.1, 4.2, 4.3, 4.5, 4.6, and 4.7 above,
any amounts payable under Section 4.4 and all other costs, fees and expenses payable to such Lender
hereunder and under the Loan Documents, to the date of such purchase as well as all other
Obligations due and payable to or for the benefit of such Lender; provided, that if such bank or
financial institution fails to purchase such rights and obligations, the Borrower shall continue to
be obligated to pay the increased costs, amounts, expenses and taxes under Sections 4.3, 4.5, 4.6,
and 4.7 above to such Lender.



     SECTION 4.11 Maximum Interest. It is the intention of the parties hereto to conform
strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the
obligations of the Borrower to the Administrative Agent and each Lender under this Agreement shall
be subject to the limitation that payments of interest shall not be required to the extent that
receipt thereof would be contrary to provisions of law applicable to the Administrative Agent or
such Lender limiting rates of interest which may be charged or collected



Page 41









 




by the Administrative Agent or such Lender. Accordingly, if the transactions contemplated
hereby would be usurious under applicable law (including the Federal and state laws of the United
States of America, or of any other jurisdiction whose laws may be mandatorily applicable) with
respect to the Administrative Agent or a Lender then, in that event, notwithstanding anything to
the contrary in this Agreement, it is agreed as follows: (a) the provisions of this Section shall
govern and control; (b) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, charged or received under this Agreement, or under any of
the other aforesaid agreements or otherwise in connection with this Agreement by the Administrative
Agent or such Lender shall under no circumstances exceed the maximum amount of interest allowed by
applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein
called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by the
Administrative Agent or such Lender (or, if such consideration shall have been paid in full, such
excess refunded to the Borrower); (c) all sums paid, or agreed to be paid, to the Administrative
Agent or such Lender for the use, forbearance and detention of the Indebtedness of the Borrower to
the Administrative Agent or such Lender hereunder shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full term of such Indebtedness until
payment in full so that the actual rate of interest is uniform throughout the full term thereof;
and (d) if at any time the interest provided pursuant to Section 4.1 together with any other fees
payable pursuant to this Agreement and the other Loan Documents and deemed interest under
applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount
of interest and any such fees to accrue to the Administrative Agent or such Lender pursuant to this
Agreement shall be limited, notwithstanding anything to the contrary in this Agreement to that
amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as
applicable, shall not reduce the interest to accrue to the Administrative Agent or such Lender
pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued
pursuant to this Agreement and such fees deemed to be interest equals the amount of interest which
would have accrued to the Administrative Agent or such Lender if a varying rate per annum equal to
the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of
fees which would have been received but for the effect of this Section. For purposes of Section
303.201 of the Texas Finance Code, as amended, to the extent, if any, applicable to the
Administrative Agent or a Lender, the Borrower agrees that the Highest Lawful Rate shall be the
“indicated (weekly) rate ceiling” as defined in said Section, provided that the Administrative
Agent or such Lender may also rely, to the extent permitted by applicable laws, on alternative
maximum rates of interest under other laws applicable to the Administrative Agent or such Lender if
greater. Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan
accounts and revolving tri-party accounts shall not apply to this Agreement or the other Loan
Documents.




ARTICLE V

CONDITIONS




     SECTION 5.1 Effective Date. This Agreement and the obligations of the Lenders to fund
the initial Borrowing and of any Issuing Bank to issue Letters of Credit hereunder shall become
effective on the date on which each of the conditions precedent set forth in this Section 5.1 are
satisfied or waived in writing by the Administrative Agent (with the consent of Required Lenders).



Page 42









 





          SECTION 5.1.1 Loan Documents. The Administrative Agent shall have received from each
party hereto either (i) a counterpart of this Agreement and each other required Loan Document
signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement and each required Loan Document. In addition, the
Administrative Agent shall have received a promissory note for each Lender requesting its Loans and
Commitments be evidence by a promissory note at least one (1) Business Day prior to the Closing
Date.




          SECTION 5.1.2 Resolutions, etc. The Administrative Agent shall have received from the
Borrower a certificate, dated the Effective Date, of its Secretary or Assistant Secretary as to (a)
resolutions of its Board of Directors then in full force and effect authorizing the execution,
delivery and performance of this Agreement and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of its Authorized Officers, upon which certificate each Lender
may conclusively rely until it shall have received a further certificate of the Secretary of the
Borrower canceling or amending such prior certificate.




          SECTION 5.1.3 Organic Documents, etc. The Administrative Agent shall have received
from the Borrower a certificate, dated the Effective Date, of an Authorized Officer certifying that
attached thereto are true, correct and complete copies of the Organic Documents of the Borrower,
together with all amendments thereto, and a certificate of good standing or equivalent document as
to the Borrower, certified by the appropriate governmental officer in its jurisdiction of
incorporation or formation, as well as any other information required by Section 326 of the USA
Patriot Act or necessary for the Administrative Agent or any Lender to verify the identity of the
Borrower as required by Section 326 of the USA Patriot Act.




          SECTION 5.1.4 Opinion of Counsel. The Administrative Agent shall have received a
favorable opinion, dated the Effective Date and addressed to the Administrative Agent and all
Lenders, from Thompson & Knight L.L.P., counsel to the Borrower, substantially in the form of
Exhibit 5.1.4 hereto.




          SECTION 5.1.5 Closing Fees, Expenses, etc. The Administrative Agent shall also have
received for its own account, or for the account of the Arrangers and each Lender, as the case may
be, all fees, costs and expenses due and payable pursuant to Sections 3.3 and 10.3, if then
invoiced.




          SECTION 5.1.6 Material Adverse Change; No Default. There shall have been no material
adverse change in the consolidated business, condition (financial or otherwise), operations,
performance or properties of any of the Borrower and its consolidated Subsidiaries taken as a whole
since June 30, 2011, except as disclosed in Item 5.1.6 (“Material Adverse Change”) of the
Disclosure Schedule. As of the Effective Date, no Default or Event of Default shall have then
occurred and be continuing.




          SECTION 5.1.7 Termination of 2006 Credit Agreement. Termination of all commitments and
payment of all amounts due under that certain Amended and Restated Credit Agreement, dated as of
November 30, 2006 Credit Agreement among the Borrower, the





Page 43









 







Administrative Agent and others, including, for the avoidance of doubt, each appendix thereto
together with all loan documentation relating thereto.




          SECTION 5.1.8 Other Documents. Such other documents as the Administrative Agent may
have reasonably requested.




     SECTION 5.2 All Borrowings. The obligation of each Lender to fund any Borrowing
(including the initial Borrowing) and of any Issuing Bank to issue, amend, renew or extend any
Letters of Credit hereunder (including any initial Letter of Credit) shall be subject to the
satisfaction of each of the conditions precedent set forth in this Section.



          SECTION 5.2.1 Compliance with Warranties, No Default, etc. Both before and after
giving effect to any Borrowing, the following statements shall be true and correct (a) the
representations and warranties set forth in Article VI (other than the representations contained in
Sections 6.6 and 6.7) shall be true and correct with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date); and (b) no Default or Event of Default shall have then
occurred and be continuing.




          SECTION 5.2.2 Borrowing Request. Each Borrowing and each issuance, amendment, renewal
or extension of a Letter of Credit shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) the statements made in Section 5.2.1 are
true and correct.




ARTICLE VI

REPRESENTATIONS AND WARRANTIES




     In order to induce the Lenders and the Administrative Agent to enter into this Agreement and
to make Loans hereunder and to participate in Letters of Credit and to induce each Issuing Bank to
issue Letters of Credit, the Borrower represents and warrants unto the Administrative Agent and
each Lender as set forth in this Article VI.



     SECTION 6.1 Organization, etc. The Borrower and each of its Subsidiaries is a
corporation, partnership, limited partnership or limited liability company validly organized and
existing and in good standing under the laws of the State of its incorporation, is duly qualified
to do business and is in good standing as a foreign entity in each jurisdiction where the nature of
its business requires such qualification, and has full power and authority and holds all requisite
governmental licenses, permits and other approvals to enter into and perform its Obligations under
this Agreement and each other Loan Document to which it is a party and to conduct its business
substantially as currently conducted by it (except where the failure to be so qualified to do
business or be in good standing or to hold any such licenses, permits and other approvals would not
reasonably be expected to cause a Material Adverse Effect).



     SECTION 6.2 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Borrower of this Agreement and each other Loan Document executed or to be
executed by it, and the Borrower’s participation in any transaction contemplated herein are within
the Borrower’s powers, have been duly authorized by all necessary corporate action, and



Page 44









 




do not (a) contravene the Borrower’s Organic Documents; (b) contravene any material
contractual restriction, law, governmental regulation or court decree or order, in each case
binding on or affecting the Borrower; or (c) result in, or require the creation or imposition of,
any Lien on any of the Borrower’s properties.




     SECTION 6.3 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or regulatory body or
other Person is required for the due execution, delivery or performance by the Borrower of this
Agreement or any other Loan Document to which it is a party, or for the Borrower’s participation in
any transaction contemplated herein, except as have been obtained and remain in full force and
effect. Neither the Borrower nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.



     SECTION 6.4 Validity; Enforceability, etc. This Agreement constitutes, and each other
Loan Document executed by the Borrower will, on the due execution and delivery thereof, constitute,
the legal, valid and binding obligations of the Borrower enforceable in accordance with their
respective terms except as (i) enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditor’s rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of general applicability.



     SECTION 6.5 Financial Information. The balance sheets of the Borrower and each of its
consolidated Subsidiaries as at June 30, 2011 and the related statements of earnings and cash flow,
copies of which have been furnished to the Administrative Agent and each Lender, have been prepared
in accordance with GAAP consistently applied, and present fairly the consolidated financial
condition of the corporations covered thereby as at the date thereof and the results of their
operations for the period then ended except as disclosed in Item 6.5 (“Financial
Information”) of the Disclosure Schedule.



     SECTION 6.6 No Material Adverse Change. As of the Effective Date, since the date of
the financial statements described in Section 6.5, there has been no material adverse change in the
financial condition, operations, assets, business or properties of the Borrower and its.
Subsidiaries (on a consolidated basis), except as disclosed in Item 5.1.6 (“Material Adverse
Change”) of the Disclosure Schedule.



     SECTION 6.7 Litigation, Labor Controversies, etc. As of the Effective Date, there is
no pending or, to the knowledge of the Borrower, threatened litigation, action, proceeding, or
labor controversy affecting the Borrower or any of its Subsidiaries, or any of their respective
properties, businesses, assets or revenues, which would reasonably be expected to cause a Material
Adverse Effect or which purports to affect the legality, validity or enforceability of, and the
rights and remedies of the Administrative Agent and the Lenders under, this Agreement or any other
Loan Document, except as disclosed in Item 6.7 (“Litigation”) of the Disclosure Schedule.



     SECTION 6.8 Subsidiaries. Schedule 6.8 sets forth the name, the identity or corporate
structure and the ownership interest of each direct or indirect Subsidiary as of the Effective
Date.



Page 45









 




As of the Effective Date, the Borrower does not have any Subsidiaries other than the
Subsidiaries identified in Schedule 6.8.




     SECTION 6.9 Taxes. The Borrower and each of its Subsidiaries which is a member of the
Borrower’s consolidated U.S. federal income tax group has filed all federal tax returns and reports
and all material state tax returns and reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books except such
returns and taxes for jurisdictions other than the United States with respect to which the failure
to file and pay such taxes would not reasonably be expected to cause a Material Adverse Effect.



     SECTION 6.10 Pension and Welfare Plans. During the twelve-consecutive-month period
prior to the date of the execution and delivery of this Agreement and prior to the date of any
Borrowing hereunder, no steps have been taken to terminate any Pension Plan, and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under
section 302(f) of ERISA, in either case which would reasonably be expected to cause a Material
Adverse Effect. No condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by the Borrower or any member of the Controlled
Group of any liability, fine or penalty which would reasonably be expected to cause a Material
Adverse Effect. As of the Effective Date, except as disclosed in Item 6.10 (“Employee Benefit
Plans”) of the Disclosure Schedule, neither the Borrower nor any member of the Controlled Group
has any contingent liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of ERISA.



     SECTION 6.11 Environmental Warranties and Compliance. The liabilities and costs of
the Borrower and its consolidated Restricted Subsidiaries related to compliance with applicable
Environmental Laws (as in effect on the date on which this representation is made or deemed made)
would not reasonably be expected to cause a Material Adverse Effect.



     SECTION 6.12 Regulation U. None of the Borrower and its Subsidiaries are engaged in
the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Loans will be used for a purpose which violates, or would be inconsistent with,
Regulation U.



     SECTION 6.13 Accuracy of Information. No certificate, statement or other information
delivered herewith or hereto by or on behalf of the Borrower in writing to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of a fact or omits to state any fact
known to the Borrower or its Subsidiaries necessary to make the statements contained herein or
therein not misleading as of the date made or deemed made, except to the extent that any untrue
statement or omission would not reasonably be expected to cause a Material Adverse Effect; provided
that, with respect to projected information, the Borrower only represents that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time.



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     SECTION 6.14 Use of Proceeds. The proceeds of each Borrowing shall be used for the
general corporate purposes of the Borrower and its Subsidiaries.



ARTICLE VII

COVENANTS




     SECTION 7.1 Affirmative Covenants. The Borrower agrees with the Administrative Agent
and each Lender that, until all Commitments have terminated and all Obligations have been paid and
performed in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower will perform the obligations set forth in
this Section 7.1.



          SECTION 7.1.1 Financial Information, Reports, Notices, etc. The Borrower will
furnish, or will cause to be furnished, to each Lender and the Administrative Agent copies of the
following financial statements, reports, notices and information:




          (a) as soon as available and in any event within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year of the Borrower, consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and consolidated statements of
earnings and cash flow of the Borrower and its Subsidiaries for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, certified by the chief financial Authorized Officer of the Borrower as having been
prepared in accordance with GAAP;




          (b) as soon as available and in any event within 75 days after the end of each Fiscal Year of
the Borrower, a copy of the annual audit report for such Fiscal Year for the Borrower and its
Subsidiaries, including therein consolidated balance sheets of the Borrower and its Subsidiaries as
of the end of such Fiscal Year and consolidated statements of earnings and cash flow of the
Borrower and its Subsidiaries for such Fiscal Year, in each case certified (without any
Impermissible Qualification) as having been prepared in accordance with GAAP in a manner acceptable
to the Administrative Agent and the Required Lenders by independent public accountants of
recognized national standing;




          (c) as soon as available and in any event at the time of each delivery of financial reports
under subsections (a) and (b) of this Section 7.1.1, a certificate, executed by the chief financial
Authorized Officer of the Borrower, showing (in reasonable detail and with appropriate calculations
and computations in all respects satisfactory to the Administrative Agent) compliance with the
financial covenants set forth in Section 7.2.3;




          (d) promptly, and in any event within three Business Days after an Authorized Officer of the
Borrower or any of its Subsidiaries becomes aware of the existence of the occurrence of each
Default, a statement of the chief executive officer or the chief financial Authorized Officer of
the Borrower setting forth details of such Default and the action which the Borrower has taken and
proposes to take with respect thereto;




          (e) promptly, and in any event within three Business Days after an Authorized Officer of the
Borrower or any of its Subsidiaries becomes aware of (x) the occurrence of any adverse development
with respect to any litigation, action, proceeding, or labor controversy





Page 47









 







described in Section 6.7 which would reasonably be expected to cause a Material Adverse
Effect, or (y) the commencement of any material labor controversy, litigation, action, proceeding
of the type described in Section 6.7 which would reasonably be expected to cause a Material Adverse
Effect, notice thereof and copies of all documentation relating thereto requested by the
Administrative Agent or any Lender;




          (f) promptly after the sending or filing thereof, copies of all reports and registration
statements which the Borrower or any of its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;




          (g) immediately upon becoming aware of the institution of any steps by the Borrower or any
other Person to terminate any Pension Plan, or the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a Lien under section 302(f) of ERISA, or
the taking of any action with respect to a Pension Plan which could result in the requirement that
the Borrower furnish a bond or other security to the PBGC or such Pension Plan, or the occurrence
of any event with respect to any Pension Plan which could result in the incurrence by the Borrower
of any liability, fine or penalty, or any increase in the contingent liability of the Borrower with
respect to any post-retirement Welfare Plan benefit which would reasonably be expected to cause a
Material Adverse Effect, notice thereof and copies of all documentation relating thereto; and




          (h) such other information respecting the condition or operations, financial or otherwise, of
the Borrower or any of its Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.




     To the extent any documents which are required to be delivered pursuant to Section 7.1.1 are
included in materials otherwise filed with the SEC, such documents may be delivered electronically
and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower
posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the
following website address: http://www.nobleenergyinc.com; or (ii) on which such documents are
posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver
such paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent of the posting of any such documents and the
Administrative Agent shall give prompt notice to the Lenders of the receipt by the Administrative
Agent of such notice. Notwithstanding anything contained herein, in every instance the Borrower
shall be required to provide paper copies of the compliance certificates required by Section 7.1.1
to the Administrative Agent. Except for such compliance certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.



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          SECTION 7.1.2 Compliance with Laws, etc. The Borrower will, and will cause each of
its Subsidiaries to, comply with all Laws, such compliance to include, without limitation: (a) the
maintenance and preservation of its corporate existence and qualification as a foreign corporation,
(b) the payment, before the same become delinquent, of all taxes, assessments and governmental
charges imposed upon it or upon its property except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books and (c) all Environmental Laws; except; in each case, where the
failure to so comply would not reasonably be expected to cause a Material Adverse Effect.




          SECTION 7.1.3 Maintenance of Properties. The Borrower will, and will cause each of
its Material Subsidiaries to, maintain, preserve, protect and keep its properties in good repair,
working order and condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection therewith may be
properly conducted at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable or unless failure to so
preserve, maintain, protect or keep its properties would not reasonably be expected to cause a
Material Adverse Effect.




          SECTION 7.1.4 Insurance. The Borrower will, and will cause each of its Material
Subsidiaries to, maintain or cause to be maintained with responsible insurance companies insurance
with respect to its properties and business against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses in similar locations.




          SECTION 7.1.5 Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect, in accordance with GAAP, all of
its business affairs and transactions and permit the Administrative Agent or its representatives,
at reasonable times and intervals and upon reasonable prior notice to the Borrower, to visit all of
its offices, to discuss its financial matters with its officers and employees and to examine any of
its books or other corporate records; provided, however, that prior notice to the Borrower shall
not be required if an Event of Default has occurred or is continuing.




          SECTION 7.1.6 Conduct of Business. The Borrower will, and will cause each Material
Subsidiary to, cause all material properties and businesses to be regularly conducted, operated,
maintained and developed in a good and workmanlike manner, as would a prudent operator and in
accordance with all applicable federal, state and local laws, rules and regulations, except for any
failure to so operate, maintain and develop that would not reasonably be expected to cause a
Material Adverse Effect.




     SECTION 7.2 Negative Covenants. The Borrower agrees with the Administrative Agent and
each Lender that, until all Commitments have terminated and all Obligations have been paid and
performed in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower will perform the obligations set forth in
this Section 7.2.



Page 49









 





          SECTION 7.2.1 Business Activities. The Borrower will not, and will not permit any of
its Subsidiaries to, engage in any business activity if, as a result thereof, the Borrower and its
Subsidiaries taken as a whole would no longer be principally engaged in the business of oil, gas
and energy exploration, development, production, processing and marketing and such activities as
may be incidental or related thereto.




          SECTION 7.2.2 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property,
revenues or assets, whether now owned or hereafter acquired, except:




          (a) Liens securing payment of the Obligations, granted pursuant to any Loan Document;




          (b) Liens for taxes, assessments or other governmental charges or levies not at the time
delinquent or thereafter payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set
aside on its books;




          (c) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the
ordinary course of business for sums not overdue more than 30 days or being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;




          (d) Liens incurred in the ordinary course of business in connection with workmen’s
compensation, unemployment insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders or bids, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to secure obligations on surety
or appeal bonds;




          (e) judgment Liens in existence less than 30 days after the entry thereof or with respect to
which execution has been stayed or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance companies;




          (f) Liens in favor of the United States of America or any state thereof or any department,
agency, instrumentality or political subdivision of any such jurisdiction to secure partial,
progress, advance or other payments pursuant to any contract or statute;




          (g) Liens required by any contract or statute in order to permit the Borrower or a Subsidiary
to perform any contract or subcontract made by it with or at the request of the United States of
America, any state or any department, agency or instrumentality or political subdivision of either;




          (h) Liens which exist prior to the time of acquisition upon any assets acquired by the
Borrower or any Subsidiary (including Liens on assets of any Person at the time of the acquisition
of the capital stock or assets of such Person or a merger with or consolidation with such Person by
the Borrower or a Subsidiary); provided that (i) the Lien shall attach solely to the assets so
acquired (or of the Person so acquired, merged or consolidated), and (ii) in the case of





Page 50









 







Liens securing Indebtedness, the aggregate principal amount of all Indebtedness of
Subsidiaries secured by such Liens shall be permitted by the limitations set forth in Section
7.2.4;




          (i) Liens securing Indebtedness owing by any Subsidiary to the Borrower;




          (j) Liens pursuant to partnership agreements, oil, gas and/or mineral leases, farm-out
agreements, division orders, contracts for the processing of oil, gas and/or other hydrocarbons,
unitization and pooling declarations and agreements, operating agreements, development agreements,
area of mutual interest agreements and other agreements which are customary in the oil, gas and
other mineral exploration, development and production business and in the business of processing of
gas and gas condensate production for the extraction of products therefrom;




          (k) Liens set forth on Schedule 7.2.2 which are existing on the Effective Date;




          (l) Liens on debt of or equity interests in a Person that is not a Subsidiary;




          (m) Liens on cash and cash equivalents to secure payment or performance under futures,
forwards or Hedging Obligations, and other obligations of a like nature, in each case in the
ordinary course of business;




          (n) Liens securing Indebtedness of the Borrower or its Subsidiaries incurred to finance the
acquisition, construction, or improvement, or capital lease of assets (including equipment);
provided that such Indebtedness when incurred shall not exceed the purchase price and costs, as
applicable, of acquisition, construction or improvement of the asset(s) financed and all fees,
costs and expenses relating thereto, including attorney and legal, accounting, expert, and
professional advisor fees and expenses;




          (o) any extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing clauses of this
Section or of any Indebtedness secured thereby; provided that in the case of Liens securing
Indebtedness, the principal amount of Indebtedness secured thereby shall not exceed the principal
amount of Indebtedness so secured at the time of such extension, renewal or replacement and that
such extension, renewal or replacement Lien shall be limited to all or part of substantially the
same property or revenue subject of the Lien extended, renewed or replaced (plus improvements on
such property); and




          (p) Liens upon assets of the Borrower and its Subsidiaries created after the date hereof not
otherwise permitted by this Section 7.2.4, provided that (i) the aggregate Indebtedness secured
thereby and incurred on or after the date hereof shall not exceed fifteen percent (15%) of
Consolidated Net Tangible Assets in the aggregate at any one time outstanding and (ii) that such
Liens do not encumber or attach to any equity interest in a Subsidiary.




          SECTION 7.2.3 Financial Covenant — Total Debt to Capitalization. The Borrower will
not permit the Total Debt to Capitalization Ratio, expressed as a percentage, to exceed 65% at any
time




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          SECTION 7.2.4 Subsidiary Indebtedness. The Borrower will not permit any of its
Subsidiaries to contract, create, incur or assume any Indebtedness for borrowed money, other than:




          (a) Indebtedness owing by a Subsidiary of the Borrower to the Borrower or any Subsidiary of
the Borrower;




          (b) purchase money Indebtedness to finance the acquisition, construction, or improvement, or
capital lease of assets (including equipment); provided that such Indebtedness when incurred shall
not exceed the purchase price and costs, as applicable, of acquisition, construction or improvement
of the asset(s) financed and all fees, costs and expenses relating thereto;




          (c) Indebtedness of a Subsidiary which exists prior to the time of acquisition of such
Subsidiary (including Indebtedness at the time of the acquisition of the capital stock or assets of
such Person or a merger with or consolidation with such Person by the Borrower or a Subsidiary) as
long as such Indebtedness was not created in anticipation thereof;




          (d) Indebtedness (i) under unsecured overdraft lines of credit or for working capital purposes
in foreign countries with financial institutions and (ii) arising from the honoring by a bank or
other person of a check, draft or similar instrument inadvertently drawing against insufficient
funds;




          (e) Indebtedness not otherwise permitted under any other clause of this Section 7.2.4 so long
as each Subsidiary of the Borrower incurring such Indebtedness has delivered to the Administrative
Agent (i) a guaranty in a form and substance reasonably satisfactory to the Administrative Agent
and (ii) a certificate of an Authorized Officer certifying the adoption of board resolutions
authorizing such Subsidiary guaranty;




          (f) extensions, refinancing, renewals or replacements (or successive extensions, refinancing,
renewals, or replacements), in whole or in part, of the Indebtedness permitted above which, in the
case of any such extension, refinancing, renewal or replacement, does not increase the amount of
the Indebtedness being extended, refinanced, renewed or replaced, other than amounts incurred to
pay the costs of such extension, refinancing, renewal or replacement; and




          (g) any other Indebtedness not otherwise permitted by this Section 7.2.4 in a principal amount
not to exceed ten percent (10%) of Consolidated Net Tangible Assets in the aggregate at any one
time outstanding.




          SECTION 7.2.5 Consolidation, Merger, etc. The Borrower will not liquidate or
dissolve, nor consolidate with, or merge into or with, any other Person except (a) any Subsidiary
and (b) so long as no Event of Default has occurred and is continuing or would occur after giving
effect thereto, any other Person, in either case so long as the Borrower is the surviving entity.




          SECTION 7.2.6 Restrictive Agreements. The Borrower will not and will not permit any
of its Material Subsidiaries to enter into any agreement prohibiting the ability of





Page 52









 







any Material Subsidiary to make any payments, directly or indirectly, to the Borrower by way
of dividends, advances, repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on investments, or any other agreement
or arrangement which restricts the ability of any such Material Subsidiary to make any payment,
directly or indirectly, to the Borrower, other than agreements or arrangements with respect to
which the sum of all Indebtedness entitled to the benefit of such agreements or arrangements plus
the aggregate Minority Equity Value of all Material Subsidiaries subject to such restriction does
not exceed 10% of Consolidated Net Tangible Assets; where the term “Minority Equity Value”
means the product of the Consolidated Net Tangible Assets attributable to such Material Subsidiary
(but without reduction for minority equity interests) times the percentage of the equity interests
of such Material Subsidiary owned by a Person other than the Borrower and its Subsidiaries that are
entitled to the benefit of such agreement or arrangement.




ARTICLE VIII

EVENTS OF DEFAULT




     SECTION 8.1 Listing of Events of Default. Each of the following events or occurrences
described in this Section 8.1 shall constitute an “Event of Default”.



          SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall default in the payment
or prepayment when due of any principal of any Loan or any reimbursement obligation in respect of
any LC Disbursement, or the Borrower shall default (and such default shall continue unremedied for
a period of five days) in the payment when due of any interest on any Loan, of any fee hereunder or
of any other Obligation.




          SECTION 8.1.2 Breach of Warranty. Any representation or warranty of the Borrower made
or deemed to be made hereunder or in any other Loan Document executed by it or any certificates
delivered pursuant to Article V is or shall be incorrect in any material respect when made or
deemed made.




          SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations. The Borrower
shall default in the due performance and observance of any of its obligations under Sections
7.1.1(d), 7.2.2, 7.2.3, 7.2.5 or 7.2.6; provided that the imposition of any non-consensual Lien
that is not permitted to exist pursuant to Section 7.2.2 shall not be deemed to constitute an Event
of Default hereunder until thirty (30) days after the date of such imposition.




          SECTION 8.1.4 Non-Performance of Other Covenants and Obligations. The Borrower shall
default in the due performance and observance of any other provision contained herein (not
constituting an Event of Default under the preceding provisions of this Section 8.1) or any other
Loan Document executed by it, and such default shall continue unremedied for a period of 30 days
after notice thereof shall have been given to the Borrower by the Administrative Agent.




          SECTION 8.1.5 Default on Other Indebtedness. A default shall occur in the payment
when due (subject to any applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than Indebtedness described in Section 8.1.1) of the Borrower or any of its
Material Subsidiaries, or of any reimbursed obligation in respect of letters





Page 53









 







of credit for which the Borrower or any of its Material Subsidiaries is an account party, in
any case having a principal amount, individually or in the aggregate, in excess of $100,000,000, or
a default shall occur in the performance or observance of any obligation or condition with respect
to such Indebtedness or reimbursement obligation if the effect of such default is to accelerate the
maturity of any such Indebtedness or reimbursement obligation or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or holders of such
Indebtedness or reimbursement obligation, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.




          SECTION 8.1.6 Judgments. Any judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against the Borrower or any of its Material Subsidiaries if such
excess is not fully covered by valid and collectible insurance in respect thereof, the payment of
which is not being disputed or contested by the insurer or the insurers, and either (i) proper or
valid enforcement or levying proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) such judgment or order shall continue unsatisfied and unstayed for a
period of thirty (30) consecutive days.




          SECTION 8.1.7 Pension Plans. Any of the following events shall occur with respect to
any Pension Plan (a) the institution of any steps by the Borrower, any member of its Controlled
Group or any other Person to terminate a Pension Plan if, as a result of such termination, the
Borrower or any such member could be required to make a contribution to such Pension Plan in excess
of $100,000,000; or (b) a contribution failure occurs with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA to the extent such action would reasonably be
expected to cause a Material Adverse Effect.




          SECTION 8.1.8 Change in Control. Any Change in Control shall occur.




          SECTION 8.1.9 Bankruptcy, Insolvency, etc. The Borrower or any Material Subsidiary
shall (a) become insolvent or generally fail to pay, or admit in writing its inability or
unwillingness to pay, debts as they become due; (b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other custodian for the Borrower or Material
Subsidiaries or any substantial portion of the property of any thereof, or make a general
assignment for the benefit of creditors; (c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee, receiver, sequestrator or
other custodian for the Borrower or any Material Subsidiary or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days; provided that the Borrower and each Material Subsidiary hereby expressly
authorizes the Administrative Agent and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their rights under the Loan
Documents; (d) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any Material Subsidiary, and,
if any such case or proceeding is not commenced by the Borrower or such Material Subsidiary, such
case or proceeding shall be consented to or acquiesced in by the Borrower or such Material
Subsidiary or shall result in the entry of an order for relief or shall remain for 60 days
undismissed; provided that the Borrower and each Material Subsidiary hereby expressly authorizes
the Administrative Agent and each Lender to appear in





Page 54









 







any court conducting any such case or proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents; or (e) take any corporate action
authorizing, or in furtherance of, any of the foregoing.




     SECTION 8.2 Action if Bankruptcy. If any Event of Default described in Section 8.1.9
shall occur with respect to the Borrower or any Material Subsidiary, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding principal amount of all
outstanding Borrowings and all other Obligations shall automatically be and become immediately due
and payable, without notice or demand.



     SECTION 8.3 Action if Other Event of Default. If any Event of Default (other than any
Event of Default described in Section 8.1.9 with respect to the Borrower or any Material
Subsidiary) shall occur for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by notice to the Borrower
declare all or any portion of the outstanding principal amount of the Borrowings and other
Obligations to be due and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable, without further notice,
demand or presentment, as the case may be, and/or the Commitments shall terminate.



ARTICLE IX

THE AGENTS




     SECTION 9.1 Actions. Each Lender and each Issuing Bank hereby appoints (i) JPMORGAN
CHASE BANK, N.A. as the Administrative Agent under this Agreement and each other Loan Document,
(ii) CITIBANK, N.A., as Syndication Agent under this Agreement and each other Loan Document, and
(iii) BANK OF AMERICA, N.A., MIZUHO CORPORATE BANK, LTD. and MORGAN STANLEY MUFG LOAN PARTNERS,
LLC, acting through THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. and MORGAN STANLEY SENIOR FUNDING, INC.,
as Documentation Agents under this Agreement and each other Loan Document. Each Lender authorizes
the Administrative Agent to act on behalf of such Lender under this Agreement and each other Loan
Document and, in the absence of other written instructions from the Required Lenders received from
time to time by the Administrative Agent (with respect to which the Administrative Agent agrees
that it will comply, except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof, together with such powers as
may be reasonably incidental thereto. Each Lender acknowledges that neither the Syndication Agent
nor any of the Documentation Agents have any duties or obligations under this Agreement or any
other Loan Document in connection with their capacity as either a Syndication Agent or
Documentation Agent, respectively. Each Lender hereby indemnifies (which indemnity shall survive
any termination of this Agreement) each of the Agents, pro rata according to such Lender’s
Percentage, WHETHER OR NOT RELATED TO ANY SINGULAR, JOINT OR CONCURRENT NEGLIGENCE OF THE AGENTS,
from and against any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted
against, any Agent in any way relating to or arising out of this



Page 55









 




Agreement and any other Loan Document, including reasonable attorneys’ fees, and as to which
such Agent is not reimbursed by the Borrower; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from such Agent’s gross negligence or willful misconduct. None of the Agents shall
be required to take any action hereunder or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of any Agent shall be or become
inadequate, in such Agent’s determination, as the case may be, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against hereunder until such
additional indemnity is given. Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, none of the Agents shall have any duties or
responsibilities, except as expressly set forth herein, nor shall any of the Agents have or be
deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against any of the Agents.




     SECTION 9.2 Funding Reliance, etc. Unless the Administrative Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., Central time, on the day
prior to a Borrowing (except with respect to a Borrowing comprised of Base Rate Loans, in which
case notice shall be given no later than 12:00 noon, Central time, on the date of the proposed
Borrowing) that such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If and to the extent that
such Lender shall not have made such amount available to the Administrative Agent, such Lender and
the Borrower severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date the Administrative
Agent made such amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the Federal Funds Rate.





     SECTION 9.3 Exculpation. None of the
Agents and their respective directors, officers, employees or agents shall be liable to any Lender
for any action taken or omitted to be taken by it under this Agreement or any other Loan Document,
or in connection herewith or therewith, except for its own willful misconduct or gross negligence,
nor responsible for any recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan Document, nor to make
any inquiry respecting the performance by the Borrower of its obligations hereunder or under any
other Loan Document. Any such inquiry which may be made by any Agent shall not obligate it to make
any further inquiry or to take any action. Each of the Agents shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent, certificate, statement or
writing which such Agent believes to be genuine and to have been presented by a proper Person.



     SECTION 9.4 Successor. Any of the Agents may resign as such at any time upon at least
30 days’ prior notice to the Borrower and all Lenders. If the Administrative Agent at any time
shall resign, the Required Lenders may appoint another Lender as the successor Administrative Agent
which shall thereupon become the Administrative Agent hereunder. If no successor



Page 56









 




Administrative
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative Agent’s giving
notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Banks, appoint a successor Administrative Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall be
entitled to receive from the retiring Administrative Agent such documents of transfer and
assignment as such successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After a retiring Administrative Agent’s resignation hereunder as
a Administrative Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent under this
Agreement, and Section 10.4 (and, with respect to the Administrative Agent, Section 10.3) shall
continue to inure to its benefit.




     SECTION 9.5 Loans by the Agents. Each of the Agents shall have the same rights and
powers with respect to the Loans made by it or any of its Affiliates and may exercise the same as
if it were not an Agent. Each of the Agents and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if it were not an Agent hereunder.



     SECTION 9.6 Credit Decisions. Each Lender and Issuing Bank acknowledges that it has
made its own credit decision to extend its Commitments hereunder (i) independently of each of the
Agents, each other Lender and each other Issuing Bank, and (ii) based on such Lender’s or Issuing
Bank’s review of the financial information of the Borrower, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender) and such other
documents, information and investigations as such Lender has deemed appropriate. Each Lender and
Issuing Bank also acknowledges that it will continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges available to it under this
Agreement or any other Loan Document (i) independently of each of the Agents, each other Lender and
each other Issuing Bank, and (ii) based on such other documents, information and investigations as
it shall deem appropriate at any time.



     SECTION 9.7 Copies, etc. The Administrative Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Administrative Agent by
the Borrower pursuant to the terms of this Agreement (unless concurrently delivered to the Lenders
by the Borrower). The Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the Administrative Agent
in accordance with the terms of this Agreement.




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ARTICLE X

MISCELLANEOUS PROVISIONS




     SECTION 10.1 Waivers, Amendments, etc. The provisions of this Agreement and of each
other Loan Document may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrower and the Required Lenders;
provided, however, that no such amendment, modification or waiver which would: (a) modify any
requirement hereunder that any particular action be taken by all the Lenders or by the Required
Lenders shall be effective unless consented to by each Lender; (b) modify the first sentence of
Section 4.8, Section 4.9 or this Section 10.1, change the definition of “Required Lenders”, reduce
any fees described in Article III or, except in the manner set forth in Section 2.10, extend the
Maturity Date, shall be made without the consent of each Lender; (c) except in the manner set forth
in Section 2.10, extend the due date for, or reduce the amount of, any scheduled repayment or
prepayment of principal of or interest on any Loan or LC Disbursement (or reduce the principal
amount of or rate of interest on any Loan or LC Disbursement) shall be made without the consent of
the Lender which made such Loan or is otherwise affected thereby; (d) release the Borrower from any
guarantee given under Section 2.12.2 in respect of a Foreign Borrower without the consent of each
Lender directly affected thereby or (e) affect adversely the interests, rights or obligations of
any Agent as an Agent shall be made without the consent of such Agent; provided, further, that no
such amendment, modification or waiver which would either increase any Commitment, the Commitment
Amount or the Percentage of any Lender, or modify the rights, duties or obligations of any Agent,
Issuing Bank or the Swingline Lender, shall be effective without the consent of such Lender, such
Agent, such Issuing Bank or such Swingline Lender, as applicable. No failure or delay on the part
of the Administrative Agent, any Lender, any Issuing Bank or Swingline Lender in exercising any
power or right under this Agreement or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or demand on the
Borrower in any case shall entitle it to any notice or demand in similar or other circumstances.
No waiver or approval by the Administrative Agent, any Lender, any Issuing Bank or Swingline Lender
under this Agreement or any other Loan Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.



     SECTION 10.2 Notices.



          (a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by telecopy, as follows:





	 	(i)	 	if to the Borrower, to:
	 
	 	 	 	Noble Energy, Inc.
	 	 	 	100 Glenborough Drive
	 	 	 	Houston, Texas 77067
	 	 	 	Attention: Treasurer
	 	 	 	Telephone No.: (281) 872-3107
	 	 	 	Facsimile No.:(281) 872-3121




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	 	(ii)	 	if to the Administrative Agent, to:
	 	 	 	JPMorgan Chase Bank, N.A.
	 	 	 	Agency Services
	 	 	 	1111 Fannin Street, 10th Floor
	 	 	 	Houston, Texas 77002
	 	 	 	Attention: Shadia Folahan
	 	 	 	Telephone No.: (713) 750-2367
	 	 	 	Facsimile No.: (713) 427-6307
	 
	 	 	 	With a copy to:
	 
	 	 	 	JPMorgan Chase Bank, N.A.
	 	 	 	Global Oil & Gas Group
	 	 	 	712 Main Street, 12th Floor
	 	 	 	Houston, Texas 77002
	 	 	 	Attention: Marshall Trenckmann
	 	 	 	Telephone No.: (713) 216-6031
	 	 	 	Facsimile No.: (713) 216-8870
	 
	 	(iii)	 	if to the Syndication Agent, any Documentation Agent, any Issuing
	 	 	 	Bank, the Swingline Lender or any other Lender, to it at its address
	 	 	 	(or telecopy number) provided to the Administrative Agent and the
	 	 	 	Borrower or as set forth in its Administrative Questionnaire.





          (b) Notices and other communications to the Lenders, Issuing Bank or Swingline Lender
hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable
Lender, Issuing Bank or Swingline Lender. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.




          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.




          SECTION 10.3 Payment of Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of (i) the Administrative Agent, the
Syndication Agent and the Arrangers in connection with the preparation, negotiation, execution,
delivery, syndication and administration of this Agreement and of each other Loan





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Document, including schedules and exhibits, and any amendments, waivers, consents, supplements
or other modification to this Agreement or any other Loan Document, (ii) an Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) the Swingline Lender in connection with the making of any Swingline
Loan or any demand for payment thereunder, and (iv) the Administrative Agent, any Issuing Bank, the
Swingline Lender and the Lenders in connection with the enforcement by the Lenders, any Issuing
Bank, the Swingline Lender or the Administrative Agent of, or the protection of rights under, this
Agreement and each other Loan Document. The Administrative Agent, the other Agents, the Arrangers,
each Issuing Bank, the Swingline Lender and each Lender agree to the extent feasible, and to the
extent a conflict of interest does not exist in the reasonable opinion of the Administrative Agent,
the other Agents, the Arrangers, any Issuing Bank, the Swingline Lender or any Lender, to use one
law firm in each jurisdiction in connection with the foregoing, to the extent they seek
reimbursement for the expenses thereof from the Borrower. Each Lender agrees to reimburse the
Administrative Agent, each Issuing Bank and the Swingline Lender on demand for such Lender’s pro
rata share (based upon its respective Percentage) of any such costs or expenses not paid by the
Borrower. In addition, the Borrower agrees to pay, and to save the Administrative Agent, the other
Agents, the Arrangers, any Issuing Bank, the Swingline Lender and the Lenders harmless from all
liability for, any stamp or other taxes (other than Excluded Taxes) which may be payable in
connection with the execution or delivery of this Agreement, the Borrowings hereunder, or of any
other instruments or documents provided for herein or delivered or to be delivered hereunder or in
connection herewith.




     SECTION 10.4 Indemnification; Waiver of Consequential Damages. In consideration of
the execution and delivery of this Agreement by each Lender, Issuing Bank and the Swingline Lender
and the extension of the Commitments, the Borrower hereby indemnifies, exonerates and holds each
Agent, the Arrangers, each Issuing Bank, the Swingline Lender and each Lender and each of their
respective officers, directors, employees and agents (collectively, the “Indemnified
Parties”), WHETHER OR NOT RELATED TO ANY NEGLIGENCE OF THE INDEMNIFIED PARTIES, free and
harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder is sought), whether
brought by a third party or by the Borrower and regardless of whether any Indemnified Party is a
party thereto, including reasonable attorneys’ fees and disbursements (collectively, the
“Indemnified Liabilities”), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or Letter of Credit; the entering into
and performance of this Agreement and any other Loan Document by any of the Indemnified Parties;
any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an
Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), any
investigation, litigation or proceeding related to any acquisition or proposed acquisition by the
Borrower or any of its Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not such Agent, the Arrangers, such Issuing Bank, such Swingline Lender or such Lender
is party thereto; any investigation, litigation or proceeding related to any environmental cleanup,
audit, compliance or other matter relating to the protection of the environment or the Release by
the Borrower or any of its Subsidiaries of



Page 60









 




any Hazardous Material; or the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real property owned or operated by
the Borrower or any Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the control of, the Borrower or such
Subsidiary; provided that such indemnity shall not, as to any Indemnified Party, be available to
the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnified Party or (y) result from a claim brought
by the Borrower or any Subsidiary against an Indemnified Party for breach in bad faith of such
Indemnified Party’s obligations hereunder or under any other Loan Document, if the Borrower or such
Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. This Section 10.4 shall not apply with respect to Taxes other than any Taxes that
represent losses, claims, damages, etc. arising from any non-Tax claim. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, NO PARTY SHALL ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY
INDEMNIFIED PARTY, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT
OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY
LOAN OR LETTER OF CREDIT, OR THE USE OF THE PROCEEDS THEREOF. NO INDEMNIFIED PARTY REFERRED SHALL
BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER
MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION
TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY; PROVIDED SUCH INDEMNIFIED PARTY HAS TAKEN AND
MAINTAINS COMMERCIALLY REASONABLE EFFORTS AND CONTROLS TO SAFEGUARD THE USE AND ACCESS OF SUCH
MATERIAL AND INFORMATION.




     SECTION 10.5 Survival. The obligations of the Borrower under Sections 4.3, 4.4, 4.5,
4.6, 10.3 and 10.4, and the obligations of the Lenders under Section 9.1, shall in each case
survive any termination of this Agreement, the payment in full of all Obligations and the
termination of all Commitments.



     SECTION 10.6 Severability. Any provision of this Agreement or any other Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.



     SECTION 10.7 Headings. The various headings of this Agreement and of each other Loan
Document are inserted for convenience only and shall not affect the meaning or



Page 61









 




interpretation of this Agreement or such other Loan Document or any provisions hereof or
thereof.




     SECTION 10.8 Governing Law. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.



     SECTION 10.9 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns (including
any Affiliate of an Issuing Bank that issues any Letter of Credit); provided, however, that: (a)
the Borrower may not assign or transfer its rights or obligations hereunder without the prior
written consent of the Administrative Agent and all Lenders; and (b) the rights of sale, assignment
and transfer of the Lenders are subject to Section 10.10.



     SECTION 10.10 Sale and Transfer of Loans and Commitments; Participations in Loans and
Commitments. Each Lender may assign, or sell participations in, its Loans and Commitments to
one or more other Persons in accordance with this Section.



          SECTION 10.10.1 Assignments. Any Lender (a) with the written consent of the Borrower
(provided that the consent of the Borrower shall not be required if an Event of Default has
occurred and is continuing) and the Administrative Agent and each Issuing Bank (which consent of
the Borrower, if applicable, and the Administrative Agent and such Issuing Banks shall not be
unreasonably delayed or withheld), may at any time assign and delegate to one or more commercial
banks or other financial institutions, and (b) with notice to the Borrower and the Administrative
Agent, but without the consent of the Borrower, the Administrative Agent or the Issuing Banks, may
assign and delegate to any of its Affiliates or to any other Lender, Lender Affiliate or Approved
Fund (each Person described in either of the foregoing clauses as being the Person to whom such
assignment and delegation is to be made, being hereinafter referred to as an “Assignee
Lender”), all or any fraction of such Lender’s total Loans and Commitments (which assignment
and delegation shall be of a constant, and not a varying, percentage of all the assigning Lender’s
Loans and Commitments and which shall be of equal pro rata shares of the Facility) in a minimum
aggregate amount of $5,000,000 (or in a minimum amount of $1,000,000 in the case of an assignment
to an Approved Fund with respect to which such Approved Fund plus the Lender or an Affiliate of
such Lender who administers or manages such Approved Fund plus other Approved Funds administered or
managed by the such Lender or an Affiliate of such Lender will then hold an amount of $5,000,000 or
more); provided, however, that any such Assignee Lender will comply, if applicable, with the
provisions contained in the last sentence of Section 4.6 and further, provided, however, that, the
Borrower and the Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to an Assignee Lender
until (i) written notice of such assignment and delegation, together with payment instructions,
addresses and related information with respect to such Assignee Lender, shall have been given to
the Borrower and the Administrative Agent by such Lender and such Assignee Lender, (ii) such
Assignee Lender shall have executed and delivered to the Borrower and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative Agent, (iii) such Assignee Lender shall
have delivered to the Administrative Agent an Administrative Questionnaire, and





Page 62









 







(iii) the processing fees described below shall have been paid. For the purposes of this
Section 10.10.1, the term “Approved Fund” has the following meaning:





“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in
the ordinary course of its business and that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



     From and after the date that the Administrative Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to have become a party
hereto and to the extent that rights and obligations hereunder have been assigned and delegated to
such Assignee Lender in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y) the assignor Lender,
to the extent that rights and obligations hereunder have been assigned and delegated by it in
connection with such Lender Assignment Agreement, shall be released from its obligations hereunder
and under the other Loan Documents; provided, that except to the extent otherwise expressly agreed
by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release
of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Accrued interest on that part of the predecessor Loans and Commitments, and accrued fees, shall be
paid as provided in the Lender Assignment Agreement. Accrued interest on that part of the
predecessor Loans and Commitments shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in this Agreement. Such assignor
Lender or such Assignee Lender must also pay a processing fee to the Administrative Agent upon
delivery of any Lender Assignment Agreement in the amount of $3,500. Any attempted assignment and
delegation not made in accordance with this Section shall be null and void.



     The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at one of its offices in Houston, Texas a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice



          SECTION 10.10.2 Participations. Any Lender may at any time sell to one or more
commercial banks or other Persons (each of such commercial banks and other Persons being herein
called a “Participant”) participating interests in any of the Loans, Commitments or other
interests of such Lender hereunder; provided, however, that (a) no participation contemplated in
this Section 10.10 shall relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document, (b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations, (c) the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in





Page 63









 







connection with such Lender’s rights and obligations under this Agreement and each of the
other Loan Documents, (d) no Participant, unless such Participant is an Affiliate of such Lender,
or is itself a Lender, shall be entitled to require such Lender to take or refrain from taking any
action hereunder or under any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant’s consent, take any actions of the
type described in clause (b) or (c) of Section 10.1, and (e) the Borrower shall not be required to
pay any amount under Section 4.6 that is greater than the amount which it would have been required
to pay had no participating interest been sold. The Borrower acknowledges and agrees that each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and 10.4, shall be
considered a Lender; provided that this sentence shall not obligate the Borrower to pay more under
such Sections that it would be obligated to pay had no such participation been granted. Each Lender
that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts
to cooperate with the Borrower to effectuate the provisions of Section 4.10 with respect to any
Participant. Each Lender that sells a participation shall, acting solely for this purpose as an
agent of the Borrower, maintain a register on which it enters the name and address of each
Participant and the principal amounts (and stated interest) of each Participant’s interest in the
Loans or other obligations under the Loan Documents (the “Participant Register”); provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register
(including the identity of any Participant or any information relating to a Participant’s interest
in any commitments, loans, letters of credit or its other obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish that such
commitment, loan, letter of credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this
Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for
maintaining a Participant Register.




          SECTION 10.10.3 Pledge by Lender. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




     SECTION 10.11 Other Transactions. Nothing contained herein shall preclude the
Administrative Agent or any other Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted hereby from engaging with any
other Person.



     SECTION 10.12 Confidentiality. Each of the Agents, the Issuing Banks and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the



Page 64









 




Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority or self-regulatory body, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any hedging agreement, (g) with the consent of
Borrower or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section by any Person or (ii) becomes available to any Agent or any
Lender on a nonconfidential basis from a source other than Borrower or any of its Affiliates. For
the purposes of this Section, “Information” means all information received from Borrower or
its Affiliate relating to Borrower and its Subsidiaries or their business, other than any such
information that is available to any Agent or any Lender on a nonconfidential basis prior to
disclosure by Borrower or any of its Affiliates. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




     SECTION 10.13 Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF TEXAS OR NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS OR THE SOUTHERN DISTRICT OF NEW YORK. THE BORROWER, THE ADMINISTRATIVE
AGENT, AND EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF TEXAS OR NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
TEXAS OR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE BORROWER, THE ADMINISTRATIVE AGENT, AND EACH LENDER FURTHER IRREVOCABLY CONSENT TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF TEXAS. THE BORROWER, THE ADMINISTRATIVE AGENT, AND EACH LENDER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT
MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM



Page 65









 




JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.




     SECTION 10.14 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE LENDERS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THE BORROWER.
THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR
THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING
INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.



     SECTION 10.15 Judgment Currency.



          SECTION 10.15.1 If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent could purchase Dollars
with such other currency at JPMorgan’s principal office in London at 11:00 a.m. (London time) on
the Business Day preceding that on which final judgment is given.




          SECTION 10.15.2 If for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder in a foreign currency into Dollars, the parties agree to the fullest
extent that they may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could purchase such foreign
currency with Dollars at JPMorgan’s principal office in London at 11:00 a.m. (London time) on the
Business Day preceding that on which final judgment is given.




          SECTION 10.15.3 The obligation of each Borrower in respect of any sum due from it in any
currency (the “Primary Currency”) to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on
the Business Day following receipt by such Lender or the Administrative Agent (as the case may be),
of any sum adjudged to be so due in such other currency, such Lender or the Administrative Agent
(as the case may be) may in accordance with normal banking procedures purchase the applicable
Primary Currency with such other currency; if the amount of the applicable Primary Currency so
purchased is less than such sum due to such Lender or the Administrative Agent (as the case may be)
in the applicable Primary Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such





Page 66









 







Lender or the Administrative Agent (as the case may be) against such loss, and if the amount
of the applicable Primary Currency so purchased exceeds such sum originally due to any Lender or
the Administrative Agent (as the case may be) in the applicable Primary Currency, such Lender or
the Administrative Agent (as the case may be) agrees to remit to such Borrower such excess.




     SECTION 10.16 USA Patriot Act Notice. Each Lender, each Issuing Bank and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the USA Patriot Act.



     SECTION 10.17 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



     SECTION 10.18 No Adverse Interpretation of Other Agreements. This Credit Agreement
may not be used to interpret another indenture, loan, security or debt agreement of the Borrower or
any Subsidiary thereof. No such indenture, loan, security or debt agreement may be used to
interpret this Credit Agreement.



     SECTION 10.19 No Fiduciary Duty. Each of the Administrative Agent, the Syndication
Agent, the Documentation Agents, each Lender and their Affiliates (collectively, solely for
purposes of this paragraph, the “Lenders”), may have economic interests that conflict with
those of the Borrower. The Borrower agrees that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or other similar duty
between the Lenders and the Borrower, its stockholders or its Affiliates. The Borrower
acknowledges and agrees that (i) the transactions contemplated by the Loan Documents are
arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower, on the
other, (ii) in connection therewith and with the process leading to such transaction each of the
Lenders is acting solely as a principal and not the agent or fiduciary of the Borrower, its
management, stockholders, creditors or any other person, (iii) no Lender has assumed an advisory or
fiduciary responsibility in favor of the Borrower with respect to the transactions contemplated
hereby or the process leading thereto (irrespective of whether any Lender or any of its Affiliates
has advised or is currently advising the Borrower on other matters) or any other obligation to the
Borrower except the obligations expressly set forth in the Loan Documents and (iv) the Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate. The Borrower
further acknowledges and agrees that it is responsible for making its own independent judgment with
respect to such transactions and the process leading thereto. The Borrower agrees that it will not
claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary
or similar duty to the Borrower, in connection with such transaction or the process leading
thereto.




Page 67












 





[SIGNATURES BEGIN ON FOLLOWING PAGE]




Page 68




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.



	 	 	 	 	 
	 	NOBLE ENERGY, INC., as the Borrower

 	 
	 	By:  	/s/ Kenneth M. Fisher
 	 
	 	 	Name:  	Kenneth M. Fisher 	 
	 	 	Title:  	Senior Vice President and Chief Financial
Officer 	 
	 



Signature Page 1

to Credit Agreement




 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., individually as 

a Lender, as the Administrative Agent, as an Issuing 

Bank and as the Swingline Lender

 	 
	 	By:  	/s/ Marshall Trenckmann
 	 
	 	 	Name:  	Marshall Trenckmann 	 
	 	 	Title:  	Vice President 	 




Signature Page 2

to Credit Agreement



 









 







	 	 	 	 	 
	 	CITIBANK, N.A. individually as a Lender and as the

Syndication Agent

 	 
	 	By:  	/s/ Andrew Sidford
 	 
	 	 	Name:  	Andrew Sidford 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 3

to Credit Agreement




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., individually as a Lender and

as a Documentation Agent

 	 
	 	By:  	/s/ Christopher T. Renyi
 	 
	 	 	Name:  	Christopher T. Renyi 	 
	 	 	Title:  	Vice President 	 


Signature Page 4

to Credit Agreement



 









 








	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., individually
as a Lender

 	 
	 	By:  	/s/ Maria Ferradas
 	 
	 	 	Name:  	Maria Ferradas 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., 

individually as a Lender

 	 
	 	By:  	/s/ Lisa Kopff
 	 
	 	 	Name:  	Lisa Kopff 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page 5

to Credit Agreement




 









 








	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD., 

individually as a Lender and

as a Documentation Agent

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page 6

to Credit Agreement





 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC, individually 

as a Lender

 	 
	 	By:  	/s/ Michael Mozer
 	 
	 	 	Name:  	Michael Mozer 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 7

to Credit Agreement




 









 








	 	 	 	 	 
	 	BNP PARIBAS, individually as a Lender

 	 
	 	By:  	/s/ Edward Pak
 	 
	 	 	Name:  	Edward Pak 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Matthew A. Turner
 	 
	 	 	Name:  	Matthew A. Turner 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 8

to Credit Agreement




 









 








	 	 	 	 	 
	 	COMPASS BANK, individually as a Lender

 	 
	 	By:  	/s/ Spencer Stasney
 	 
	 	 	Name:  	Spencer Stasney 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 9

to Credit Agreement




 









 








	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH, 

individually as a Lender

 	 
	 	By:  	/s/ Philippe Sandmeier
 	 
	 	 	Name:  	Philippe Sandmeier 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                         /s/ Ming K. Chu
 	 
	 	 	Name:  	Ming K. Chu 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 10

to Credit Agreement




 









 








	 	 	 	 	 
	 	DNB NOR BANK ASA, individually as a Lender

 	 
	 	By:  	/s/ Pal Boger
 	 
	 	 	Name:  	Pal Boger 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                         /s/ Kristie Li
 	 
	 	 	Name:  	Kristie Li 	 
	 	 	Title:  	Vice President 	 



Signature Page 11

to Credit Agreement



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	HSBC BANK USA, NATIONAL ASSOCIATION, 

individually as a Lender

 	 
	 	By:  	/s/ William S. Edge III
 	 
	 	 	Name:  	William S. Edge III 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page 12

to Credit Agreement





 









 








	 	 	 	 	 
	 	LLOYDS TSB BANK PLC, individually as a Lender

 	 
	 	By:  	/s/ Dennis McClellan
 	 
	 	 	Name:  	Dennis McClellan 	 
	 	 	Title:  	Vice President Operations 	 
	 
	 	 	 
	 	By:  	                         /s/ Karen Weich
 	 
	 	 	Name:  	Karen Weich 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 13

to Credit Agreement





 









 








	 	 	 	 	 
	 	SUMITOMO MITSUI BANKING 

CORPORATION, individually as a Lender

 	 
	 	By:  	/s/ Masakazu Hasegawa
 	 
	 	 	Name:  	Masakazu Hasegawa 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page 14

to Credit Agreement





 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, 

individually as a Lender

 	 
	 	By:  	/s/ Kevin S. McFadden
 	 
	 	 	Name:  	Kevin S. McFadden 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page 15

to Credit Agreement






 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, 

individually as a Lender

 	 
	 	By:  	/s/ Peter Carini
 	 
	 	 	Name:  	Peter Carini 	 
	 	 	Title:  	Assistant Vice President 	 
	 



Signature Page 16

to Credit Agreement




 









 








	 	 	 	 	 
	 	BMO HARRIS FINANCING, INC., 

individually as a Lender

 	 
	 	By:  	/s/ Gumaro Tijerina
 	 
	 	 	Name:  	Gumaro Tijerina 	 
	 	 	Title:  	Director 	 
	 



Signature Page 17

to Credit Agreement






 









 








	 	 	 	 	 
	 	CIBC INC., individually as a Lender

 	 
	 	By:  	/s/ Trudy Nelson
 	 
	 	 	Name:  	Trudy Nelson 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	 	 
	 	By:  	                      /s/ Richard Antl
 	 
	 	 	Name:  	Richard Antl 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page 18

to Credit Agreement




 









 








	 	 	 	 	 
	 	FIFTH THIRD BANK, individually as a Lender

 	 
	 	By:  	/s/ Christopher Motley
 	 
	 	 	Name:  	Christopher Motley 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page 19

to Credit Agreement




 









 








	 	 	 	 	 
	 	SOCIÉTÉ GÉNÉRALE S.A., individually as a Lender

 	 
	 	By:  	/s/ Stephen W. Warfel
 	 
	 	 	Name:  	Stephen W. Warfel 	 
	 	 	Title:  	Managing Director 	 
	 



Signature Page 20

to Credit Agreement




 









 








	 	 	 	 	 
	 	TORONTO DOMINION (NEW YORK) LLC, 

individually as a Lender

 	 
	 	By:  	/s/ Debbi L. Brito
 	 
	 	 	Name:  	Debbi L. Brito 	 
	 	 	Title:  	Authorized Signatory 	 
	 



Signature Page 21

to Credit Agreement




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 




 












 





SCHEDULE II




SCHEDULE OF COMMITMENTS




	 	 	 	 	 
	NAME OF LENDER	 	COMMITMENTS	 
	JPMorgan Chase Bank, N.A.
	 	$	250,000,000	 
	Citibank, N.A.
	 	$	250,000,000	 
	Bank of America, N.A.
	 	$	250,000,000	 
	Mizuho Corporate Bank, Ltd.
	 	$	250,000,000	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	175,000,000	 
	Barclays Bank PLC
	 	$	145,000,000	 
	BNP Paribas
	 	$	145,000,000	 
	Compass Bank
	 	$	145,000,000	 
	Deutsche Bank AG New York Branch
	 	$	145,000,000	 
	DnB NOR Bank ASA
	 	$	145,000,000	 
	HSBC Bank USA, National Association
	 	$	145,000,000	 
	Lloyds TSB Bank plc
	 	$	145,000,000	 
	Sumitomo Mitsui Banking Corporation
	 	$	145,000,000	 
	U.S. Bank National Association
	 	$	145,000,000	 
	Wells Fargo Bank, National Association
	 	$	145,000,000	 
	Morgan Stanley Bank, N.A.
	 	$	75,000,000	 
	BMO Harris Financing, Inc.
	 	$	60,000,000	 
	CIBC Inc.
	 	$	60,000,000	 
	Fifth Third Bank
	 	$	60,000,000	 
	Société Générale
	 	$	60,000,000	 
	TD Securities (USA) LLC
	 	$	60,000,000	 
	TOTAL
	 	$	3,000,000,000	 






Schedule II — Page 1




 









 








SCHEDULE III




ISSUED LETTERS OF CREDIT



NONE




Schedule III — Page 1




 









 








SCHEDULE 6.8




SUBSIDIARIES




	 	 	 	 	 
	 	 	State or Jurisdiction	 	 
	Name	 	of Organization	 	Reference
	EDC (Denmark) Inc.
	 	Delaware	 	(2)
	EDC Ecuador Ltd.
	 	Delaware	 	(1)
	EDC Ireland
	 	Cayman Islands	 	(2)
	Energy Development Corporation (Argentina), Inc.
	 	Delaware	 	(1)
	Energy Development Corporation (China), Inc.
	 	Delaware	 	(1)
	Energy Development Corporation (HIPS), Inc.
	 	Delaware	 	(1)
	Gasdel Pipeline System Incorporated
	 	New Jersey	 	(1)
	HGC, Inc.
	 	Delaware	 	(1)
	MachalaPower Cia. Ltda.
	 	Cayman Islands	 	(3)
	Noble Energy AGC Ltd.
	 	Mauritius	 	(2)
	Noble Energie France
	 	France	 	(2)
	Noble Energy (Cyprus) Limited
	 	Cyprus	 	(3)
	Noble Energy (Europe) Limited
	 	United Kingdom	 	(2)
	Noble Energy (ISE) Limited
	 	United Kingdom	 	(4)
	Noble Energy (Oilex) Limited
	 	United Kingdom	 	(4)
	Noble Energy Adriana Limited
	 	Cayman Islands	 	(2)
	Noble Energy Australia, Inc.
	 	Delaware	 	(1)
	Noble Energy Aviation, LLC
	 	Delaware	 	(1)
	Noble Energy Belinda Limited
	 	Cayman Islands	 	(2)
	Noble Energy Benita Limited
	 	Cayman Islands	 	(2)
	Noble Energy Cameroon Limited
	 	Cayman Islands	 	(2)
	Noble Energy Capital Limited
	 	England	 	(2)
	Noble Energy Caribbean LLC
	 	Nevis	 	(6)
	Noble Energy Cyprus Oil & Gas Ltd.
	 	Cyprus	 	(3)
	Noble Energy Ecuador Ltd.
	 	Cayman Islands	 	(5)
	Noble Energy EG Ltd.
	 	Cayman Islands	 	(3)
	Noble Energy India LTD.
	 	Cayman Islands	 	(2)






Schedule 6.8  — Page 1






 









 








	 	 	 	 	 
	 	 	State or Jurisdiction	 	 
	Name	 	of Organization	 	Reference
	Noble Energy International Ltd.
	 	Cayman Islands	 	(2)
	Noble Energy JDZ Ltd.
	 	Cayman Islands	 	(3)
	Noble Energy Mediterranean Ltd.
	 	Cayman Islands	 	(3)
	Noble Energy Nicaragua LTD.
	 	Cayman Islands	 	(3)
	Noble Energy Suriname Ltd.
	 	Cayman Islands	 	(3)
	Noble Energy Wyco, LLC
	 	Delaware	 	(1)
	Noble Energy YOYO-1 Limited
	 	Cayman Islands	 	(2)
	Producers Service, Inc.
	 	New Jersey	 	(1)
	Samedan of North Africa, Inc.
	 	Delaware	 	(1)
	Samedan Oil of Indonesia, Inc.
	 	Delaware	 	(1)
	Samedan Pipe Line Corporation
	 	Delaware	 	(1)
	Samedan Royalty Corporation
	 	Delaware	 	(1)
	Seven Oaks Insurance Limited
	 	Bermuda	 	(1)








 




			
	(1)	 	100% directly owned by Noble Energy, Inc.
	 
	(2)	 	100% directly owned by Samedan of North Africa, Inc.
	 
	(3)	 	100% directly owned by Noble Energy International Ltd.
	 
	(4)	 	100% directly owned by Noble Energy (Europe) Limited
	 
	(5)	 	100% directly owned by EDC Ecuador Ltd.
	 
	(6)	 	100% directly owned by Noble Energy Suriname Ltd.





Schedule 6.8  — Page 2




 









 








EXHIBIT 2.5




BORROWING REQUEST



JPMorgan Chase Bank, N.A., as Administrative Agent

Agency Services

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention:

Telephone No.:

Facsimile No.:




JPMorgan Chase Bank, N.A., as Administrative Agent

Global Oil & Gas Group

712 Main Street, 12th Floor

Houston, Texas 77002

Attention:

Telephone:

Facsimile:




NOBLE ENERGY, INC.



Gentlemen and Ladies:




     This Borrowing Request is delivered to you pursuant to Section 2.5 of the Credit Agreement,
dated as of October 14, 2011 (as may be amended, supplemented, restated or otherwise modified from
time to time, the “Credit Agreement”), among Noble Energy, Inc., a Delaware corporation
(the “Borrower”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity,
together with any successor(s) thereto in such capacity, the “Administrative Agent”), the
various other agents party thereto, and certain commercial lending institutions as are or may
become Lenders thereunder. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.



     1. This Borrowing Request is made pursuant to the terms of Section 2.5 of the Credit
Agreement.



     2. Please be advised that the Borrower is requesting Loans in the amount of $___________ to be
funded on ___________, 201_ at the interest rate option set forth in paragraph 3 below.



     3. The interest rate option applicable to the requested Loans shall be:



     a. _________ the Base Rate



     b. _________ the Eurodollar Rate for an Interest Period of:



     _________ one month



Exhibit 2.5  — Page 1





 









 








     _________ two months



     _________ three months



     _________ six months



     _________ nine months



     _________ twelve months



     c. _________ a Swingline Loan at



     (i) the Base Rate, or



     (ii) the Ask Rate.



     4. The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the Credit Agreement,
each of the delivery of this Borrowing Request and the acceptance by the Borrower of the proceeds
of the Loans requested hereby constitute a representation and warranty by the Borrower that, on the
date of such Loans, and before and after giving effect thereto and to the application of the
proceeds therefrom, all statements set forth in Section 5.2.1 are true and correct in all material
respects.



     5. Unless notification to the contrary is received by the Administrative Agent prior to the
date on which funds are to be advanced, as of the date on which funds are to be advanced, no
Default or Event of Default will have occurred and be continuing or will be caused by this Notice
of Borrowing.



     6. Please wire transfer the proceeds of the Borrowing to the accounts of the following persons
at the financial institutions indicated respectively:



     Amount to be Transferred Person to be Paid Name, Address, etc. of Transferee Lender



          Name            Account No.




     $_________       ________       ________       __________________



     __________________



     Attention:__________



     $_________      ________      ________      __________________



     __________________



     Attention:__________



Exhibit 2.5  — Page 2




 









 








     Balance of such proceeds      Borrower      ________      __________________



     __________________



     Attention:__________



Exhibit 2.5  — Page 3




 









 








     The Borrower has caused this Borrowing Request to be executed and delivered, and the
certification and warranties contained herein to be made, by its duly Authorized Officer this ___
day of _________, 201_.



	 	 	 	 	 
	 	NOBLE ENERGY, INC.

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.5  — Page 4




 









 








EXHIBIT 2.6




CONTINUATION/CONVERSION NOTICE



JPMorgan Chase Bank, N.A., as Administrative Agent

Agency Services

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention:

Telephone No.:

Facsimile No.:




JPMorgan Chase Bank, N.A., as Administrative Agent

Global Oil & Gas Group

712 Main Street, 12th Floor

Houston, Texas 77002

Attention:

Telephone:

Facsimile:




NOBLE ENERGY, INC.



Gentlemen and Ladies:





     This Continuation/Conversion Notice is delivered to you pursuant to Section 2.6 of the Credit
Agreement, dated as of October 14, 2011 (as may be amended, supplemented, restated or otherwise
modified from time to time, the “Credit Agreement”), among Noble Energy, Inc., a Delaware
corporation (the “Borrower”), JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, together with any successor(s) thereto in such capacity, the “Administrative
Agent”), the other agents party thereto, and certain commercial lending institutions as are or
may become Lenders thereunder. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.



     The Borrower hereby requests that on __________, 201_,



     (1) $________ of the presently outstanding principal amount of the Loans originally made on
________, 201_ [and $ ________ of the presently outstanding principal amount of the Loans
originally made on ________, 201_,



     (2) and all presently being maintained as [Base Rate Loans] [Eurodollar Loans],



     (3) be [converted into] [continued as],



     (4) [Eurodollar Loans having an Interest Period of ________ months] [Base Rate Loans].



     The Borrower hereby:



Exhibit 2.6  — Page 1




 









 








     (a) certifies and warrants that no Default or Event of Default has occurred and is continuing;
and



     (b) agrees that if prior to the time of such continuation or conversion any matter certified
to herein by it will not be true and correct at such time as if then made, it will immediately so
notify the Administrative Agent.



     Except to the extent, if any, that prior to the time of the continuation or conversion
requested hereby the Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed to be certified at the date of such
continuation or conversion as if then made.



     The Borrower has caused this Continuation/Conversion Notice to be executed and delivered, and
the certification and warranties contained herein to be made, by its Authorized Officer this __ day
of ________, 201_.



	 	 	 	 	 
	 	NOBLE ENERGY, INC.

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.6  — Page 2




 









 








EXHIBIT 2.8

[FORM OF]




NOTE




			
	 	 	 
	$_____________
	 	__________, 201_






     FOR VALUE RECEIVED, the undersigned, NOBLE ENERGY, INC., a Delaware corporation (the
“Borrower”), promises to pay to ______________________________ (the “Lender”) on
the Maturity Date the principal sum of _________________________________ AND ___/100 DOLLARS
($__________) or, if less, the aggregate unpaid principal amount of all Obligations shown on the
schedule attached hereto (and any continuation thereof, provided, however, that the failure to make
such notations shall not limit or otherwise affect the obligations of the Borrower under this Note
or the Credit Agreement (as herein defined)), in either case made by the Lender pursuant to that
certain Credit Agreement, dated as of October 14, 2011 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the “Credit Agreement”),
among Borrower, the Lenders party thereto (including the Lender), JPMorgan Chase Bank, N.A., as
administrative agent (in such capacity, together with any successor(s) thereto in such capacity,
the “Administrative Agent”), and the other agents party thereto.



     The Borrower also promises to pay interest on the unpaid principal amount hereof from time to
time outstanding from the date hereof until maturity (whether by acceleration or otherwise) and,
after maturity, until paid, at the rates per annum and on the dates specified in the Credit
Agreement.



     This Note (the “Note”) evidences Indebtedness incurred under the Credit Agreement to
which reference is made for a statement of the terms and conditions on which the Borrower is
permitted and required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be declared to be immediately due and
payable. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.



     All parties hereto, whether as makers, endorsers, or otherwise, severally waive presentment
for payment, demand, protest and notice of dishonor.



     THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
TEXAS.



	 	 	 	 	 
	 	NOBLE ENERGY, INC.

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.8  — Page 1




 









 








LOANS AND PRINCIPAL PAYMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Amount of	 	Interest Period	 	Amount of	 	Unpaid Principal	 	 	 	Notation
	Date	 	Loan Made	 	(if Applicable)	 	Principal Repaid	 	Balance	 	Total	 	Made By
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





Exhibit 2.8  — Page 2





 












 





EXHIBIT 2.9




NOTICE OF COMMITMENT INCREASE




JPMorgan Chase Bank, N.A., as Administrative Agent

Agency Services

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention:

Telephone No.:

Facsimile No.:





JPMorgan Chase Bank, N.A., as Administrative Agent

Global Oil & Gas Group

712 Main Street, 12th Floor

Houston, Texas 77002

Attention:

Telephone:

Facsimile:




NOBLE ENERGY, INC.



Gentlemen and Ladies:




     This Notice of Commitment Increase is delivered to you pursuant to Section 2.9 of the Credit
Agreement, dated as of October 14, 2011 (as may be amended, supplemented, restated or otherwise
modified from time to time, the “Credit Agreement”), among Noble Energy, Inc., a Delaware
corporation (the “Borrower”), JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, together with any successor(s) thereto in such capacity, the “Administrative
Agent”), the other agents party thereto, and certain commercial lending institutions as are or
may become Lenders thereunder. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.



     Please be advised that Borrower hereby requests an increase effective __________,
201__1 in the aggregate Commitments under the Credit Agreement from $____________ to
$_______________.2



     [CI Lender] has agreed [Language for existing Lender] [to increase effective __________, 20__
its Commitment under the Credit Agreement from $_______________ to





 




			
	1	 	Such date shall be no earlier than five (5)
Business Days after receipt by the Administrative Agent of such Notice of
Commitment Increase (unless an earlier date is otherwise agreed to by the
Borrower, any applicable Lender or CI Lender, and the Administrative Agent).
	 
	2	 	After giving effect to the requested Commitment
Increase, the total amount of the Commitment shall not exceed $4,000,000,000.





Exhibit 2.9  — Page 1





 









 







$____________ and (b) that it
shall continue to be a party in all respects to the Credit Agreement and the other Loan Documents]
[Language for new Lender] [effective __________, 201__ (a) to become a Lender under the Credit
Agreement with a Commitment of $ __________ and (b) that it shall be deemed to be a party in all
respects to the Credit Agreement and the other Loan Documents.]



The parties hereto have caused this Notice of Commitment Increase to be executed and
delivered, and the certification and warranties contained herein to be made, by its Authorized
Officer this __day of __________, 201__.




	 	 	 	 	 
	 	NOBLE ENERGY, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



					
	 	


ACKNOWLEDGED AND AGREED:



[Name of CI Lender]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



JPMORGAN CHASE BANK, N.A., as Administrative Agent

and as an Issuing Bank




					
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



________________, as an Issuing Bank




					
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.9  — Page 2





 









 








EXHIBIT 2.12




[FORM OF]

AGREEMENT SUPPLEMENT




[DATE]




To each of the Lenders and Issuing Banks

     under the Agreement referred to below



Ladies and Gentlemen:





     Reference is made to the Agreement dated as of October 11, 2011 (as may be amended, amended
and restated, supplemented or otherwise modified from time to time, the “Agreement”), among
NOBLE ENERGY, INC., a Delaware corporation (the “Borrower”), JPMORGAN CHASE BANK, N.A.
(“JPMCB”), as Administrative Agent, CITIBANK, N.A, as Syndication Agent, BANK OF AMERICA,
N.A., MIZUHO CORPORATE BANK, LTD. and MORGAN STANLEY MUFG LOAN PARTNERS, LLC, as Documentation
Agents, and certain commercial lending institutions as are or may become parties hereto
(collectively, the “Lenders”). Terms defined in the Agreement are used herein with the
same meaning.



     [NAME AND JURISDICTION OF ORGANIZATION OF FOREIGN BORROWER] (the “Foreign Borrower”),
in consideration of the agreement of each Lender to extend credit to it from time to time under,
and on the terms and conditions set forth in, the Agreement does hereby assume each of the
obligations imposed upon an Foreign Borrower under the Agreement and agrees to be bound by all of
the terms and conditions of the Agreement applicable to a Foreign Borrower.



     1. The Foreign Borrower hereby agrees, as of the date first above written, to be bound as a
Foreign Borrower by all of the terms and conditions of the Agreement to the same extent as each of
the other Foreign Borrowers as if it had been a party thereto as a Foreign Borrower. The Foreign
Borrower further agrees, as of the date first above written, that each reference in the Agreement
to a “Foreign Borrower” shall, as and where the context requires also mean and be a
reference to the Foreign Borrower; and each reference in any other Loan Document to a “Foreign
Borrower” shall also, as and where the context requires, be a reference to the Foreign
Borrower.



     2. The Foreign Borrower hereby represents and warrants, as if it were the Borrower, to the
Administrative Agent and each of the Lenders participating in the Foreign Borrower Facility
available to the Foreign Borrower that the representations and warranties contained in Sections 6.1
(as to the foreign jurisdiction in which the Foreign Borrower is organized), 6.2, 6.3, 6.4, 6.12,
6.13, 6.14 are correct on and as of the date hereof as though made on and as of such date other
than any such representations and warranties that, by their terms, refer to a date other than the
date hereof, in which case as of such specific date, and, for the avoidance of doubt, as though
references in such Sections to “the Borrower” referred to the Foreign Borrower.



Exhibit 2.12  — Page 1




 









 








     3. [Note: Add language re foreign tax withholding if applicable per Foreign Borrower
jurisdiction.]3



     4. Pursuant to the terms of the Agreement, the Administrative Agent and each of the Lenders
participating in the Foreign Borrower Facility available to the Foreign Borrower hereby indicates
its approval.



     (a) This supplement to the Agreement (this “Agreement Supplement”) shall be governed
by, and construed and enforced in accordance with, the laws of the State of Texas.



     (b) The Foreign Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the states of Texas and New York and
the United States District Court for the Southern District of Texas and the Southern District of
New York, in any action or proceeding arising out of or relating to this Agreement Supplement or
the other Loan Documents, or for recognition or enforcement of any judgment; and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Texas or New York state court or, to the
extent permitted by law, in such Texas or New York federal court. The Foreign Borrower further
irrevocably consents to the service of process in any action or proceeding in such courts by the
mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the
Foreign Borrower at the address specified for the Loan Parties in Section 10.2 of the Agreement.
The Foreign Borrower hereby further agrees that service of process in any such action or proceeding
brought in any such Texas or New York state court or in any such Texas or New York federal court
may be made upon the Borrower at its address specified in Section 10.2 of the Agreement, and the
Foreign Borrower hereby irrevocably appoints the Borrower as its authorized agent (the “Process
Agent”) to accept such service of process, and hereby irrevocably agrees that the failure of
the Borrower to give any notice of such service to the Foreign Borrower shall not impair or affect
the validity of such service or of any judgment rendered in any action or proceeding based thereon.
Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement Supplement shall affect any right that any
Lender or any Issuing Bank may otherwise have to bring any action or proceeding relating to this
Agreement Supplement or the other Loan Documents against any Borrower or any Loan Party or their
properties in the courts of any jurisdiction.



     (c) The Foreign Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
Supplement or the other Loan Documents in any Texas or New York state or federal





 




			
	3	 	[Note to Administrative Agent and Lenders:
The credit agreement excludes all day-one withholding from the gross-up,
including non-US withholding. This agreement should either contain provisions
to address those withholding taxes as well as any other withholding taxes that
would be imposed by the jurisdiction of the proposed foreign borrower prior to
consenting to the addition of that foreign borrower.]





Exhibit 2.12  — Page 2






 









 







court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.




     5. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE
LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.



	 	 	 	 	 
	 	Very truly yours,





[NAME OF FOREIGN BORROWER]

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address:  	 	 
	 
	 	Accepted and Agreed with respect to its appointment

as Process Agent, as set forth in paragraph 4(b):



NOBLE ENERGY, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.12  — Page 3




 









 








	 	 	 	 	 
	 	Accepted and Agreed:



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 2.12  — Page 4





 









 








EXHIBIT 5.1.4




FORM OF OPINION OF COUNSEL




October ___, 2011




JPMorgan Chase Bank, N.A., as Administrative Agent,

and the Lenders presently parties to the

Credit Agreement referred to below

1111 Fannin Street, 10th Floor

Houston, Texas 77002



Ladies and Gentlemen:





     We have acted as special counsel for Noble Energy, Inc., a Delaware corporation (the
“Company”), in connection with the transactions contemplated by the Credit Agreement dated
as of October 14, 2011 (the “Credit Agreement”), among the Company, JPMorgan Chase Bank,
N.A., individually and as Administrative Agent, Citibank, N.A., as Syndication Agent, Bank of
America, N.A., Mizuho Corporate Bank, Ltd. and Morgan Stanley MUFG Loan Partners, LLC, as
Documentation Agents, and the Lenders named therein. This opinion letter is furnished to you
solely for purposes of complying with the requirements of Section 5.1.4 of the Credit Agreement.
Capitalized terms that are defined in the Credit Agreement and are used but not defined herein have
the meanings given them in the Credit Agreement.



     In connection with this opinion letter, we have examined an original counterpart or a copy of
an original counterpart of the Credit Agreement. We have also examined originals or copies of such
other records of the Company, certificates of public officials and of officers or other
representatives of the Company and agreements and other documents as we have deemed necessary,
subject to the assumptions set forth below, as a basis for the opinions expressed below.



     In rendering the opinions expressed below, we have assumed:




     (i) The genuineness of all signatures.




     (ii) The authenticity of the originals of the documents submitted to us.




     (iii) The conformity to authentic originals of any documents submitted to us as copies.




     (iv) As to matters of fact, the truthfulness of the representations made or otherwise
incorporated in the Credit Agreement and representations and statements made in certificates
of public officials and officers or other representatives of the Company.



Exhibit 5.1.4  — Page 1





 









 








     (v) That the Credit Agreement constitutes the valid, binding and enforceable obligation of
each party thereto (other than the Company).


(vi) That:




     (A) The execution, delivery and performance by the Company of the Credit Agreement do not:



     (1) except with respect to Applicable Laws (and (I) the laws, rules and regulations referred
to in qualification (a)(i) insofar as they relate to our opinions in paragraphs 1, 2 and 5(a) and
(II) the laws, rules and regulations referred to in paragraphs 5(c) and 7, insofar as they relate
to the matters referred to therein), violate any law, rule or regulation applicable to it, or



     (2) result in any conflict with or breach of any agreement or document binding on it (other
than any Applicable Contract (as defined below)) of which any addressee hereof has knowledge, has
received notice or has reason to know.



     (B) Except as required by Applicable Laws (and (I) the laws, rules and regulations referred to
in qualification (a)(i) insofar as they relate to our opinions in paragraphs 1, 2 and 5(a) and (II)
the laws, rules and regulations referred to in paragraphs 5(c) and 7, insofar as they relate to the
matters referred to therein), no authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or (to the extent the same is required
under any agreement or document binding on it of which an addressee hereof has knowledge, has
received notice or has reason to know, other than any Applicable Contract) any other third
party  is required for the due execution, delivery or performance by the Company of the
Credit Agreement or, if any such authorization, approval, action, notice or filing is required, it
has been duly obtained, taken, given or made and is in full force and effect.



     (vii) That the Company was not induced by fraud to enter into the Credit Agreement.



     (viii) With respect to our opinion in paragraph 4, to the extent relating to usury, that no
fees, sums or other benefits, whether direct or indirect, have been paid or received or are, or may
be, payable to or receivable by the Lenders except as expressly set forth in the Credit Agreement
and in the Fee Letter referred to therein.



     We have not independently established the validity of the foregoing assumptions.



     As used herein, “Applicable Laws” means those laws, rules and regulations of the State
of Texas, and the federal laws, rules and regulations of the United States of America, that in our
experience are normally applicable to the Company, the Credit Agreement or transactions of the type
contemplated by the Credit Agreement. However, the term “Applicable Laws” does not include:



     (i) Any state or federal laws, rules or regulations relating to: (A) pollution or protection
of the environment; (B) zoning, land use, building or construction; (C) occupational safety and
health or other similar matters; (D) labor or employee rights and benefits, including without
limitation the Employee Retirement Income Security Act of 1974, as amended; (E) the regulation of
utilities; (F) antitrust and trade regulation; (G) tax; (H) securities, including without



Exhibit 5.1.4  — Page 2




 









 







limitation federal and state securities laws, rules or regulations and the Investment Company Act
of 1940, as amended; (I) corrupt practices, including without limitation the Foreign Corrupt
Practices Act of 1977; and (J) copyrights, patents, service marks and trademarks.




     (ii) Any laws, rules or regulations of any county, municipality or similar political
subdivision or any agency or instrumentality thereof.



     (iii) Any laws, rules or regulations that are applicable to the Company, the Credit Agreement
or the transactions contemplated thereby solely because such laws, rules or regulations are part of
a regulatory regime applicable to any party to the Credit Agreement or any of its affiliates
because of the specific assets or business of such party or such affiliate.



     Based upon the foregoing, and subject to the qualifications and limitations herein set forth,
we are of the opinion that:



     1. The Company is a corporation that is validly existing and in good standing under the laws
of the State of Delaware.



     2. The Company (a) has the corporate power to execute, deliver and perform its obligations
under the Credit Agreement, (b) has taken all corporate action necessary to authorize the
execution, delivery and performance of the Credit Agreement, and (c) has duly executed and
delivered the Credit Agreement.



     3. Based solely on certificates of public officials, the Company was in good standing and
authorized to do business in each state specified in Schedule I.B hereto as of the date specified
in such Schedule.



     4. The Credit Agreement is the Company’s valid and binding obligation, enforceable against it
in accordance with the terms thereof.



     5. The execution and delivery by the Company of the Credit Agreement do not, and the
performance by the Company of its obligations thereunder will not, (a) violate the certificate of
incorporation or bylaws of the Company, (b) breach or result in a default or the creation of any
lien under any agreement or instrument listed in Schedule I.C hereto (the “Applicable
Contracts”) or (c) result in a violation by the Company of any Applicable Laws or Regulation X
of the Board of Governors of the Federal Reserve System).



     6. No authorization, approval or other action by, and no notice to or filing with, any United
States federal or Texas governmental authority or regulatory body, or any third party
that is a party to any Applicable Contract, is required under Applicable Laws for the due
execution, delivery or performance by the Company of the Credit Agreement, except for
authorizations, approvals, actions, notices and filings required in connection with the conduct of
the Company’s business or maintenance of the Company’s existence or good standing.



     7. Neither the Company nor any of its Subsidiaries is, or as a result of the transactions
contemplated by the Credit Agreement will be, required to register as an investment company under
the Investment Company Act of 1940, as amended.



Exhibit 5.1.4  — Page 3





 









 








     The opinions set forth above are subject to the following qualifications and exceptions:



     (a) Our opinions are limited to Applicable Laws and also (i) in the case of our opinions in
paragraphs 1, 2 and 5(a), the Delaware General Corporation Law, but only to the extent based on our
review of the Delaware General Corporation Law, without consideration of any judicial or
administrative interpretations thereof; (ii) in the case of our opinion in paragraph 5(c),
Regulation X of the Board of Governors of the Federal Reserve System; and (iii) in the case of our
opinion in paragraph 7, the Investment Company Act of 1940, as amended; and we do not express any
opinion herein concerning any other laws.



     (b) Our opinions are subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium or similar laws affecting the rights and remedies of creditors generally.



     (c) Our opinions are subject to general principles of equity exercisable in the discretion of
a court (including without limitation obligations and standards of good faith, fair dealing,
materiality and reasonableness and defenses relating to unconscionability or to impracticability or
impossibility of performance).



     (d) With respect to our opinion in paragraph 1, we have relied exclusively upon the
certificates of public officials described in Schedule I.A hereto.



     (e) We express no opinion in paragraph 4 with respect to any provision of the Agreement
relating to letters of credit, to the extent that the enforceability of such provision would be
limited by Section 5-103(c) of the Uniform Commercial Code as currently in effect in the State of
Texas.



     (f) We express no opinion in paragraph 4 with respect to the validity or enforceability of the
following:



     (i) Provisions releasing, exculpating or exempting a party from, or requiring indemnification
of a party for, or waiving, liability for its own action or inaction, to the extent that such
provisions are inconsistent with public policy regarding violations of securities laws or such
action or inaction involves strict liability, gross negligence, recklessness, willful misconduct,
unlawful conduct, fraud or illegality or to the extent that such provisions relate to punitive,
exemplary, special or similar damages.



     (ii) Provisions of the Credit Agreement restricting access to courts or to legal or equitable
remedies or purporting to affect the jurisdiction or venue, or purporting to provide for the
exclusive jurisdiction, of courts or providing for service of process other than in accordance with
applicable law.



     (iii) Provisions waiving the right to trial by jury for any claims other than contractual
claims arising under the Credit Agreement.



     (g) We express no opinion as to whether the fees designated in the Credit Agreement or in the
Fee Letter referred to therein as closing or commitment fees and other fees and expenses payable to
the Lenders pursuant to the Credit Agreement are interest or in certain cases



Exhibit 5.1.4  — Page 4





 









 







whether such fees
should be deducted from the principal of the Loans in determining the interest chargeable on the
Loans.




     This opinion letter may be relied upon by your permitted assignees under the Credit Agreement
as if this opinion letter were addressed and delivered to such assignees on the date hereof,
provided that such reliance must be actual and reasonable under the circumstances existing at the
time of assignment, including circumstances relating to any change in law or fact or any other
development known to or reasonably knowable by the assignee at such time.



     This opinion letter is rendered to you in connection with the transactions contemplated by the
Credit Agreement. Without our prior written consent, this opinion letter may not be relied upon by
any person other than you or any person entitled to rely on this opinion letter pursuant to the
preceding paragraph, or by you, or any such person that is so entitled to rely on this opinion
letter, for any other purpose.



     This opinion letter has been prepared, and is to be understood, in accordance with customary
practice of lawyers who regularly give and lawyers who regularly advise recipients regarding
opinions of this kind, is limited to the matters expressly stated herein and is provided solely for
purposes of complying with the requirements of the Credit Agreement, and no opinions may be
inferred or implied beyond the matters expressly stated herein. The opinions expressed herein are
rendered and speak only as of the date hereof and we specifically disclaim any responsibility to
update such opinions subsequent to the date hereof or to advise you of subsequent developments
affecting such opinions. We note that we only represent the Company and its affiliates with
respect to specific transactions, including the transactions contemplated by the Credit Agreement,
and we are not general outside counsel for the Company and its affiliates.



	 	 	 	 	 
	 	Respectfully submitted,

 	 



Exhibit 5.1.4  — Page 5





 









 








EXHIBIT 10.10




[Form of]



LENDER ASSIGNMENT AGREEMENT




     Reference is made to that certain Credit Agreement, dated as of October 14, 2011 (as may be
amended, supplemented, restated or otherwise modified from time to time, the “Credit
Agreement”), among Noble Energy, Inc., a Delaware corporation (the “Borrower”),
JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, together with any
successor(s) thereto in such capacity, the “Administrative Agent”), the other agents party
thereto, and certain commercial lending institutions as are or may become Lenders thereunder.
Terms defined in the Credit Agreement are used herein with the same meanings, receipt of which is
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Lender
Assignment Agreement as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions contained in Annex 1 hereto and the terms
and conditions of Section 10.10 of the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (a) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and every other Loan Document to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below (including any letters
of credit, guarantees and Swingline Loans included in such facilities) and (b) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other Loan Document, or in any way
based on or related to any of the foregoing, including, but not limited to, contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in equity related to
the rights and obligations sold and assigned pursuant to clause (a) above (the rights and
obligations sold and assigned pursuant to clauses (a) and (b), collectively, the “Assigned
Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Lender Assignment Agreement, without representation or warranty by the
Assignor.



     THIS LENDER ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF TEXAS.



	 	 	 	 	 	 	 	 	 

	 

	 	 	(1	)	 	Legal Name of Assignor:
	 	__________________________
	 
	 	 	 	 	 	 	 	 
	 

	 	 	(2	)	 	Legal Name of Assignee:
	 	__________________________

[and is a Lender/Lender Affiliate of 
[identify Lender]] 4








 




			
	4	 	Select as applicable.





Exhibit 10.10 — Page 1






 









 









	 	(3)	 	Assignee’s Address for Notices: __________________________
	 
	 	(4)	 	Borrower: Noble Energy, Inc., a Delaware corporation
	 
	 	(5)	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 
	Aggregate Amount of	 	Principal Amount of	 	 	 	 
	Commitment/Loans for	 	Commitment/Loans	 	 	Percentage Assigned	 
	all Lenders	 	Assigned	 	 	of Commitment/Loans	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 
	$
	 	$	 	 	 	 	%	 






Exhibit 10.10  — Page 2






 









 








     Effective Date: ___________ __, 201__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFORE.]



     The terms set forth in this Lender Assignment Agreement are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR



[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ASSIGNEE



[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Consented to and Accepted:



JPMORGAN CHASE BANK, N.A., as
 Administrative Agent and as Issuing Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 10.10 — Page 3






 









 








	 	 	 	 	 
	 	______________, as an Issuing Bank

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Consented to:



NOBLE ENERGY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit 10.10  — Page 4




 









 








ANNEX I to Lender Assignment Agreement




STANDARD TERMS AND CONDITIONS FOR




LENDER ASSIGNMENT AGREEMENT




     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim created by such Assignor and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Lender Assignment
Agreement and to consummate the transactions contemplated hereby; and (b) assumes no responsibility
with respect to (i) any statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents, (iii) the financial
condition of Borrower or any of its Subsidiaries or Affiliates, or any other Person obligated with
respect to the Credit Agreement or any other Loan Document or (iv) the performance or observance by
Borrower or any of its Subsidiaries or Affiliates, or any other Person of any of their respective
obligations under the Credit Agreement or any other Loan Document.



     1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Lender Assignment
Agreement and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements under the Credit Agreement with respect to the
transactions contemplated hereby (subject to receipt of such consents as may be required under the
Credit Agreement), (iii) subject to acceptance and recording hereof pursuant to Section 10.10 of
the Credit Agreement, from and after the Effective Date, it shall be party to the Credit Agreement
and to the other Loan Documents and be bound by the provisions of the Credit Agreement as a Lender
thereunder and to the other Loan Documents and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, and (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Sections
7.1.1(a) and (b) thereof, as applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Lender Assignment
Agreement and to purchase the Assigned Interest on the basis of which it has made such analysis and
decision independently and without reliance on the Administrative Agent or any other Lender; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement and the other Loan Documents are required to
be performed by it as a Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts that have accrued to but excluding the



Exhibit 10.10 — Page 5





 









 







Effective
Date and to the Assignee for amounts that have accrued from and after the Effective Date.




     3. General Provisions. This Lender Assignment Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
This Lender Assignment Agreement may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a signature page of this
Lender Assignment Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Lender Assignment Agreement.



Exhibit 10.10  — Page 6