exv10w2



 





Exhibit 10.2




Execution Version



 




$24.0 BILLION 364-DAY TERM LOAN AGREEMENT




Dated as of August 10, 2006




among




ANADARKO PETROLEUM CORPORATION,




As Borrower,




UBS AG, STAMFORD BRANCH,




As Administrative Agent,




CREDIT SUISSE, CAYMAN ISLANDS BRANCH




and




CITICORP NORTH AMERICA, INC.,




As Co-Syndication Agents




and




THE LENDERS SIGNATORY HERETO




 



			
	UBS Securities LLC
	 	Credit Suisse Securities (USA) LLC






Citigroup Global Markets Inc.

Co-Advisors and Joint-Lead Arrangers





			
	UBS Securities LLC
	 	Credit Suisse Securities (USA) LLC






Joint Bookrunning Managers



 














 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	 	 	 	 	 
	Section 1.01
	 	Defined Terms	 	 	1	 
	Section 1.02
	 	Use of Defined Terms	 	 	12	 
	Section 1.03
	 	Accounting Terms	 	 	13	 
	Section 1.04
	 	Interpretation	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF LOANS	 	 	13	 
	 
	 	 	 	 	 	 
	Section 2.01
	 	Loans	 	 	13	 
	Section 2.02
	 	Repayment of Loans; Evidence of Debt	 	 	13	 
	Section 2.03
	 	Procedure for Borrowings	 	 	14	 
	Section 2.04
	 	Reserved	 	 	15	 
	Section 2.05
	 	Reserved	 	 	15	 
	Section 2.06
	 	Termination of Commitments	 	 	15	 
	Section 2.07
	 	Optional Prepayments	 	 	16	 
	Section 2.08
	 	Mandatory Prepayments and Commitment Reductions	 	 	16	 
	Section 2.09
	 	Facility Fees	 	 	17	 
	Section 2.10
	 	Interest	 	 	17	 
	Section 2.11
	 	Computation of Interest and Facility Fee	 	 	18	 
	Section 2.12
	 	Funding of Loans	 	 	19	 
	Section 2.13
	 	Pro Rata Treatment and Payments	 	 	19	 
	Section 2.14
	 	Increased Cost of Loans	 	 	21	 
	Section 2.15
	 	Illegality	 	 	23	 
	Section 2.16
	 	Taxes	 	 	23	 
	Section 2.17
	 	Substitute Loan Basis	 	 	25	 
	Section 2.18
	 	Certain Prepayments or Continuations	 	 	25	 
	Section 2.19
	 	Certain Notices	 	 	25	 
	Section 2.20
	 	Reserved	 	 	25	 
	Section 2.21
	 	Minimum Amounts of Eurodollar Loans	 	 	25	 
	Section 2.22
	 	Break Funding Payments	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES	 	 	26	 
	 
	 	 	 	 	 	 
	Section 3.01
	 	Representations of the Borrower	 	 	26	 
	Section 3.02
	 	Western Gas Representations of the Borrower	 	 	28	 
	Section 3.03
	 	Kerr-McGee Representations of the Borrower	 	 	30	 
	 
	 	 	 	 	 	 
	ARTICLE IV AFFIRMATIVE COVENANTS	 	 	32	 
	 
	 	 	 	 	 	 
	Section 4.01
	 	Financial Statements and Other Information	 	 	32	 
	Section 4.02
	 	Notices of Material Events	 	 	33	 






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	 	 	 	Page	 
	Section 4.03
	 	Compliance with Laws	 	 	33	 
	Section 4.04
	 	Use of Proceeds	 	 	33	 
	Section 4.05
	 	Compliance with Indenture	 	 	33	 
	Section 4.06
	 	Insurance	 	 	34	 
	Section 4.07
	 	Pro Forma Financial Statements	 	 	34	 
	 
	 	 	 	 	 	 
	ARTICLE V NEGATIVE COVENANTS	 	 	34	 
	 
	 	 	 	 	 	 
	Section 5.01
	 	Limitation on Certain Secured Indebtedness	 	 	34	 
	Section 5.02
	 	Limitations on Sales and Leasebacks	 	 	34	 
	Section 5.03
	 	Fundamental Changes	 	 	35	 
	 
	 	 	 	 	 	 
	ARTICLE VI CONDITIONS OF LENDING	 	 	35	 
	 
	 	 	 	 	 	 
	Section 6.01
	 	Conditions Precedent to this Agreement	 	 	35	 
	Section 6.02
	 	Conditions Precedent to the Western Gas Advance	 	 	38	 
	Section 6.03
	 	Conditions Precedent to the Kerr-McGee Advance	 	 	39	 
	 
	 	 	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT	 	 	41	 
	 
	 	 	 	 	 	 
	Section 7.01
	 	Events of Default	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE VIII THE AGENTS	 	 	43	 
	 
	 	 	 	 	 	 
	Section 8.01
	 	Powers	 	 	43	 
	Section 8.02
	 	Exculpatory Provisions	 	 	43	 
	Section 8.03
	 	Right to Indemnity	 	 	43	 
	Section 8.04
	 	Delegation of Duties	 	 	44	 
	Section 8.05
	 	Reliance by Administrative Agent	 	 	44	 
	Section 8.06
	 	Rights as a Lender	 	 	44	 
	Section 8.07
	 	Non-Reliance on Agents or other Lenders	 	 	45	 
	Section 8.08
	 	Events of Default	 	 	45	 
	Section 8.09
	 	Successor Administrative Agent	 	 	45	 
	Section 8.10
	 	Co-Advisors; Joint-Lead Arrangers and Co-Syndication Agents	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE IX MISCELLANEOUS	 	 	46	 
	 
	 	 	 	 	 	 
	Section 9.01
	 	Notices	 	 	46	 
	Section 9.02
	 	Waivers; Amendments	 	 	46	 
	Section 9.03
	 	Expenses; Indemnity; Damage Waiver	 	 	47	 
	Section 9.04
	 	Successors and Assigns	 	 	48	 
	Section 9.05
	 	Survival	 	 	51	 
	Section 9.06
	 	Counterparts; Integration; Effectiveness	 	 	51	 
	Section 9.07
	 	Severability	 	 	51	 
	Section 9.08
	 	Right of Setoff	 	 	51	 
	Section 9.09
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	52	 
	Section 9.10
	 	WAIVER OF JURY TRIAL	 	 	52	 
	Section 9.11
	 	Headings	 	 	52	 






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	 	 	 	Page	 
	Section 9.12
	 	Confidentiality	 	 	53	 
	Section 9.13
	 	Termination and Substitution of Lender	 	 	53	 
	Section 9.14
	 	USA Patriot Act Notice	 	 	54	 






Schedules and Exhibits:




	 	 	 
	Annex I

	 	(List of Commitments)
	Schedule I

	 	(Pricing Schedule)
	Schedule II

	 	(Significant Subsidiaries)
	Schedule III

	 	(Sources and Uses)
	Exhibit A

	 	(Form of Note)
	Exhibit B

	 	(Assignment and Assumption)






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     This 364-Day Term Loan Agreement is made as of August 10, 2006 (the “Effective Date”), by and
among ANADARKO PETROLEUM CORPORATION, a corporation organized under the laws of the State of
Delaware (the “Borrower”), UBS AG, STAMFORD BRANCH, individually (“UBS”) and as Administrative
Agent (herein, together with its successors in such capacity, the “Administrative Agent”), CREDIT
SUISSE, CAYMAN ISLANDS BRANCH (“Credit Suisse”) and CITICORP NORTH AMERICA, INC. (“Citibank”), as
co-syndication agents (herein, the “Co-Syndication Agents”), and each of the Lenders that is a
signatory hereto or which becomes a signatory hereto pursuant to Section 9.04 (individually,
together with its successors and assigns, a “Lender” and collectively, the “Lenders”).



     In consideration of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:



ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




     Section 1.01 Defined Terms. As used in this Agreement, and unless the context otherwise requires,
the following terms shall have the meanings set out respectively after each:



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



     “Affected Loans” — as defined in Section 2.18.



     “Affiliate” — with respect to any Person, another Person that directly or indirectly (through
one or more intermediaries) Controls or is Controlled by or is under common Control with the Person
specified.



     “Agents” — each of the Administrative Agent and the Co-Syndication Agents.



     “Agreement” — this 364-Day Term Loan Agreement, as the same may be amended, modified,
supplemented or restated from time to time in accordance with the terms hereof.



     “Alternate Base Rate” — the greater of (i) the sum of the Federal Funds Effective Rate from
time to time, plus one half percent (0.5%) and (ii) the prime commercial lending rate of UBS as
published from time to time by UBS. The Alternate Base Rate is not intended to be the lowest rate
of interest charged by UBS in connection with extensions of credit to debtors.



     “Alternate Base Rate Loans” — any Loan hereunder at all times when it bears interest at a
rate based upon the Alternate Base Rate.



     “Applicable Percentage” — with respect to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the percentage of the outstanding principal
balance of the Loans of all Lenders represented by such Lender’s Loans.



     “Asset Sale” — any Disposition of property or series of related Dispositions of property that
yields Net Cash Proceeds to the Borrower or any of its Subsidiaries in excess of



1









 




$100,000,000; provided that any time the Net Cash Proceeds of such Disposition or all such
Dispositions shall aggregate more than $250,000,000 then all such Dispositions shall constitute
“Asset Sales”; provided further that “Asset Sale” shall not include: (a) the Disposition of
obsolete or worn out equipment in the ordinary course of business; (b) the Disposition of inventory
in the ordinary course of business; (c) any Disposition by the Borrower or a Subsidiary of the
Borrower of any or all of its assets to the Borrower or any wholly-owned Subsidiary of the Borrower
(upon voluntary liquidation or otherwise); and (d) any Disposition of Capital Stock of a Subsidiary
of the Borrower to the Borrower or to any wholly-owned Subsidiary.




     “Assignment and Assumption” — an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by
the Administrative Agent, in the form of Exhibit B or any other form approved by the
Administrative Agent.



     “Attributable Debt” — any particular sale and leaseback transaction under which the Borrower
or any Subsidiary is at the time liable, at any date as of which the amount thereof is to be
determined (a) in the case of any such transaction involving a capital lease, the amount on such
date capitalized thereunder, or (b) in the case of any other sale and leaseback transaction, the
then present value of the minimum rental obligations under such sale and leaseback transaction
during the remaining term thereof (after giving effect to any extensions at the option of the
lessor) computed by discounting the respective rental payments at the actual interest factor
included in such payments or, if such interest factor cannot be readily determined, at the rate of
ten percent (10%) per annum. The amount of any rental payment required to be made under any such
sale and leaseback transaction not involving a capital lease may exclude amounts required to be
paid by the lessee on account of maintenance and repairs, insurance, taxes, assessments, utilities,
operating and labor costs and similar charges.



     “Audited Financial Statements” — as defined in Section 6.01(d).



     “Availability Period” — the period from and including the Effective Date to the Business Day
that falls on the earliest of (i) the consummation of the Kerr-McGee Acquisition or the Western Gas
Acquisition, whichever is later, (ii) the date upon which the Commitments have been terminated or
the maturity of the Loans shall have been accelerated pursuant to Article VII, and (iii) January
10, 2007.



     “Bankruptcy Laws” —Title 11 of the United States Code entitled “Bankruptcy”, as amended from
time to time and any similar other applicable law or statute in any other jurisdiction, as amended
from time to time.



     “Borrowing Date” — as defined in Section 2.03.



     “Borrowing Request” — a request by the Borrower for the borrowing of the Loans during the
Availability Period in accordance with Section 2.03.



     “Business Day” — any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City, New York are authorized or required by law to remain closed; provided that
when used in connection with a Eurodollar Loan, the term “Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.



2









 








     “Capital Stock” — any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or options to purchase any of
the foregoing.



     “Change of Control” — (a) the acquisition by any Person or two or more Persons acting in
concert of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act as
promulgated by the Commission) of 50% or more of the outstanding shares of voting stock of the
Borrower, unless the Board of Directors of the Borrower shall have publicly announced its support
for such acquisition or (b) a majority of the members of the Board of Directors of the Borrower on
any date shall not have been (i) members of the Board of Directors of the Borrower on the date
twelve (12) months prior to such date or (ii) approved by Persons who constitute at least a
majority of the members of the Board of Directors of the Borrower as constituted on the date 12
months prior to such date.



     “Code” — the Internal Revenue Code of 1986, as amended from time to time.



     “Commission” — the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Agreement such
Commission is not existing and performing the duties now assigned to it, then the body performing
such duties at such time.



     “Commitment” — with respect to each Lender, such Lender’s Western Gas Commitment and such
Lender’s Kerr-McGee Commitment.



     “Control” — the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract, or otherwise. “Controlling” and “Controlled” have meanings correlative
thereto.



     “Co-Syndication Agents” — as defined in the preamble hereof.



     “Default” — an event which with the giving of notice or the passage of time, or both, would
constitute an Event of Default.



     “Defaulting Lender” — any Lender that shall (a) fail to make a Loan required to be made by it
hereunder or (b) state in writing that it will not make, or that it has disaffirmed or repudiated
its obligation to make, any Loan required to be made by it hereunder.



     “DGCL” — the General Corporation Law of the State of Delaware as in effect on the Effective
Date.



     “Disposition” — with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof that yields Net Cash Proceeds in
excess of $5,000,000. The pledge of or granting of a security interest in particular property will



3









 







not constitute a Disposition of such property until such time, if any, as such pledge or
security interest is realized upon. The terms “Dispose” and “Disposed of” shall have correlative
meanings.



     “Documentation Agents” — as defined in the preamble hereof.



     “Dollars” or “$” — lawful money of the United States of America.



     “Domestic Lending Office” — initially, the office of a Lender designated as such in its
Administrative Questionnaire, and thereafter such other office of such Lender, if any, of which
such Lender shall have most recently notified the Administrative Agent and the Borrower in writing.



     “Effective Date” — as defined in the preamble.



     “ERISA” — the Employee Retirement Income Security Act of 1974, as amended from time to time.



     “ERISA Affiliate” — any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.



     “ERISA Event” — (a) any “reportable event,” as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived,
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate from the
Pension Benefit Guaranty Corporation or a plan administrator of any notice relating to an intention
to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of withdrawal liability under Section 4202 of
ERISA, or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.



     “Eurodollar Lending Office” — initially, the office of a Lender designated as such in its
Administrative Questionnaire, and thereafter such other office of such Lender, if any, of which
such Lender shall have most recently notified the Administrative Agent and the Borrower in writing.



     “Eurodollar Loan” — any Loan hereunder at all times when it bears interest at a rate based
upon the Eurodollar Rate.



4









 





     “Eurodollar Margin” — a rate per annum determined in accordance with the Pricing Schedule.



     “Eurodollar Rate” for any Interest Period with respect to a Eurodollar Loan, the rate reported
by Bloomberg L.P. in its index of rates (or any successor to or substitute for such index,
providing rate quotations comparable to those currently provided on such page of such index, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate
for Dollar deposits with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “Eurodollar Rate” with respect to such
Eurodollar Loan for such Interest Period shall be the rate at which Dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest
Period.



     “Event of Default” — any of the events of default set forth in Article VII.



     “Excepted Indebtedness” — (a) commercial paper sold or issued by the Borrower or any
Subsidiary of the Borrower and Indebtedness under the Revolving Credit Agreement; provided that the
aggregate amount of all Indebtedness under this clause (a) shall not exceed One Billion Five
Hundred Million Dollars ($1,500,000,000), (b) Indebtedness incurred to refinance Indebtedness with
a scheduled maturity that occurs after the Effective Date but prior to the Maturity Date, (c)
Indebtedness the Net Cash Proceeds of which are used to refinance Indebtedness of Kerr-McGee and
its Subsidiaries or Western Gas and its Subsidiaries existing on the Effective Date, (d) any
obligations existing as of the Effective Date in respect of the sale of net profits interests or
other rights in respect of production proceeds from oil and gas properties and any further such
obligations arising after the Effective Date resulting in additional Indebtedness under this clause
(d) in an aggregate amount not to exceed $500,000,000, (e) Indebtedness incurred to refinance
Indebtedness in the amount of $214,265,000 of Anadarko Realty Company under that certain Amended
and Restated Participation Agreement dated as of June 23, 2003 among Anadarko Realty Company, as
lessee, Borrower as guarantor, Wachovia Development Corporation as lessor, Wachovia Bank, National
Association as administrative agent and the lenders named as credit note purchasers and the lenders
named as lessor lenders, which agreement is secured by the Amended and Restated Lease dated as of
June 23, 2003 between Anadarko Realty Company as lessee and mortgagor and Wachovia Development
Corporation as lessor and mortgagee and (f) any Indebtedness of (i) the Borrower to any Subsidiary
or (ii) any Subsidiary to the Borrower or any other Subsidiary.



     “Exchange Act” — the Securities Exchange Act of 1934, as amended.



     “Excess Commitment” — as defined in Section 9.13.



     “Excluded Taxes” — with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the



5









 







United States or by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, and (c) in the case of a
Foreign Lender, any withholding tax that is imposed in respect of amounts payable by the Borrower
in respect of the Commitment or Loans of such Foreign Lender by the United States of America or by
any other jurisdiction in which such Lender is organized, has its principal office or its
applicable lending office on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office) or is attributable to such
Foreign Lender’s failure to comply with Section 2.16(e) except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.16(e).



     “Federal Funds Effective Rate” — for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight US Federal funds transactions with
members of the US Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Foreign Lender” — any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.



     “GAAP” — generally accepted accounting principles in the United States of America, as in
effect from time to time.



     “Governmental Authority” — the government of the United States, any other nation or any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government.



     “Indebtedness” — any indebtedness which (a) is for money borrowed, (b) represents the
deferred purchase price of property or assets purchased, except trade accounts payable in the
ordinary course of business, (c) is in respect of a capitalized lease, an advance payment or
production payment (other than in respect of advance payments or production payments received in
the ordinary course of business for hydrocarbons which must be delivered within 18 months after the
date of such payment) or (d) is in respect of a guarantee of any of the foregoing obligations of
another Person.



     “Indemnitee” — has the meaning specified in Section 9.03(b).



6









 





     “Indemnified Taxes” — Taxes other than Excluded Taxes.



     “Index Debt” — as defined in the Pricing Schedule.



     “Information” — as defined in Section 9.12.



     “Information Memorandum” — the Confidential Information Memorandum dated July 2006 relating
to the Borrower and the Transactions.



     “Interest Election Request” — as defined in Section 2.10(c).



     “Interest Payment Date” — (a) as to any Alternate Base Rate Loan, the end of any calendar
quarter with respect thereto and the Maturity Date and (b) as to any Eurodollar Loan, the last day
of the Interest Period with respect thereto, and, for Interest Periods longer than 3 months, each
date which is 3 months, or a whole multiple thereof, from the first day of such Interest Period.



     “Interest Period” — with respect to any Eurodollar Loan (i) initially, the period commencing
on the date of the Kerr-McGee Advance or Western Gas Advance, as applicable, or continuation date,
as the case may be, with respect to such Eurodollar Loan and ending 1, 2, 3, 6 or, to the extent
funds are available, as determined by the Administrative Agent, 9 months thereafter, as selected by
the Borrower in its Borrowing Request or Interest Election Request, as the case may be, given with
respect thereto, and (ii) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan and ending 1, 2, 3, 6 or, to the extent funds
are available, as determined by the Administrative Agent, 9 months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less than two Business Days prior to
the last day of the then current Interest Period with respect thereto; provided, that (A) if any
Interest Period would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the next preceding
Business Day, and (B) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar month of such
Interest Period.



     “Kerr-McGee” — Kerr-McGee Corporation, a Delaware corporation.



     “Kerr-McGee Acquisition Agreement” — that certain Agreement and Plan of Merger dated as of
June 22, 2006, among the Borrower, Kerr-McGee Merger Sub and Kerr-McGee and all other agreements,
instruments and documents executed in connection with the Kerr-McGee Merger.



     “Kerr-McGee Advance” — a single term loan comprised of Loans in an amount that shall not
exceed the aggregate amount of the Kerr-McGee Commitments and which term loan shall be used by the
Borrower to finance the Kerr-McGee Purchase Price, to refinance certain Indebtedness of Kerr-McGee
and its Subsidiaries and to pay related fees and expenses of the Kerr-McGee Merger all as
contemplated by the Sources and Uses.



7









 





     “Kerr-McGee Certificate of Merger” — the certificate of merger to be filed with the Secretary
of State of the State of Delaware in connection with the Kerr-McGee Merger in such form as required
by, and executed in accordance with, the relevant provisions of the DGCL.



     “Kerr-McGee Commitment” — with respect to each Lender, the commitment of such Lender to fund
its ratable share of the Kerr-McGee Advance during the Availability Period, as such commitment may
be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender’s Kerr-McGee Commitment is set forth on Annex I, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Kerr-McGee Commitment, as
applicable. The initial aggregate amount of the Lenders’ Kerr-McGee Commitments is Eighteen
Billion Dollars ($18,000,000,000).



     “Kerr-McGee MAE” — a material adverse effect on (a) the business, operations, assets,
liabilities, condition (financial or other) or results of operations of Kerr-McGee and its
subsidiaries considered as a single enterprise or (b) the ability of Kerr-McGee to perform its
obligations under the Kerr-McGee Acquisition Agreement or to consummate the transactions
contemplated thereby; provided, however, that any event, condition, change, occurrence or
development of a state of circumstances which (i) adversely affects the oil and gas exploration and
development industry generally (including changes in commodity prices, general market prices,
interest rates and regulatory changes), (ii) arises out of general political, economic or industry
conditions (and in each case does not disproportionately affect Kerr-McGee and its subsidiaries
considered as a single enterprise), (iii) results from or is caused by natural disasters (including
hurricanes), occurring after the date thereof (and in each case does not disproportionately affect
Kerr-McGee and its subsidiaries considered as a single enterprise) or (iv) (other than with respect
to Section 2.3(b) of the Kerr-McGee Acquisition Agreement) arise out of, result from or relate to
the transactions contemplated by the Kerr-McGee Acquisition Agreement or the announcement thereof,
shall not be considered in determining whether a Kerr-McGee MAE has occurred. As used in this
definition, “subsidiary” has the meaning given to such term in the Kerr-McGee Acquisition
Agreement.



     “Kerr-McGee Merger” — the merger of Kerr-McGee Merger Sub with and into Kerr-McGee pursuant
to the Kerr-McGee Acquisition Agreement.



     “Kerr-McGee Merger Sub” — APC Acquisition Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of the Borrower.



     “Kerr-McGee Purchase Price” — the consideration provided for in Section 1.6 and Section 1.8
of the Kerr-McGee Acquisition Agreement.



     “Lender” — as defined in the preamble hereof.



     “Loan” —a loan made by a Lender to the Borrower pursuant to this Agreement.



     “Loan Document(s)” — this Agreement, any Notes and each and every other agreement executed in
connection with this Agreement.



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     “Majority Lenders” — at any time, Lenders holding greater than 50% of the then aggregate
outstanding principal amount of the Loans or, if no Loans are then outstanding, the Lenders having
greater than 50% of the Commitments.



     “Material Adverse Change” — any change occurring since December 31, 2005, in the consolidated
financial position or results of operations of the Borrower and the Subsidiaries taken as a whole
that has had or could reasonably be expected to have the effect of preventing the Borrower from
carrying on its business or from meeting its current and anticipated obligations on a timely basis.



     “Maturity Date” — the date which is 364 days after the Effective Date.



     “Moody’s” — Moody’s Investors Service, Inc.



     “Multiemployer Plan” — a Plan which is a multiemployer plan as defined in section 3(37) or
4001 (a)(3) of ERISA.



     “Net Cash Proceeds” — (a) in connection with any issuance, sale, private placement or
incurrence of any Indebtedness or any Capital Stock of the Borrower or any of its Subsidiaries (to
the extent such issuance of Capital Stock of a Subsidiary does not constitute an Asset Sale), the
cash proceeds of such issuance, sale, private placement or incurrence net of attorneys’ fees,
accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions
and brokerage, consultant and other fees and charges actually incurred in connection with such
issuance, sale, private placement or incurrence; and (b) in connection with any Asset Sale or
Recovery Event, the cash proceeds thereof (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise), net of attorneys’ fees, accountants’ fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event and other
fees and charges actually incurred in connection therewith.



     “Note” — any promissory note of the Borrower payable to the order of a Lender in
substantially the form attached hereto as Exhibit A.



     “Notice of Default” — as defined in Section 8.08.



     “Other Taxes” — any and all present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this Agreement, other than
income, franchise and similar taxes and Excluded Taxes.



     “Participant” — as defined in Section 9.04(c)(i).



     “Plan” — any employee pension benefit plan, as defined in section 3(2) of ERISA, which (a) is
currently or hereafter sponsored, maintained or contributed to by the Borrower, a Subsidiary or an
ERISA Affiliate or (b) was at any time during the six calendar years preceding the date hereof,
sponsored, maintained or contributed to by the Borrower or a Subsidiary or an ERISA Affiliate.



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     “Person” — any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or political subdivision
thereof.



     “Pricing Schedule” — the schedule attached hereto as Schedule I and identified as
such.



     “Principal Property” — as defined in the Public Indenture.



     “Pro Form EBITDA” — as defined in Section 6.01(d).



     “Pro Forma Financial Statements” — as defined in Section 4.07.



     “Public Indenture” — the Indenture, dated as of March 9, 2001, between the Borrower and The
Bank of New York, as Trustee.



     “Recovery Event” — any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its
Subsidiaries which yields Net Cash Proceeds in excess of $100,000,000.



     “Register” — as defined in Section 9.04(b)(iv).



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



     “Responsible Officer” — the chief executive officer, president or chief financial officer of
the Borrower, but in any event, with respect to financial matters, the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.



     “Revolving Credit Agreement” — that certain US$750,000,000 Revolving Credit Agreement dated
as of September 1, 2004, among the Borrower, as US borrower and guarantor, Anadarko Canada
Corporation, as Canadian borrower, the agents named therein and the lenders party thereto, as in
effect from time to time. For the sake of clarity, the Revolving Credit Agreement may be replaced,
modified or amended from time to time and the amount of such facility may be increased within the
$1,500,000,000 limit in the definition of Excepted Indebtedness, in each case without the consent
of all or any portion of the Agents and the Lenders.



     “S&P” — Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies.



     “Significant Subsidiary” — any Subsidiary of the Borrower that would constitute a
“significant subsidiary” (as defined in Regulation S-X of the Commission under the Exchange Act).
As of the Effective Date, the Significant Subsidiaries prior to giving effect to the Kerr-McGee
Merger and the Western Gas Merger are as set forth on Schedule II. The Significant
Subsidiaries shall change from time to time to reflect the then “significant subsidiaries” (as
defined in such Regulation S-X) at such time.



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     “Sources and Uses” — the sources and uses of the proceeds of the Loans as set forth on
Schedule III.



     “Subsidiary” — with respect to any Person (the “parent”) at any date, any corporation,
limited liability company, partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent’s consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires,
reference in this Agreement to a “Subsidiary” or the “Subsidiaries” refers to a Subsidiary or the
Subsidiaries of the Borrower.



     “Taxes” — any and all present or future taxes, levies, imposts, duties, deductions, charges
or withholdings and interest or penalties in respect thereof imposed by any Governmental Authority.



     “Transactions” — the execution, delivery, and performance by the Borrower of this Agreement,
the borrowing of the Loans, the use of the proceeds thereof and the consummation of the Kerr-McGee
Merger and the Western Gas Merger.



     “Type” — as to any Loan, its nature as an Alternate Base Rate Loan or a Eurodollar Loan.



     “Unaudited Financial Statements — as defined in Section 6.01(d).



     “US” or “United States” — the United States of America, its fifty states, and the District of
Columbia.



     “USA Patriot Act ” — as defined in Section 9.14.



     “Western Gas” — Western Gas Resources, Inc., a Delaware corporation.



     “Western Gas Acquisition Agreement” — that certain Agreement and Plan of Merger dated as of
June 22, 2006, as amended on July 7, 2006, among the Borrower, Western Gas Merger Sub and Western
Gas and all other agreements, instruments and documents executed in connection with the Western Gas
Merger.



     “Western Gas Advance” — a single term loan comprised of Loans in an amount that shall not
exceed the aggregate amount of the Western Gas Commitments and which term loan shall be used by the
Borrower to finance the Western Gas Purchase Price, to refinance Indebtedness of Western Gas and
its Subsidiaries and to pay related fees and expenses of the Western Gas Merger all as
contemplated by the Sources and Uses.



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     “Western Gas Certificate of Merger” — the certificate of merger to be filed with the
Secretary of State of the State of Delaware in connection with the Western Gas Merger in such form
as required by, and executed in accordance with, the relevant provisions of the DGCL.



     “Western Gas Commitment” — with respect to each Lender, the commitment of such Lender to fund
its ratable share of the Western Gas Advance during the Availability Period, as such commitment may
be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender’s Western Gas Commitment is set forth on Annex I, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Western Gas Commitment, as
applicable. The initial aggregate amount of the Lenders’ Western Gas Commitments is Six Billion
Dollars ($6,000,000,000).



     “Western Gas MAE” — a material adverse effect on (a) the business, operations, assets,
liabilities, condition (financial or otherwise) or results of operations of Western Gas and its
subsidiaries considered as a single enterprise or (b) the ability of Western Gas to perform its
obligations under the Western Gas Acquisition Agreement or to consummate the transactions
contemplated thereby; provided, however, that any event, condition, change, occurrence or
development of a state of circumstances which (i) adversely affects the oil and gas exploration and
development or gas processing and transportation or hydrocarbon marketing industries generally,
including changes in commodity prices or markets, general market prices and legal or regulatory
changes (and in each case does not disproportionately affect Western Gas and its subsidiaries
considered as a single enterprise as compared to similarly situated persons), (ii) arises out of
general economic or industry conditions (and in each case does not disproportionately affect
Western Gas and its subsidiaries considered as a single enterprise as compared to similarly
situated persons), (iii) arises out of any change in generally accepted accounting principles
(which does not disproportionately affect Western Gas and its subsidiaries considered as a single
enterprise as compared to similarly situated persons), or (iv) (other than with respect to Section
2.3 of the Western Gas Acquisition Agreement) arises out of, results from or relates to the
transactions contemplated by the Western Gas Acquisition Agreement or the announcement thereof,
shall not be considered in determining whether a Western Gas MAE has occurred. As used in this
definition, the terms “hydrocarbon,” “person” and “subsidiary” have the meanings given to such
terms in the Western Gas Acquisition Agreement.



     “Western Gas Merger” — the merger of Western Gas Merger Sub with and into Western Gas
pursuant to the Western Gas Acquisition Agreement.



     “Western Gas Merger Sub” — APC Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of the Borrower.



     “Western Gas Purchase Price” — the consideration provided for in Section 1.6 and Section 1.8
of the Western Gas Acquisition Agreement.



     Section 1.02 Use of Defined Terms. Any defined term used in the plural preceded by the definite
article shall be taken to encompass all members of the relevant class. Any defined term used in
the singular preceded by “any” shall be taken to indicate any number of the members of the relevant
class.



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     Section 1.03 Accounting Terms. All accounting terms not specifically defined herein shall be
construed in each case in accordance with GAAP as in effect from time to time.



     Section 1.04 Interpretation. The word “including” (and with correlative meaning “include”) means
including, without limitation, the generality of any description preceding such term.



ARTICLE II

AMOUNT AND TERMS OF LOANS




     Section 2.01 Loans.



          (a) Subject to the terms and conditions of this Agreement, during the Availability Period,
each Lender severally agrees (i) to make a Loan to the Borrower in connection with the Western Gas
Advance in an amount not to exceed its Western Gas Commitment and (ii) to make a Loan to the
Borrower in connection with the Kerr-McGee Advance in an amount not to exceed its Kerr-McGee
Commitment. The Commitments are not revolving; and amounts repaid may not be reborrowed.




          (b) The failure of any Lender to make its Loan in connection with either the Kerr-McGee
Advance or the Western Gas Advance shall not relieve such Lender of its obligation hereunder to
make its Loan in connection with the other of such advances, nor shall it relieve any other Lender
of its obligation hereunder to make its Loan in connection with the Kerr-McGee Advance and the
Western Gas Advance, provided that the Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender’s failure to make any Loan as required.




          (c) Subject to Section 2.17, the Loans may be (i) Eurodollar Loans or (ii) Alternate Base Rate
Loans as determined by the Borrower. Eurodollar Loans shall be made and maintained by each Lender
at either its Eurodollar Lending Office or its Domestic Lending Office, at its option, provided
that the exercise of such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement or create or increase any obligation of the Borrower
not otherwise arising, or arising in such increased amount, under Section 2.14.




     Section 2.02 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 and accrued interest amount of each Loan on the
Maturity Date, or such earlier date upon which the maturity of the Loans shall have been
accelerated pursuant to Article VII.




          (b) 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.




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




          (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section 2.02 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.




          (e) Any Lender may request that Loans made by it to the Borrower be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender in substantially the form attached hereto as Exhibit
A. Thereafter, the Loans evidenced by such Note and interest thereon shall, at all times
(including after assignment pursuant to Section 9.04), be represented by one or more Notes in such
form payable to the order of the payee named therein.




          (f) Each Lender is authorized to and shall endorse the date, Type and amount of each Loan made
by such Lender, each continuation thereof, each conversion of all or a portion thereof to the same
or another Type, and the date and amount of each payment of principal with respect thereto on the
schedule annexed to and constituting a part of its Note. No failure to make or error in making any
such endorsement as authorized hereby shall affect the validity of the obligations of the Borrower
to repay the unpaid principal amount of the Loans made to the Borrower with interest thereon as
provided in Section 2.10 or the validity of any payment thereof made by the Borrower. Each Lender
shall, at the request of the Borrower, deliver to the Borrower copies of the Borrower’s Note and
the schedules annexed thereto.




     Section 2.03 Procedure for Borrowings. Not later than 11:00 a.m., Houston, Texas time during the
Availability Period, three Business Days prior to the date of the Kerr-McGee Advance or the Western
Gas Advance, as the case may be (each such date of borrowing a “Borrowing Date”), the Borrower
shall deliver to the Administrative Agent a borrowing request (a “Borrowing Request”), signed by
the Borrower. The Borrowing Request shall specify the following information:



               (i) the aggregate amount of the requested Loans to be made on such Borrowing Date and whether
such Loans are requested in connection with the Western Gas Advance or the Kerr-McGee Advance;



               (ii) the Borrowing Date for such Loans, which shall be a Business Day;



               (iii) whether any portion of such Loans is to be an Alternate Base Rate Loan or a Eurodollar
Loan;



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               (iv) in the case of a Eurodollar Loan, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term “Interest Period”; and



               (v) the location and number of the Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.12.



     If no election as to the Type or Interest Period is made, then the Borrower shall be deemed to
have selected a Eurodollar Loan with an Interest Period having one month’s duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made
in connection therewith.



     Each Lender will make the amount of its pro rata share of each Loan available to the
Administrative Agent for the account of the Borrower in accordance with Section 2.12. The proceeds
of the Loans will be made available to the Borrower by the Administrative Agent in accordance with
Section 2.12.



     Section 2.04 Reserved.



     Section 2.05 Reserved.



     Section 2.06 Termination of Commitments. (a) Unless previously terminated, the Commitments shall
terminate on the last day of the Availability Period. Any portion of (i) the Western Gas
Commitments that is not used on the Business Day on which the Western Gas Advance is made (other
than the ratable Commitment of a Defaulting Lender to the extent it has not complied with its
obligation to make its Loan) and (ii) the Kerr-McGee Commitments that is not used on the Business
Day on which the Kerr-McGee Advance is made (other than the ratable Commitment of a Defaulting
Lender to the extent it has not complied with its obligation to make its Loan) shall, in each case,
irrevocably expire at 3:00 p.m. New York time on such Business Day.



          (b) The Borrower may at any time during the Availability Period terminate, or from time to
time reduce, the Western Gas Commitments or the Kerr-McGee Commitments, whichever shall be unused;
provided that each reduction of the Western Gas Commitments or the Kerr-McGee Commitments, as the
case may be, shall be in an amount that is not less than $5,000,000 or a whole multiple thereof.




          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Kerr-McGee Commitments or the Western Gas Commitments under paragraph (b) of this Section 2.06
at least three Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following receipt of any notice,
the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section 2.06 shall be irrevocable. Any termination or reduction
of the Kerr-McGee Commitments or the Western Gas Commitments shall be permanent. Except as
provided in Section 9.13, each reduction of the Kerr-McGee Commitments or the Western Gas
Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.




15









 








     Section 2.07 Optional Prepayments.



          (a) The Borrower may, at its option, as provided in this Section 2.07, at any time and from
time to time prepay the Loans, in whole or in part, upon at least two (2) Business Days’ prior
notice to the Administrative Agent, specifying the date and amount of prepayment. Upon receipt of
such prepayment notice, the Administrative Agent shall promptly notify each Lender thereof. The
payment amount specified in such notice shall be due and payable on the date specified. All
prepayments pursuant to this Section 2.07 shall include accrued interest on the amount prepaid to
the date of prepayment and, in the case of prepayments of Eurodollar Loans, any amounts payable
pursuant to Section 2.22. The Loans shall also be subject to prepayment as provided in Section
2.08 and Section 9.13.




          (b) Partial optional prepayments pursuant to this Section 2.07 shall be in an aggregate
principal amount of $10,000,000 or any whole multiple of $5,000,000 in excess thereof. All
prepayments of Loans pursuant to this Section 2.07 shall be without the payment by the Borrower of
any premium or penalty except for amounts payable pursuant to Section 2.22.




     Section 2.08 Mandatory Prepayments and Commitment Reductions.



          (a) If the Borrower or any of its Subsidiaries shall issue or sell any Capital Stock (other
than Capital Stock issued to (i) directors, officers or employees pursuant to a stock-option or
compensation plan or (ii) the Borrower or a Subsidiary of the Borrower) or issue, sell or incur any
Indebtedness (other than Excepted Indebtedness), then as soon as practicable and in any event no
later than the Business Day following the Business Day on which the Borrower or such Subsidiary
receives the Net Cash Proceeds therefrom, an amount equal to 100% of the Net Cash Proceeds
therefrom shall be applied toward the prepayment of the Loans and, if no Loans are then outstanding
or if such Net Cash Proceeds exceeds the outstanding principal balance of the Loans, to the
reduction of the Commitments as set forth in Section 2.08(d).




          (b) If the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event, then as soon as practicable and in any event no later than the Business Day
following the Business Day on which the Borrower or such Subsidiary receives such Net Cash
Proceeds, such amount shall be applied toward the prepayment of the Loans and, if no Loans are then
outstanding or if such Net Cash Proceeds exceeds the outstanding principal balance of the Loans, to
the reduction of the Commitments as set forth in Section 2.08(d).




          (c) If the Borrower or any Subsidiary shall incur any Indebtedness pursuant to clause (c) of
the definition of “Excepted Indebtedness” then the Kerr-McGee Commitments or the Western Gas
Commitments, as the case may be, shall be reduced pro rata by an amount equal to the Net Cash
Proceeds of such Indebtedness applied to the Indebtedness of Kerr-McGee and its Subsidiaries or
Western Gas and its Subsidiaries, as the case may be.




          (d) Amounts to be applied in connection with prepayments and Commitment reductions made
pursuant to Section 2.08 shall be applied, first, to the prepayment of the Loans and, second, to
reduce permanently the Commitments, in each case, ratably in accordance with Section 2.13(a). The
application of any prepayment pursuant to Section 2.08 shall be made, first,

16









 








to Alternate Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans
under Section 2.08 (except in the case of Alternate Base Rate Loans) shall be accompanied by
accrued interest to the date of such prepayment and any amounts payable pursuant to Section 2.22 on
the amount prepaid.




          (e) All prepayments of Loans pursuant to this Section 2.08 shall be without the payment by the
Borrower of any premium or penalty except for amounts payable pursuant to Section 2.22.




     Section 2.09 Facility Fees. The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee for the period (the “Facility Fee Period”) from and including the
45th day after the Effective Date to the last day of the Availability Period, computed at the
Facility Fee Rate as set forth on Schedule I, on the undrawn amount of the Commitment of
such Lender during the Facility Fee Period; provided, that no such facility fee shall be payable in
respect of the portion of the undrawn Commitment of any Defaulting Lender which is attributable to
such Defaulting Lender’s failure to fund a Loan to which the Borrower is entitled under this
Agreement. Such facility fee shall be payable (i) quarterly in arrears on the last day of any
March, June, September and December occurring during such period, commencing on the first such date
to occur after the start of the Facility Fee Period, and (ii) on the last day of the Availability
Period.



     Section 2.10 Interest.



          (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto on the unpaid principal amount thereof at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Eurodollar Margin for such day. Each Alternate Base Rate
Loan shall bear interest on the unpaid principal amount thereof at a fluctuating rate per annum
equal to the Alternate Base Rate. Any overdue principal of any Loan shall, without limiting the
rights of any Lender under Article VII, bear interest at a rate per annum which is two percent (2%)
above the rate which would otherwise be applicable to such Loan pursuant to whichever of the two
preceding sentences shall apply until paid in full (as well after as before judgment). Overdue
interest, fees and other amounts payable hereunder (other than in respect of principal) shall bear
interest at a fluctuating rate per annum which is two percent (2%) above the rate which would be
applicable to Alternate Base Rate Loans. Interest shall be payable in arrears on each Interest
Payment Date; provided, however, that interest payable on overdue principal shall be payable on
demand.




          (b) Each Loan initially shall be of the Type specified in the Borrowing Request and, in the
case of a Eurodollar Loan, shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Loan to a different Type or to
continue such Loan for an additional Interest Period (and elect Interest Periods therefor), all as
provided in this Section 2.10. The Borrower may elect different options with respect to different
portions of the affected Loan or Loans, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans, and the Loans comprising each such portion shall then and
thereafter be considered a separate Loan.




17









 








          (c) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election (the “Interest Election Request”) by telephone by no later than 2:00 p.m.
New York City time (i) in the case of a Eurodollar Loan being continued or converted, on the third
(3rd) Business Day prior to the first day of the proposed Interest Period and (ii) in the case of
an Alternate Base Rate Loan, on the Business Day of such proposed continuation or conversion. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.




          (d) Each telephonic and written Interest Election Request shall identify the Borrower and
specify the following information in compliance with Section 2.03:




               (i) the Loan to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof to be allocated to
each resulting Loan (in which case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Loan);



               (ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;



               (iii) whether the resulting Loan is to be an Alternate Base Rate Loan or a Eurodollar Loan;
and



               (iv) if the resulting Loan is a Eurodollar Loan, whether such Loan is to be comprised of
Eurodollar Loans, and the Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term “Interest Period”.



          (e) If any such Interest Election Request requests a Eurodollar Loan but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (f) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s obligation with respect to each
resulting Loan.




          (g) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Loan prior to the end of the Interest Period applicable thereto, then, unless such Loan
is repaid as provided herein, at the end of such Interest Period such Loan shall be continued as a
Eurodollar Loan with an Interest Period having one month’s duration. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Majority Lenders, so notifies the Borrower, then, so long as such
Event of Default is continuing (i) no outstanding Loan may be continued as a Eurodollar Loan, and
(ii) unless repaid, each Eurodollar Loan shall be continued as an Alternate Base Rate Loan at the
end of the Interest Period applicable thereto.





18









 





     Section 2.11 Computation of Interest and Facility Fee.



          (a) Interest on Alternate Base Rate Loans shall be calculated on the basis of a 365- (or 366-
as the case may be) day year for the actual days elapsed. Interest on Eurodollar Loans and fees
under Section 2.09 shall be calculated on the basis of a 360-day year for the actual days elapsed.
Any change in the interest rate resulting from a change in the Alternate Base Rate shall become
effective as of the opening of business on the day on which such change in the applicable rate
shall become effective. The Administrative Agent shall notify the Borrower and the Lenders of the
effective date and the amount of each such change in the Alternative Base Rate.




          (b) The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a
statement showing the computations used by the Administrative Agent in determining any interest
rate or fee pursuant to Section 2.11(a).




     Section 2.12 Funding of Loans.



          (a) Each Lender shall make its ratable portion of the Kerr-McGee Advance and/or the Western
Gas Advance available by wire transfer of immediately available funds by 11:30 a.m., New York City
time, on the Borrowing Date for such Kerr-McGee Advance or Western Gas Advance, respectively, to
the account of the Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the Borrower designated
by the Borrower in the Borrowing Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
Borrowing Date in connection with the Kerr-McGee Advance or the Western Gas Advance, as the case
may be, that such Lender will not make available to the Administrative Agent its Loan to be made in
connection therewith, the Administrative Agent may assume that such Lender has made such Loan
available on such date in accordance with Section 2.12(a) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its Loan in connection therewith, then each such Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the cost incurred by the Administrative Agent for making the proceeds
of such Lender’s Loan available to the Borrower and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation, or (ii) in the case of the
Borrower, the interest rate applicable to Alternate Base Rate Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan.




     Section 2.13 Pro Rata Treatment and Payments.



          (a) Each Loan and each payment (including each prepayment) by the Borrower on account of the
principal of and interest on the Loans and any reduction of the Commitments of the Lenders shall be
made pro rata according to each Lender’s Applicable Percentage, except that (i) payments or
prepayments, and offsets against or reductions from the amount of payments and prepayments, in each
case, specifically for the account of a particular



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Lender under the terms of Section 2.14, Section 2.15, Section 2.16, Section 2.22, Section 9.03
or Section 9.13 shall be made for the account of such Lender, and (ii) if any Lender shall become a
Defaulting Lender, from and after the date upon which such Lender shall have become a Defaulting
Lender, any payment made on account of principal of or interest on the Loans or fees in respect of
undrawn Commitments shall be applied, first for the account of the Lenders other than the
Defaulting Lender, pro rata according to the Applicable Percentage of such non-defaulting Lenders,
until the principal of and interest on the Loans and fees in respect of undrawn Commitments of such
non-defaulting Lenders shall have been paid in full and, second for the account of such Defaulting
Lender, provided that the failure to so pay such Defaulting Lenders shall not constitute an Event
of Default or a Default, and no payment of principal of or interest on the Loans of such Defaulting
Lender shall be considered to be overdue for purposes of Section 2.10(a), if, had such payments
been applied without regard to this clause (ii), no such Event of Default or Default would have
occurred and no such payment of principal of or interest on the Loans of such Defaulting Lender
would have been overdue. All payments (including prepayments) to be made by the Borrower whether
on account of principal, interest fees or otherwise shall be made in Dollars and in immediately
available funds without setoff or counterclaim at or before 12:00 noon, New York City time on the
day when due and shall be made to the Administrative Agent on behalf of the Lenders to the account
of the Administrative Agent as notified to the Borrower from time to time at least five (5)
Business Days before any change in such account. On the date of this Agreement, the account for
payments of the Administrative Agent is 860050-524. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received.




          (b) If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar month in which event
such payment shall be made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the two preceding sentences, interest thereon shall be
payable at the then applicable rate during such extension.




          (c) Except as provided in Section 2.14, Section 2.15, Section 2.16, Section 2.22, Section
9.03, Section 9.13, and this Section 2.13, if any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Loans resulting in such Lender receiving payment of a greater proportion of the aggregate
amount of a Loan made by such Lender and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by such Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans; provided that (i)
if any such participations are purchased and all or any portion of the payment giving rise thereto
is recovered, such participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as

20









 






consideration for the assignment of or sale of a participation in any Loan made by such Lender
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing
and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders that
the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the cost incurred by the Administrative Agent for making
such distributed amount and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.12(b) or Section 2.13(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender’s obligations under such Sections until all
such unsatisfied obligations are fully paid.




     Section 2.14 Increased Cost of Loans.



          (a) If any change in any applicable law, treaty or governmental regulation after the date of
this Agreement, or in the interpretation or application thereof after the date of this Agreement,
or compliance by any Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made or issued after the date of this
Agreement, which:




               (i) does or shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Lender that is not otherwise included in the determination of the Eurodollar
Rate; or



               (ii) does or shall impose on such Lender or the London interbank market any other condition
affecting this Agreement, any Note or the Eurodollar Loans;


and the result of any of the foregoing is to increase the cost to such Lender of making, converting
into, continuing or maintaining any Eurodollar Loan or to reduce any amount received or receivable
by such Lender hereunder or under any Note (whether of principal, interest, or otherwise), then, in
any such case, the Borrower shall pay such Lender, upon written demand


21









 






being made to the Borrower by such Lender, such additional amount or amounts which will compensate
such Lender for such amounts as such Lender reasonably deems to be material with respect to this
Agreement, the Notes or the Loans hereunder, provided, however, that if all or any such
additional cost would not have been payable, or such reduction would not have occurred, but for
such Lender’s decision to designate a new Eurodollar Lending Office or Domestic Lending Office or
refusal to change to another Eurodollar Lending Office or Domestic Lending Office as provided
below, the Borrower shall have no obligation under this Section 2.14 to compensate such Lender for
such amount. Each Lender shall also give written notice to the Borrower and the Administrative
Agent of any event occurring after the date of this Agreement which would entitle such Lender to
compensation pursuant to this Section 2.14 as promptly as practicable after it obtains knowledge
thereof and, upon the request of the Borrower, such Lender will designate a different Eurodollar
Lending Office or a Domestic Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender. Notwithstanding the foregoing, in the event that any Lender shall
demand payment pursuant to this Section 2.14, the Borrower may, upon at least two (2) Business
Days’ notice to the Administrative Agent and such Lender, convert in whole (but not in part) the
Eurodollar Loans of such Lender into Alternate Base Rate Loans, in the case of Eurodollar Loans
made to the Borrower, without regard to the requirements of Section 2.10.




          (b) If any Lender shall have reasonably determined that the adoption after the date of this
Agreement of any law, rule or regulation regarding capital adequacy, or any change therein or in
the interpretation or application thereof after the date of this Agreement or compliance by any
Lender with any request or directive regarding capital adequacy (whether or not having the force of
law) from any central bank or Governmental Authority made or issued after the date of this
Agreement, does or shall have the effect of reducing the rate of return on such Lender’s capital,
or on the capital of such Lender’s holding company, if any, as a consequence of its obligations
hereunder to a level below that which such Lender, or such Lender’s holding company, could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to capital adequacy) by an
amount reasonably deemed by such Lender to be material, then from time to time, after submission by
such Lender to the Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction from and after such date the Borrower receives the
request; provided, however, that the foregoing shall not apply to any capital adequacy requirement
imposed solely by reason of any business combination effected after the date hereof.




          (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company (describing in reasonable detail the basis for such demand), as the
case may be, as specified in paragraph (a) or (b) of this Section 2.14 shall be delivered to the
Borrower (with a copy to the Administrative Agent) together with any demand pursuant to such
paragraphs and shall be prima facie evidence of the amount of such payment. The Borrower shall pay
such Lender the amount shown as due on any such certificate within ten (10) days after receipt
thereof.




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          (d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
2.14 shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.14 for
any increased costs or reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the change in law giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor; provided further that, if the change in law
giving rise to such increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.




     Section 2.15 Illegality. Notwithstanding anything herein contained, if any Lender shall make a
good faith determination that a change in any applicable law or regulation after the date of this
Agreement or in the interpretation thereof after the date of this Agreement by any authority
charged with the administration thereof shall make it unlawful for such Lender to give effect to
its obligations to make, convert, continue or maintain its Eurodollar Loans under this Agreement,
the obligation of such Lender to make, convert, continue or maintain Eurodollar Loans hereunder
shall be suspended for the duration of such illegality. Such Lender, by written notice to the
Administrative Agent and to the Borrower, shall declare that such Lender’s obligation to make,
convert, continue and/or maintain Eurodollar Loans shall be suspended, and the Borrower, on the
last day of the then current Interest Period applicable to such Eurodollar Loans or portion thereof
or, if such Lender so requests, on such earlier date as may be required by relevant law, shall
convert such Eurodollar Loans or portion thereof into Alternate Base Rate Loans without regard to
the requirements of Section 2.10. If and when such illegality ceases to exist, such suspension
shall cease and such Lender shall notify the Borrower and the Administrative Agent and any Loans
previously converted from Eurodollar Loans to Alternate Base Rate Loans pursuant to this Section
2.15 may be converted into Eurodollar Loans.



     Section 2.16 Taxes.



          (a) Any and all payments by or on account of any obligation of the Borrower under each Loan
Document shall be made free and clear of and without deduction or withholding for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct or withhold any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions or withholding (including deductions or
withholding applicable to additional sums payable under this Section 2.16), the Administrative
Agent or any Lender (as the case may be) receives an amount equal to the sum it would have received
had no such deductions or withholding been made, (ii) the Borrower shall make such deductions or
withholding, and (iii) the Borrower shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (c) The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10)
days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender on or with respect to any

23









 








payment by or on account of any obligation of the Borrower under each Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.16) and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower (including, without limitation, Form W-8BEN or Form W-8ECI, as
applicable) as will permit such payments to be made without withholding or at a reduced rate.




          (f) For any period during which a Foreign Lender has failed to provide the Borrower with the
appropriate documentation as required by Section 2.16(e), the Borrower shall not be obligated to
pay, and such Foreign Lender shall not be entitled to secure additional amounts under this Section
2.16 with respect to Indemnified Taxes imposed by a Governmental Authority to the extent that such
additional amounts would not have arisen but for such failure of such Foreign Lender.




          (g) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Indemnified Taxes or Other Taxes (or any other taxes owed by the
Administrative Agent or a Lender under this Agreement and indemnified by the Borrower or paid by
the Borrower on behalf of a Lender) as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section 2.16, it shall
pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.16 with respect to the Indemnified
Taxes or Other Taxes (or any other taxes owed by the Administrative Agent or a Lender under this
Agreement and indemnified by the Borrower or paid by the Borrower on behalf of a Lender) giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided, however, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to forthwith repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such

24









 








Governmental Authority. Nothing contained in this Section 2.16 shall require the
Administrative Agent or any Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other Person.




     Section 2.17 Substitute Loan Basis. In the event that prior to the commencement of any Interest
Period for any Eurodollar Loan the Majority Lenders shall reasonably determine (which determination
shall be final and conclusive and binding upon the Borrower) that (a) by reason of changes
affecting the London Interbank Eurodollar Market, adequate and fair means do not exist for
ascertaining the Eurodollar Rate for such requested Interest Period, or (b) the Eurodollar Rate
will not adequately and fairly reflect the cost to such Lenders of making or maintaining their
Loans for such Interest Period then, and in any such event, the Administrative Agent shall
forthwith give notice to the Borrower and (i) any Loans that were to have been made or continued on
the first day of such Interest Period as Eurodollar Loans shall be made or converted into Alternate
Base Rate Loans on the date upon which such Loans were to have been made or continued, and (ii) any
outstanding Eurodollar Loans shall be converted, on the last day of the Interest Period applicable
thereto, into Alternate Base Rate Loans. The Administrative Agent shall give written notice to the
Borrower of any event occurring after the giving of such notice which permits an adequate and fair
means of ascertaining the Eurodollar Rate and until such notice by the Administrative Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right
to continue as Eurodollar Loans.



     Section 2.18 Certain Prepayments or Continuations. If the Eurodollar Loans of any Lender are
converted into Alternate Base Rate Loans pursuant to Section 2.14 or Section 2.15 (such Eurodollar
Loans being herein called “Affected Loans”), unless and until such Lender gives written notice that
the circumstances which gave rise to such conversion no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) all Loans which would otherwise be made or
converted by such Lender into Affected Loans shall be made instead as, or converted into Alternate
Base Rate Loans (on which interest and principal shall be payable simultaneously with the related
Affected Loans of the other Lenders).



     Section 2.19 Certain Notices. Notices by the Borrower under each of Section 2.03, Section 2.06,
Section 2.07, Section 2.10, Section 2.14 and Section 2.17, and under the definition of “Interest
Period” in Section 1.01 (a) shall be given in writing, by telecopy or by telephone (confirmed
promptly in writing), and (b) shall be effective only if received by the Administrative Agent and,
in the case of Section 2.14, the Lender involved, not later than 10:30 A.M. (New York City time) on
the day specified in the respective Section or definition as the latest day such notice may be
given. Notices by the Borrower under each of Section 2.03, Section 2.06, Section 2.07, Section
2.09, Section 2.10, Section 2.14 and Section 2.17 shall be irrevocable.



     Section 2.20 Reserved.



     Section 2.21 Minimum Amounts of Eurodollar Loans. All Loans and continuations of Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Loan shall be equal to $10,000,000 or a whole multiple of $5,000,000 in
excess thereof.



25









 





     Section 2.22 Break Funding Payments. In the event of the payment of any principal amount of any
Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), the continuation of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, the failure to borrow, continue or prepay any Loan on
the date specified in any notice delivered pursuant hereto, or the assignment of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto as a result of a request
by the Borrower, then, in any such event, the Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the principal amount of
such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender would bid were it to
bid, at the commencement of such period, for dollar deposits of a comparable amount and period from
other banks in the Eurodollar market. A certificate of any such Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.22 shall be delivered to
the Borrower and the Administrative Agent and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof. Notwithstanding anything to the contrary contained herein no Lender shall
be entitled to receive any amount or amounts pursuant to this Section if such amount or amounts are
attributable solely to the merger or other consolidation of such Lender with another Lender.



ARTICLE III

REPRESENTATIONS AND WARRANTIES




     Section 3.01 Representations of the Borrower. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:



          (a) The Borrower (i) has been duly incorporated and is validly existing and in good standing
under the laws of the State of Delaware, and (ii) is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction of the United States in which the
ownership of its properties or the conduct of its business requires such qualification and where
the failure to so qualify would constitute a Material Adverse Change.




          (b) This Agreement and all other Loan Documents to which the Borrower is a party have been
duly authorized, executed and delivered by the Borrower, and each of this Agreement, the Notes and
the other Loan Documents to which it is a party constitutes a valid and binding agreement of the
Borrower, enforceable in accordance with its respective terms, subject to the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights generally and equitable
principles of general applicability. The Notes have been duly authorized by the Borrower and, when
executed, issued and delivered pursuant hereto for value received, will constitute valid and
binding obligations of the Borrower, enforceable in accordance with their terms, except as (i) may
be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and
(ii) rights of acceleration and the availability of equitable

26









 








remedies may be limited by equitable principles of general applicability. There are no
actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened against the
Borrower which purports to affect the legality, validity or enforceability of this Agreement, any
other Loan Document or any of the Notes.




          (c) The execution, delivery and performance of this Agreement by the Borrower and the
execution, issuance, delivery and performance by the Borrower of the Notes will not violate or
conflict with (A) the restated certificate of incorporation or bylaws of the Borrower, or (B) any
indenture (including the Public Indenture), loan agreement or other similar agreement or instrument
binding on the Borrower.




          (d) To the knowledge of the Borrower, on the Effective Date there are no actions, suits, or
proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower before
any Governmental Authority as to which, in the opinion of the Borrower, there is a reasonable
possibility of an adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to constitute a Material Adverse Change.




          (e) The consolidated balance sheets of the Borrower and its consolidated Subsidiaries as of
December 31, 2004 and 2005, and the related consolidated statements of income, stockholders’ equity
and cash flows for each of the years in the three-year period ended December 31, 2005, audited by
KPMG LLP, present fairly, in all material respects, the consolidated financial position of the
Borrower and its consolidated Subsidiaries as of December 31, 2004 and 2005, and the results of
their operations and their cash flows for each of the years in the three-year period ended December
31, 2005, in conformity with GAAP applied on a consistent basis.




          (f) Neither the Borrower nor any Subsidiary is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940.




          (g) No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Change. The present value of all
accumulated benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of
all such underfunded Plans by an amount that could reasonably be expected to be a Material Adverse
Change.




          (h) Neither the Information Memorandum nor any of the other reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to the Agents or any
Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished), taken as a whole, contains any material
misstatement of fact or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that other
than the term sheet contained in the Information Memorandum, the information contained in the
Information Memorandum is publicly available information and

27









 








has been provided therein for the convenience of the Lenders; and if there is a conflict
between the information in the Information Memorandum and publicly available information, then the
publicly available information will prevail; provided further that, the Borrower makes no
representation or warranty concerning the statements, estimates and projections contained in the
Information Memorandum with respect to the anticipated future performance of the Borrower, except
that such statements, estimates and projections were made in good faith by the Borrower’s
management, on the basis of assumptions believed by the Borrower’s management to be reasonable at
the time and such statements, estimates and projections and the assumptions on which they are based
may or may not prove to be correct.




          (i) The Borrower’s “significant subsidiaries” (as defined in Regulation S-X of the Commission
under the Securities and Exchange Act of 1934) as of the date immediately prior to the Effective
Date are listed on Part A of Schedule II hereto.




          (j) The Borrower has filed all United States Federal income tax returns and all other material
tax returns and reports required to be filed (or obtained extensions with respect thereto) and has
paid all taxes required to have been paid by it, except (i) taxes the validity of which are being
contested in good faith by appropriate proceedings, and with respect to which the Borrower, to the
extent required by GAAP, has set aside on its books adequate reserves or (ii) to the extent the
failure to do so (individually or in the aggregate) would not reasonably be expected to result in a
Material Adverse Change.




          (k) No Event of Default has occurred and is continuing.




          (l) The making of the Loans does not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority or any other third Person
(including shareholders or any class of directors, whether interested or disinterested, of the
Borrower or any other Person), nor is any such consent, approval, registration, filing or other
action necessary for the validity or enforceability of any Loan Document, except such as have been
obtained or made and are in full force and effect.




     Section 3.02 Western Gas Representations of the Borrower. The Borrower represents and warrants to
the Administrative Agent and the Lenders as of the later of the Effective Date and the Borrowing
Date for the Western Gas Advance that:



          (a) The copy of the Western Gas Acquisition Agreement previously delivered by the Borrower to
the Administrative Agent is true, accurate and complete and has not been amended or modified in any
manner which would be material and adverse to the Lenders unless consented to by the Administrative
Agent and the Co-Syndication Agents.




          (b) The Borrower and the Western Gas Merger Sub have the requisite corporate power and
authority to enter into and deliver the Western Gas Acquisition Agreement and to carry out its
respective obligations contemplated thereby. The execution and delivery of the Western Gas
Acquisition Agreement by the Borrower and the Western Gas Merger Sub, the performance by each of
the Borrower and the Western Gas Merger Sub of its obligations thereunder and the consummation by
each of the transactions contemplated thereby have been duly authorized by the board of directors
of the Borrower and the Western Gas Merger Sub. No

28









 








other corporate proceedings on the part of the Borrower or the Western Gas Merger Sub are
necessary to authorize the execution and delivery of the Western Gas Acquisition Agreement, the
performance by each of their respective obligations thereunder and the consummation by each of the
transactions contemplated thereby. The Western Gas Acquisition Agreement has been duly executed
and delivered by the Borrower and the Western Gas Merger Sub and constitutes a valid and binding
obligation of each such Person, enforceable in accordance with its terms, except to the extent that
its enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization principles or other laws affecting the enforcement of creditor’s rights generally or
by general equitable principles.




          (c) Neither the execution and delivery of the Western Gas Acquisition Agreement by the
Borrower and the Western Gas Merger Sub nor the consummation by each of the transactions
contemplated thereby nor compliance by each with any of the provisions therein will (i) result in a
violation or breach of or conflict with its respective certificate or articles of incorporation or
bylaws, (ii) result in a violation or breach of or conflict with any provisions of, or constitute a
default (or an event which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination, cancellation of, or give rise to a right of purchase under, or
accelerate the performance required by, or result in a right of termination or acceleration under,
or result in the creation of any Lien upon any of the properties or assets owned or operated by the
Borrower or any Subsidiaries under, or result in being declared void, voidable, or without further
binding effect, under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, contract, lease, agreement or other instrument or obligation of
any kind to which the Borrower or any of the Subsidiaries is a party or by which the Borrower or
any of the Subsidiaries or any of their respective properties or assets is bound or (iii) subject
to obtaining or making the consents, approvals, orders, authorizations, registrations, declarations
and filings referred to in paragraph (d) below, violate any judgment, ruling order, writ,
injunction, decree, statute, law (including common law), rule or regulation applicable to the
Borrower or any of the Subsidiaries or any of their respective properties or assets, other than any
such event described in items (ii) or (iii) which, individually or in the aggregate, has not had
and would not reasonably be expected to have a Western Gas MAE.




          (d) No consent, approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority is necessary to be obtained or made by the Borrower or any of its
Subsidiaries in connection with the Borrower’s or Western Gas Merger Sub’s execution, delivery and
performance of the Western Gas Acquisition Agreement or the consummation by the Borrower and the
Western Gas Merger Sub of the transactions contemplated thereby, except for (i) consents, approvals
and governmental filings that have been made or obtained prior to such date, (ii) compliance with
the DGCL, with respect to the filing of the Western Gas Certificate of Merger and (iii) such
governmental or tribal consents, qualifications or filings as are customarily obtained or made
following the transfer of interests in oil and gas properties, except in each case of clauses (ii)
and (iii) where the failure to obtain or take such actions, individually or in the aggregate, has
not had and would not reasonably be expected to have a Western Gas MAE.




          (e) There is no preliminary injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a Governmental Authority, nor any statute, rule,

29









 








regulation or executive order promulgated or enacted by any Governmental Authority, in effect
that would make the Western Gas Merger illegal or otherwise prevent the consummation thereof.




          (f) Immediately following the Western Gas Merger, the Borrower’s “significant subsidiaries”
(as defined in Regulation S-X of the Commission under the Securities and Exchange Act of 1934)
acquired in connection with the Western Gas Merger are listed on Part B of Schedule II
hereto.




          (g) To the Borrower’s knowledge, (i) Western Gas has the corporate power and authority to
enter into the Western Gas Acquisition Agreement and to consummate the transactions contemplated
thereby, (ii) neither Western Gas nor any of its Subsidiaries is an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of 1940 and (iii) Western Gas and
each of its Subsidiaries is duly qualified and/or licensed, as may be required, to do business as a
foreign corporation and is in good standing in each jurisdiction in which the nature of the
business conducted by it or the character of the property owned, leased or used by it makes such
qualification necessary, except in such jurisdictions where the failure to be so qualified and/or
licensed, individually or in the aggregate, have not had or would not reasonably be expected to
have a Western Gas MAE.




     Section 3.03 Kerr-McGee Representations of the Borrower. The Borrower represents and warrants to
the Administrative Agent and the Lenders as of the later of the Effective Date and the Borrowing
Date for the Kerr-McGee Advance that:



          (a) The copy of the Kerr-McGee Acquisition Agreement previously delivered by the Borrower to
the Administrative Agent is true, accurate and complete and has not been amended or modified in any
manner which would be material and adverse to the Lenders unless consented to by the Administrative
Agent and the Co-Syndication Agents.




          (b) The Borrower and the Kerr-McGee Merger Sub have the requisite corporate power and
authority to enter into and deliver the Kerr-McGee Acquisition Agreement and to carry out its
respective obligations contemplated thereby. The execution and delivery of the Kerr-McGee
Acquisition Agreement by the Borrower and the Kerr-McGee Merger Sub, the performance by each of the
Borrower and the Kerr-McGee Merger Sub of its obligations thereunder and the consummation by each
of the transactions contemplated thereby have been duly authorized by the board of directors of the
Borrower and the Kerr-McGee Merger Sub. No other corporate proceedings on the part of the Borrower
or the Kerr-McGee Merger Sub are necessary to authorize the execution and delivery of the
Kerr-McGee Acquisition Agreement, the performance by each of its obligations thereunder and the
consummation by each of the transactions contemplated thereby. The Kerr-McGee Acquisition
Agreement has been duly executed and delivered by the Borrower and the Kerr-McGee Merger Sub and
constitutes a valid and binding obligation of each such Person, enforceable in accordance with its
terms.




          (c) Neither the execution and delivery of the Kerr-McGee Acquisition Agreement by the Borrower
and the Kerr-McGee Merger Sub nor the consummation by each of the transactions contemplated thereby
nor compliance by each with any of the provisions therein will (i) result in a violation or breach
of or conflict with its respective certificate or articles of incorporation or bylaws, (ii) result
in a violation or breach of or conflict with any provisions of,

30









 






or constitute a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination, cancellation of, or give rise to a right
of purchase under, or accelerate the performance required by, or result in a right of termination
or acceleration under, or result in the creation of any Lien upon any of the properties or assets
owned or operated by the Borrower or any Subsidiaries under, or result in being declared void,
voidable, or without further binding effect, under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license, contract, lease, agreement or other
instrument or obligation of any kind to which the Borrower or any of the Subsidiaries is a party or
by which the Borrower or any of the Subsidiaries or any of their respective properties or assets is
bound or (iii) subject to obtaining or making the consents, approvals, orders, authorizations,
registrations, declarations and filings referred to in paragraph (d) below, violate any judgment,
ruling order, writ, injunction, decree, statute, law (including common law), rule or regulation
applicable to the Borrower or any of the Subsidiaries or any of their respective properties or
assets, other than any such event described in items (ii) or (iii) which, individually or in the
aggregate, has not had and would not reasonably be expected to have a Kerr-McGee MAE.




          (d) No consent, approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority is necessary to be obtained or made by the Borrower or any of its
Subsidiaries in connection with the Borrower’s or Kerr-McGee Merger Sub’s execution, delivery and
performance of the Kerr-McGee Acquisition Agreement or the consummation by the Borrower and the
Kerr-McGee Merger Sub of the transactions contemplated thereby, except for (i) consents, approvals
and governmental filings that have been made or obtained prior to such date, (ii) compliance with
the DGCL, with respect to the filing of the Kerr-McGee Certificate of Merger and (iii) such
governmental or tribal consents, qualifications or filings as are customarily obtained or made
following the transfer of interests in oil and gas properties, except in each case of clauses (ii)
and (iii) where the failure to obtain or take such actions, individually or in the aggregate, has
not had and would not reasonably be expected to have a Kerr-McGee MAE.




          (e) There is no preliminary injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a Governmental Authority, nor any statute, rule, regulation or
executive order promulgated or enacted by any Governmental Authority, in effect that would make the
Kerr-McGee Merger illegal or otherwise prevent the consummation thereof.




          (f) Immediately following the Kerr-McGee Merger, the Borrower’s “significant subsidiaries” (as
defined in Regulation S-X of the Commission under the Securities and Exchange Act of 1934) acquired
in connection with the Kerr-McGee Merger are listed on Part B of Schedule II hereto.




          (g) To the Borrower’s knowledge, (i) Kerr-McGee has the corporate power and authority to enter
into the Kerr-McGee Acquisition Agreement and to consummate the transactions contemplated thereby,
(ii) neither Kerr-McGee nor any of its Subsidiaries is an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940 and (iii) Kerr-McGee and each of
its Subsidiaries is duly qualified and/or licensed, as may be required, and is in good standing in
each jurisdiction in which the nature of the business conducted by it or the character of the
property owned, leased or used by it makes such qualification necessary, except in such
jurisdictions where the failure to be so qualified and/or licensed, individually or in the aggregate, have not had or would not reasonably be expected
to have a Kerr-McGee MAE.




31









 







ARTICLE IV

AFFIRMATIVE COVENANTS




     Until all the principal of and interest on each Loan and all other amounts then due and
payable hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders
that:



     Section 4.01 Financial Statements and Other Information. The Borrower will furnish to the
Administrative Agent and each Lender:



          (a) Within fifteen (15) days after the Borrower is required to file the same with the
Commission, copies of the annual reports of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Borrower may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Borrower is not required to file
information, documents or reports pursuant to either of said Sections, then such of the
supplementary and periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations; provided,
however, that the Borrower shall be deemed to have furnished the information required by this
Section 4.01(a) if it shall have timely made the same available on “EDGAR” and/or on its home page
on the worldwide web (at the date of this Agreement located at http://www.anadarko.com) and
complied with Section 4.01(e) in respect thereof; provided further, however, that if any Lender is
unable to access EDGAR or the Borrower’s home page on the worldwide web, the Borrower agrees to
provide such Lender with paper copies of the information required to be furnished pursuant to this
Section 4.01(a) promptly following notice from the Administrative Agent that such Lender has
requested same.




          (b) Within sixty (60) days after the close of each of the first three quarters of each fiscal
year of the Borrower, a statement by a Responsible Officer of the Borrower stating whether to the
knowledge of the Borrower an event has occurred during such period and is continuing which
constitutes an Event of Default or a Default, and, if so, stating the facts with respect thereto.




          (c) Within one hundred twenty (120) days after the close of each fiscal year of the Borrower a
statement by a Responsible Officer of the Borrower stating whether to the knowledge of the Borrower
an event has occurred during such period and is continuing which constitutes an Event of Default or
a Default, and, if so, stating the facts with respect thereto.




          (d) Such other information respecting the financial condition or operations of the Borrower
and the Subsidiaries as the Administrative Agent or any Lender may from time to time reasonably
request.




          (e) Information required to be delivered pursuant to Section 4.01(a) above shall be deemed to
have been delivered on the date on which the Borrower provides notice to the



32









 








Administrative Agent that such information has been posted on “EDGAR” or the Borrower’s
website or another website identified in such notice and accessible by the Administrative Agent
without charge (and the Borrower hereby agrees to provide such notice).




     Section 4.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent and
each Lender prompt written notice of the following:



          (a) the occurrence of any Event of Default;




          (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower that is reasonably likely to be
adversely determined and, if so adversely determined, could reasonably be expected to result in a
Material Adverse Change; and




          (c) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Change.



Each notice delivered under this Section 4.02 shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth the details of the event or development requiring such notice
and any action taken with respect thereto.




     Section 4.03 Compliance with Laws. The Borrower will, and will cause each of the Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it
or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Change.



     Section 4.04 Use of Proceeds. (a) The proceeds of the Loans comprising the Western Gas Advance
will be used by the Borrower (i) to pay the Western Gas Purchase Price, (ii) to provide for the
refinancing of existing Indebtedness of Western Gas, (iii) to pay fees and expenses associated with
the Western Gas Merger and such refinancing and (iv) for general corporate purposes of the Borrower
and the Subsidiaries, substantially as set forth in the Sources and Uses and (b) the proceeds of
the Loans comprising the Kerr-McGee Advance will be used by the Borrower (i) to pay the Kerr-McGee
Purchase Price, (ii) to provide for the refinancing of existing Indebtedness of Kerr-McGee, (iii)
to pay fees and expenses associated with the Kerr-McGee Merger and such refinancing and (iv) for
general corporate purposes of the Borrower and the Subsidiaries, substantially as set forth in the
Sources and Uses. No part of the proceeds of any Loan will be used for any purpose which violates
the provisions of Regulations U or X of the Board of Governors of the Federal Reserve System.



     Section 4.05 Compliance with Indenture. The Borrower will comply with the provisions of Sections
1004 and 1005 of the Public Indenture (a true and complete copy of which the Borrower hereby
represents has been furnished to the Administrative Agent), which provisions, together with related
definitions, are hereby incorporated herein by reference for the benefit of the Lenders and shall
continue in effect for purposes of this Section 4.05, regardless of termination, or any amendment
or waiver of, or any consent to any deviation from or other modification of, the Public Indenture;
provided, however, that, for purposes of this Section 4.05, (a) references in the Public Indenture
to “the Securities” shall be deemed to refer to the respective obligations of the Borrower to pay
the principal of and interest on the Notes, (b)



33









 







references in the Public Indenture to “the Trustee” shall be deemed to refer to the Administrative
Agent, (c) references in the Public Indenture to “this Indenture” shall be deemed to refer to this
Agreement, and (d) references in the Public Indenture to “supplemental indentures” shall be deemed
to refer to amendments or supplements to this Agreement.



     Section 4.06 Insurance. The Borrower will at all times maintain, and will cause its Subsidiaries
to maintain, with financially sound and reputable insurers, insurance of the kinds, covering the
risks and in the relative proportionate amounts (including as to self-insurance) consistent with
that carried by companies engaged in the same or similar business and similarly situated; provided,
that the Borrower shall not be required to maintain insurance against risks or in amounts no longer
economically available, on a de novo or renewal basis, as applicable, to the Borrower and other
companies engaged in the same or similar business and similarly situated.



     Section 4.07 Pro Forma Financial Statements. If not delivered on or prior to the Effective Date,
the Borrower will, within 30 days after the Effective Date, deliver to the Lenders a pro forma
consolidated balance sheet and related statements of income and cash flows for the Borrower (the
“Pro Forma Financial Statements”) after giving effect to each of (i) the Kerr-McGee Merger
and the Western Gas Merger which has been consummated, or which the Borrower reasonably expects to
be consummated, as of the date of delivery of such Pro Forma Financial Statements and (ii) the
Transactions related to such merger(s). The Pro Forma Financial Statements shall be prepared on a
basis consistent with pro forma financial statements set forth in a registration statement filed
with the Commission.



ARTICLE V

NEGATIVE COVENANTS




     Until the principal of and interest on each Loan and all other amounts then due and payable
hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders that:



     Section 5.01 Limitation on Certain Secured Indebtedness. The Borrower will not incur, issue,
assume or guarantee any Indebtedness secured by a mortgage on oil, gas, coal or other minerals in
place, or on related leasehold or other property interests, which is incurred for any reason if the
aggregate amount of all such Indebtedness exceeds 10% of Consolidated Net Tangible Assets (as
defined in the Public Indenture).



     Section 5.02 Limitations on Sales and Leasebacks. The Borrower will not itself, and will not
permit any Subsidiary to, enter into any arrangement with any bank, insurance company or other
lender or investor (not including the Borrower or any Subsidiary) or to which any such lender or
investor is a party, providing for the leasing by the Borrower or a Subsidiary for a period,
including renewals, in excess of three years, of any Principal Property which has been or is to be
sold or transferred more than one hundred eighty (180) days after the completion of construction
and commencement of full operation thereof, by the Borrower or any Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property (herein referred to as a “sale and
leaseback transaction”) unless either:



34









 








          (a) the Borrower or such Subsidiary could create Indebtedness secured pursuant to Section 1005
of the Public Indenture on the Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to the lease resulting from such sale and leaseback transaction
without equally and ratably securing the Securities (as defined in the Public Indenture); or




          (b) the Borrower within one hundred eighty (180) days after the sale or transfer shall have
been made by the Borrower or by a Subsidiary, applies an amount equal to the greater of (i) the net
proceeds of the sale of the Principal Property sold and leased back pursuant to such arrangement or
(ii) the net amount (after deducting applicable reserves) at which such Principal Property is
carried on the books of the Borrower or such Subsidiary at the time of entering into such
arrangement, to the retirement of Indebtedness of the Borrower.




     For purposes of this Section 5.02, neither Anadarko Tower nor the Timberloch Building, each in
The Woodlands, Texas, shall be a Principal Property.



     Section 5.03 Fundamental Changes. The Borrower shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as an entirety to any
Person unless:



          (a) (i) In the case of a merger or amalgamation, the Borrower is the surviving entity; or




               (ii) the Person formed by such consolidation or into which the Borrower is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and assets of the
Borrower substantially as an entirety shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States of America, any State thereof or the
District of Columbia, shall have unsecured non-credit enhanced publicly held indebtedness rated
“investment grade” by S&P or Moody’s, and shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Administrative Agent, in form satisfactory to the
Administrative Agent, the obligations of the Borrower hereunder, including the due and punctual
payment of the principal of and interest on all the Loans and the performance of every covenant of
this Agreement on the part of the Borrower to be performed or observed; and



          (b) immediately after giving effect to such transaction, no Event of Default or Default shall
have occurred and be continuing.




ARTICLE VI

CONDITIONS OF LENDING




     Section 6.01 Conditions Precedent to this Agreement. The obligation of each Lender to make Loans
hereunder shall not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):



35









 





          (a) An appropriate Note is issued payable to the order of such Lender, if requested.




          (b) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party, or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.




          (c) The Administrative Agent and the Lenders shall have received all fees and other amounts
due and payable on the Effective Date, including, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.




          (d) The Lenders shall have received (i) audited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of the Borrower and each of Western Gas
and Kerr-McGee for each of the last three fiscal years ending more than 90 days prior to the
Effective Date (the “Audited Financial Statements”), (ii) unaudited consolidated balance
sheets and related statements of income, stockholders’ equity and cash flows of each of the
Borrower and each of Western Gas and Kerr-McGee for each fiscal quarter of the current fiscal year
ending more than 45 days prior to the Effective Date and for the comparable periods of the
preceding fiscal year (the “Unaudited Financial Statements”) (with respect to which the
independent auditors shall have performed an SAS 100 review), (iii) pro forma levels of EBITDA
(“Pro Forma EBITDA”), for the last fiscal year covered by the Audited Financial Statements
and for the latest four-quarter period ending more than 45 days prior to the Effective Date, in
each case after giving effect to the Transactions, and (iv) forecasts of the financial performance
of the Borrower and its Subsidiaries on an annual basis, through 2008, which forecasts shall be in
form substantially similar to forecasts that have been previously provided to the Lenders. The
financial statements referred to in clauses (i), and (ii) shall be prepared in accordance with
accounting principles generally accepted in the United States. The Pro Forma EBITDA shall be
prepared by the Borrower in good faith, but need not reconcile differences in accounting policies
among the Borrower, Kerr-McGee and Western Gas.




For the avoidance of doubt, receipt of Audited Financial Statements and Unaudited Financial
Statements for (and any other information relating to) Kerr-McGee shall not be a condition to
funding the Western Gas Advance and receipt of Audited Financial Statements and Unaudited Financial
Statements for (and any other information relating to) Western Gas shall not be a condition to
funding the Kerr-McGee Advance.




          (e) The Administrative Agent (or its counsel) shall have received certified copies of the
resolutions of the Board of Directors or the Executive Committee of the Directors of the Borrower
authorizing the execution, delivery and performance of this Agreement and the Notes.




          (f) The Administrative Agent (or its counsel) shall have received an opinion of Akin Gump
Strauss Hauer & Feld LLP, special US counsel to the Borrower, to the effect that (i) this Agreement
constitutes and (when value shall have been given therefor) each Note will



36









 






constitute a legal, valid and binding agreement of the Borrower, in each case enforceable in
accordance with their respective terms, subject to and limited by usual and customary
qualifications, including the effect of (A) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer or other similar laws affecting the rights
of creditors generally and (B) general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, (1) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy, and (2) concepts of materiality,
reasonableness, good faith and fair dealing and (ii) no authorization, consent or approval of any
governmental body or agency of the State of New York or the United States of America which has not
been obtained is required in connection with the execution, delivery and performance by the
Borrower of this Agreement and the Notes.



In rendering such opinion, Akin Gump Strauss Hauer & Feld LLP may assume matters covered by other
opinions delivered hereunder and may state that they have relied as to certain matters on
information obtained from public officials and officers of the Borrower.




          (g) The Administrative Agent (or its counsel) shall have received a favorable opinion of an
associate general counsel or the general counsel of the Borrower, to the effect that:




               (i) the Borrower is validly existing and in good standing under the laws of the State of
Delaware;



               (ii) this Agreement has been duly authorized, executed and delivered by the Borrower and the
Notes have been duly authorized, issued, executed and delivered by the Borrower;



               (iii) the Borrower is qualified to do business as a foreign corporation and is in good
standing in the States of Kansas, Louisiana, Oklahoma and Texas;



               (iv) the execution, delivery and performance by the Borrower of this Agreement and the
execution, issuance, delivery and performance of the Notes will not violate the restated
certificate of incorporation or bylaws of the Borrower, each as in effect on the date of such
opinion;



               (v) the execution, delivery and performance of this Agreement and the execution, issuance,
delivery and performance by the Borrower of the Notes will not (A) violate any applicable provision
of any applicable law or applicable order or (B) violate any provision of any indenture, loan
agreement or other similar agreement or instrument known to such counsel (having made due inquiry
with respect thereto) binding on the Borrower or affecting its property; and



               (vi) to the knowledge of such counsel (having made due inquiry with respect thereto), there is
no proceeding pending or threatened before any court or administrative agency which, in the opinion
of such counsel, will result in a final determination which would result in a Material Adverse
Change.


In rendering such opinion, the associate general counsel or the general counsel of the Borrower
shall opine only as to matters governed by the federal laws of the United States of America, the


37









 






laws of the State of Texas and the DGCL. Such counsel may also state that he/she has relied on
certificates of public officials, certificates of officers of the Borrower and other sources
believed by him/her to be responsible.



The Lenders shall have received such documents and other instruments as are customary for
transactions of this type or as they or their counsel may reasonably request.




     Section 6.02 Conditions Precedent to the Western Gas Advance. The obligation of each Lender to
make its Loan in respect of the Western Gas Advance shall not become effective until the date on
which each of the following conditions are satisfied (or waived in accordance with Section 9.02):



          (a) The Administrative Agent (or its counsel) shall have received a certificate of a
Responsible Officer of the Borrower to the effect that prior to and after the making of the Western
Gas Advance:




               (i) the representations and warranties contained in Sections 3.01 and 3.02 are true and
accurate on and as of the Effective Date (except to the extent that such representations and
warranties relate solely to an earlier date); and



               (ii) no event has occurred and is continuing or would result from the proposed borrowing,
which constitutes an Event of Default or a Default.



          (b) The Administrative Agent (or its counsel) shall have received certified copies of the
resolutions of the Board of Directors or the Executive Committee of the Directors of the Borrower
and the Western Gas Merger Sub authorizing the execution, delivery and performance of the Western
Gas Acquisition Agreement and consummation of the Western Gas Merger.




          (c) The Agents shall have received (i) the documentation relating to the Western Gas Merger,
including the Western Gas Acquisition Agreement and (ii) a certificate of a Responsible Officer of
the Borrower certifying that: (A) Western Gas and the Borrower are concurrently consummating the
Western Gas Merger in accordance with the terms of the Western Gas Acquisition Agreement and such
other documentation without waiver or amendment thereof which waiver or amendment would be material
and adverse to the Lenders unless consented to by the Agents and (B) attached thereto is a true and
complete copy of the Western Gas Certificate of Merger.




          (d) The Agents shall have received the Audited Financial Statements, Unaudited Financial
Statements and Pro Forma EBITDA referenced in Section 6.01(d) with respect to Western Gas or with
respect to Western Gas and Kerr-McGee.




          (e) The Administrative Agent (or its counsel) shall have received an opinion of Akin Gump
Strauss Hauer & Feld LLP, special counsel to the Borrower, to the effect that, subject to and
limited by usual and customary qualifications, the Western Gas Merger will be effective upon the
filing of the Western Gas Certificate of Merger with the Secretary of State of Delaware. In
rendering such opinion, Akin Gump Strauss Hauer & Feld LLP may state that they
have relied as to certain matters on information obtained from public officials and officers
of the Borrower.




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          (f) The Administrative Agent (or its counsel) shall have received a favorable opinion of an
associate general counsel or the general counsel of the Borrower, to the effect that:




               (i) the Western Gas Acquisition Agreement has been duly authorized, executed and delivered by
the Borrower and the Western Gas Merger Sub;



               (ii) the execution, delivery and performance by the Borrower and the Western Gas Merger Sub of
the Western Gas Acquisition Agreement will not violate the restated certificate of incorporation or
bylaws of the Borrower or the certificate of incorporation or bylaws of the Western Gas Merger Sub,
each as in effect on the date of such opinion;



               (iii) the execution, delivery and performance of the Western Gas Acquisition Agreement will
not violate (A) any applicable provision of any law that in such Person’s opinion is generally
applicable to transactions of the type contemplated by this Agreement, (B) any material order or
(C) any provision of any indenture, loan agreement or other similar agreement or instrument known
to such counsel (having made due inquiry with respect thereto) binding on the Borrower or the
Western Gas Merger Sub or affecting its property; and



               (iv) to the knowledge of such counsel (having made due inquiry with respect thereto), there is
no proceeding pending or threatened before any court or administrative agency which, in the opinion
of such counsel, will result in a final determination which would result in a Material Adverse
Change.


In rendering such opinion, the associate general counsel or the general counsel of the Borrower
shall opine only as to matters governed by the federal laws of the United States of America, the
laws of the State of Texas and the DGCL. Such counsel may assume matters covered by other opinions
delivered hereunder and by counsel to Western Gas under the Western Gas Acquisition Agreement and
may also state that he/she has relied on certificates of public officials, certificates of officers
of the Borrower and other sources believed by him/her to be responsible.




          (g) No event, condition, change, occurrence or development of a state of circumstances which,
individually or in the aggregate, has had or would reasonably be expected to have a Western Gas MAE
has occurred.




     Section 6.03 Conditions Precedent to the Kerr-McGee Advance. The obligation of each Lender to make
its Loan in respect of the Kerr-McGee Advance shall not become effective until the date on which
each of the following conditions are satisfied (or waived in accordance with Section 9.02):



          (a) The Administrative Agent (or its counsel) shall have received a certificate of a
Responsible Officer of the Borrower to the effect that prior to and after the making of the
Kerr-McGee Advance:




39









 








               (i) the representations and warranties contained in Sections 3.01 and 3.03 are true and
accurate on and as of the Effective Date (except to the extent that such representations and
warranties relate solely to an earlier date); and



               (ii) no event has occurred and is continuing or would result from the proposed borrowing,
which constitutes an Event of Default or a Default.



          (b) The Administrative Agent (or its counsel) shall have received certified copies of the
resolutions of the Board of Directors or the Executive Committee of the Directors of the Borrower
and the Kerr-McGee Merger Sub authorizing the execution, delivery and performance of the Kerr-McGee
Acquisition Agreement and consummation of the Kerr-McGee Merger.




          (c) The Agents shall have received (i) the documentation relating to the Kerr-McGee Merger,
including the Kerr-McGee Acquisition Agreement and (ii) a certificate of a Responsible Officer of
the Borrower certifying that: (A) Kerr-McGee and the Borrower are concurrently consummating the
Kerr-McGee Merger in accordance with the terms of the Kerr-McGee Acquisition Agreement and such
other documentation without waiver or amendment thereof which waiver or amendment would be material
and adverse to the Lenders unless consented to by the Agents and (B) attached thereto is a true and
complete copy of the Kerr-McGee Certificate of Merger.




          (d) The Agents shall have received the Audited Financial Statements, Unaudited Financial
Statements and Pro Forma EBITDA referenced in Section 6.01(d) with respect to Kerr-McGee or with
respect to Kerr-McGee and Western Gas.




          (e) The Administrative Agent (or its counsel) shall have received an opinion of Akin Gump
Strauss Hauer & Feld LLP, special counsel to the Borrower, to the effect that, subject to and
limited by usual and customary qualifications, the Kerr-McGee Merger will be effective upon the
filing of the Kerr-McGee Certificate of Merger with the Secretary of State of Delaware. In
rendering such opinion, Akin Gump Strauss Hauer & Feld LLP may state that they have relied as to
certain matters on information obtained from public officials and officers of the Borrower.




          (f) The Administrative Agent (or its counsel) shall have received a favorable opinion of an
associate general counsel or the general counsel of the Borrower, to the effect that:




               (i) the Kerr-McGee Acquisition Agreement has been duly authorized, executed and delivered by
the Borrower and the Kerr-McGee Merger Sub;



               (ii) the execution, delivery and performance by the Borrower and the Kerr-McGee Merger Sub of
the Kerr-McGee Acquisition Agreement will not violate the restated certificate of incorporation or
bylaws of the Borrower or the certificate of incorporation or bylaws of the Kerr-McGee Merger Sub,
each as in effect on the date of such opinion;



               (iii) the execution, delivery and performance of the Kerr-McGee Acquisition Agreement will not
violate (A) any applicable provision of any law that in such Person’s opinion is generally
applicable to transactions of the type contemplated by this



40









 




Agreement, (B) any material order or (C) any provision of any indenture, loan agreement or
other similar agreement or instrument known to such counsel (having made due inquiry with respect
thereto) binding on the Borrower or the Kerr-McGee Merger Sub or affecting its property; and




               (iv) to the knowledge of such counsel (having made due inquiry with respect thereto), there is
no proceeding pending or threatened before any court or administrative agency which, in the opinion
of such counsel, will result in a final determination which would result in a Material Adverse
Change.


In rendering such opinion, the associate general counsel or the general counsel of the Borrower
shall opine only as to matters governed by the federal laws of the United States of America, the
laws of the State of Texas and the DGCL. Such counsel may assume matters covered by other opinions
delivered hereunder and by counsel to Kerr-McGee under the Kerr-McGee Acquisition Agreement and may
also state that he/she has relied on certificates of public officials, certificates of officers of
the Borrower and other sources believed by him/her to be responsible.




          (g) No event, condition, change, occurrence or development of a state of circumstances which,
individually or in the aggregate, has had or would reasonably be expected to have a Kerr-McGee MAE
has occurred.




ARTICLE VII

EVENTS OF DEFAULT




     Section 7.01 Events of Default. If one or more of the following events of default (“Events of
Default”) shall occur and be continuing:



          (a) the Borrower shall default in any payment of principal of any Loan when and as the same
shall become due and payable, or the Borrower shall default in any payment of interest on any Loan,
or in the payment of any fees or other amounts, when and as the same shall become due and payable,
and such default shall continue for a period of three (3) Business Days;




          (b) any representation or warranty, or certification made by the Borrower herein or any
statement or representation or certification made or deemed to be made pursuant to Article III or
Article VI shall prove to have been incorrect in any material respect when made;




          (c) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 4.02(a) or Section 4.04 applicable to it or Article V required to be observed
or performed by the Borrower;




          (d) the Borrower shall default in the performance of any other term, condition, covenant or
agreement contained in this Agreement (except as set forth in Section 7.01(a) or Section 7.01(c))
required to be performed by it and such default shall continue unremedied for a period of thirty
(30) days after written notice thereof, specifying such default and requiring it to be remedied,
shall have been received by the Borrower from any Lender;




          (e) the Borrower shall default in the performance of any term, condition, covenant or
agreement contained in the Public Indenture and such default shall have resulted in

41









 








any of the Securities (as defined in the Public Indenture) being declared due and payable
prior to the date on which such Securities would otherwise have become due and payable;




          (f) the Borrower or any Subsidiary shall (i) default in the payment of principal of any
Indebtedness in an aggregate principal amount in excess of $100,000,000 (other than the Notes)
beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created as and when the same shall become due and payable and such default shall
have resulted in such Indebtedness being declared due and payable prior to its stated maturity, or
(ii) default in the observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, and such default shall have resulted in such Indebtedness being declared due and payable
prior to its stated maturity;




          (g) the Borrower or any Significant Subsidiary shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of its property, (ii) admit in writing its inability to pay its debts as such debts
become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a
voluntary case under any Bankruptcy Law, (v) file a petition seeking to take advantage of any other
law providing for similar relief of debtors, or (vi) consent or acquiesce in writing to any
petition duly filed against it in any involuntary case under any Bankruptcy Law;




          (h) a proceeding or case shall be commenced, without the application or consent of the
Borrower or any Significant Subsidiary in any court of competent jurisdiction seeking (i) its
liquidation, reorganization, dissolution or winding up, or the composition or readjustment of its
debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of
its assets, or (iii) similar relief in respect of it, under any law providing for the relief of
debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a
period of sixty (60) days (or such longer period, so long as the Borrower shall be taking such
action in good faith as shall be reasonably necessary to obtain the timely dismissal or stay of
such proceeding or case); or an order for relief shall be entered in an involuntary case under any
applicable Bankruptcy Law, against the Borrower or such Significant Subsidiary;




          (i) one or more judgments for the payment of money in an aggregate amount in excess of
$100,000,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof, and
the same shall remain undischarged for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;




          (j) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a liability which would have a
material adverse effect on the business, assets, operations, prospects or conditions, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole; or




          (k) any Change of Control shall occur,

42









 








then and in each and every case the Majority Lenders, by notice in writing to the Borrower, may
terminate the Commitments of the Lenders hereunder and/or declare the unpaid balance of the Loans
and any other amounts payable hereunder to be forthwith due and payable and thereupon such balance
shall become so due and payable without presentation, protest or further demand or notice of any
kind, all of which are hereby expressly waived; provided that in the case of Section 7.01(g) or (h)
above, the Commitments of the Lenders hereunder shall automatically terminate and the Loans and any
other amounts payable hereunder shall forthwith be due and payable.




ARTICLE VIII

THE AGENTS




     Section 8.01 Powers. Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder and the other Loan Documents. The Administrative Agent shall
have and may exercise such powers hereunder and under any agreement executed and delivered pursuant
to the terms hereof as are specifically delegated to the Administrative Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto. The Administrative
Agent shall have no duties or responsibilities except those expressly set forth in this Agreement,
and shall not by reason of this Agreement have a fiduciary relationship with any Lender.



     Section 8.02 Exculpatory Provisions. Neither any Agent nor any of their respective directors,
officers, agents, employees or affiliates shall be (i) liable for any action taken or omitted to be
taken by any of them hereunder or under any agreement executed and delivered pursuant to the terms
hereof or in connection herewith or therewith except for their own gross negligence or willful
misconduct, or (ii) responsible to the Lenders for any recitals, statements, warranties or
representations herein or under any agreement, certificate or other document referred to or provide
for in, or received by the Agents under or in connection with, this Agreement or any other Loan
Document or for the value, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Borrower or any Subsidiary a party
thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower or any Subsidiary.



     Section 8.03 Right to Indemnity. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder or under any agreement executed and delivered pursuant to the
terms hereof unless it shall first be indemnified (upon requesting such indemnification) to its
satisfaction by the Lenders against any and all liability and expense which it may incur by reason
of taking or continuing to take any such action. The Lenders agree to indemnify the Administrative
Agent in its capacity as such, to the extent not reimbursed by the Borrower under this Agreement,
pro rata according to each Lender’s Applicable Percentage for any and all liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent
as agent in any way relating to or arising out of this Agreement, the Notes, the Transactions or
any other documents contemplated by or referred to herein (including the costs and expenses which
the Borrower is obligated to pay under this



43









 







Agreement but excluding, unless an Event of Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or thereof or of any such other documents; provided no
such liability, obligation, damage, penalty, action, judgment, suit, cost, expense or disbursement
results from the Administrative Agent’s gross negligence or willful misconduct; provided, further,
that, in the event the Administrative Agent receives indemnification from the Lenders hereunder
with respect to costs and expenses which the Borrower is obligated to pay under this Agreement, the
Administrative Agent shall remit to the Lenders the amount of such costs and expenses to the extent
subsequently paid by the Borrower, such remittance to be in accordance with the proportionate
amount of the indemnification made by each respective Lender.



     Section 8.04 Delegation of Duties. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be answerable, except as to money or securities received by them or
their authorized agents, for the default or misconduct of any such agent or attorney-in-fact
selected by it with reasonable care.



     Section 8.05 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by the Administrative
Agent or, in the case of counsel to or auditors of the accounts of the Borrower, the Borrower. The
Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a notice of the assignment or transfer thereof satisfactory to the
Administrative Agent signed by such payee shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate
or it shall first be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders (or, if so specified by this Agreement, all Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.



     Section 8.06 Rights as a Lender. With respect to its Commitment and the Loans made by it, each
Agent shall have the same rights and powers hereunder and under any agreement executed and
delivered pursuant to the terms hereof as any Lender and may exercise the same as though it were
not an Agent and the term “Lender” or “Lenders” shall, unless the context otherwise indicates,
include each Agent in its capacity as a Lender hereunder and thereunder. Each Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking or
trust business with the Borrower, the Subsidiaries and their respective Affiliates as if it were
not an Agent.



44









 





     Section 8.07 Non-Reliance on Agents or other Lenders. Each Lender agrees that it has,
independently and without reliance on the Administrative Agent or on any other Lender, and based on
such documents and information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to make each Loan to be made by such Lender hereunder and enter into this
Agreement and that it will, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this Agreement and the
other Loan Documents. The Administrative Agent shall not be required to keep itself informed as to
the performance or observance by the Borrower of this Agreement or any other document referred to
or provided for herein or therein or to inspect the properties or books of the Borrower. Except
for notices, reports and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the affairs, financial condition
or business of the Borrower or its Subsidiaries or which may at any time come into possession of
the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.



     Section 8.08 Events of Default. If the Administrative Agent receives actual knowledge of an Event
of Default hereunder, it shall promptly inform the Lenders thereof. The Administrative Agent shall
not be deemed to have actual knowledge of an Event of Default hereunder until it shall have
received a written notice from the Borrower or any Lender referring to this Agreement, describing
such Event of Default and stating that such notice is a “Notice of Default.”



     Section 8.09 Successor Administrative Agent. Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign
at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Majority
Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after such retiring Administrative Agent gives notice of its
resignation, then such retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights,
powers, privileges and duties of such retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was
acting as the Administrative Agent hereunder.



     Section 8.10 Co-Advisors; Joint-Lead Arrangers and Co-Syndication Agents. Nothing contained in
this Agreement shall be construed to impose any obligation or duty whatsoever on any Persons named
on the cover of this Agreement or elsewhere in this
Agreement as Co-Advisors, Joint-Lead Arrangers or Co-Syndication Agents, other than those
applicable to all Lenders as such.



45









 








ARTICLE IX

MISCELLANEOUS




     Section 9.01 Notices. Except in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:



          (a) if to the Borrower, to it at 1201 Lake Robbins Drive, The Woodlands, Texas 77380,
Attention of the Assistant Treasurer, Telecopy No. (832) 636-5029; messenger delivery to 1201 Lake
Robbins Drive, The Woodlands, Texas 77380;




          (b) if to the Administrative Agent, to UBS AG, Stamford Branch, Loan and Agency Services
Group, 677 Washington Boulevard, Stamford, CT 06901, Attention of Christopher M. Aitken, Phone No.:
(203) 719-3845, Facsimile No.: (203) 719-4176.




          (c) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.




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



     Section 9.02 Waivers; Amendments.



          (a) No failure or delay by the Administrative Agent or any Lender in exercising any right or
power hereunder or under the other Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agent and the
Lenders provided herein are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, to the fullest extent permitted by applicable law, the making of a Loan shall not be
construed as a waiver of any Event of Default, regardless of whether the Administrative Agent or
any Lender may have had notice or knowledge of such Event of Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Majority
Lenders or by the Borrower and the Administrative Agent with the consent of the Majority Lenders;
provided that no such agreement shall (i) increase the



46









 








Commitment of any Lender without the written consent of such Lender, (ii) reduce or forgive
any principal amount owing hereunder or reduce the rate of interest thereon or fee payable
hereunder, without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment or mandatory prepayment of any principal amount owing hereunder, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.13(a) or Section 2.13(c) in a manner
that would alter the pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change Section 6.01, without the consent of each Lender, or (vi) change any of the
provisions of this Section or the definition of “Majority Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent without the prior written consent of the
Administrative Agent.




     Section 9.03 Expenses; Indemnity; Damage Waiver.



          (a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the syndication (prior to the date
hereof) of the credit facilities provided for herein, the preparation, execution, delivery and
administration of this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions (including the Transactions) contemplated hereby or thereby
shall be consummated) and (ii) all reasonable out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or protection of its rights
under this Agreement and the other Loan Documents, including its rights under this Section, or in
connection with the Loans made, including all such reasonable out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans. Notwithstanding
anything to the contrary, the Borrower shall not have any obligation to pay the fees or expenses of
any Lender or the Administrative Agent in connection with any assignment of, or the grant of any
participation in, any rights of a Lender under or in connection with this Agreement; provided that
the provisions of this sentence shall not apply to any Lender substituted for a Defaulting Lender
pursuant to Section 9.13(b) and (c).




          (b) The Borrower shall indemnify the Administrative Agent, each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery (but not the negotiation or preparation) of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of hazardous materials on or from any property owned or operated by the
Borrower or any Subsidiary, or any environmental

47









 






liability related in any way to the Borrower or any Subsidiary, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses either (i) did not result
directly or indirectly from the action or inaction of the Borrower or any Subsidiary, or (ii)
resulted from the gross negligence, unlawful conduct or willful misconduct of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent under paragraph (a) or (b) of this Section 9.03, each Lender severally agrees
to pay to the Administrative Agent such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Administrative Agent in its
capacity as such.




          (d) All amounts due under this Section shall be payable promptly after written demand therefor
together with a copy of the invoice(s) or other documentation setting forth in reasonable detail
the amount demanded and the matter(s) to which it relates.




     Section 9.04 Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder except as
provided in Section 5.03 or with the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void). Each Lender
may assign to one or more lenders or other entities (upon consultation with the Borrower) all or a
portion of its rights and obligations under this Agreement and its Note subject to the conditions
set forth in (b) below. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement with
the prior written consent (such consent not to be unreasonably withheld or delayed) of the
Administrative Agent, provided that no consent of the Administrative Agent shall be required for an
assignment of any Commitment to an assignee that is a Lender with a Commitment immediately prior to
giving effect to such assignment or an Affiliate of a Lender.




               (ii) Assignments shall be subject to the following additional conditions:



                    (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s



48









 




Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $10,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably
withheld or delayed), provided that no such consent of the Borrower shall be required if an Event
of Default under Section 7.01(a), (b), (g), (h) or (i) has occurred and is continuing;




                    (B) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement and, unless each of the Borrower and
the Administrative Agent otherwise consent, shall result in the assigning Lender having no less
than $10,000,000 in Commitments and Loans after giving effect to such assignment;



                    (C) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; and



                    (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.



               (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section,
from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Section 2.14, Section 2.16, Section 2.22 and Section 9.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.



               (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City or Stamford, Connecticut, 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 Commitment of, and principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the “Register”). The entries in the Register shall be prima
facie evidence of the existence and amounts of the obligations recorded therein, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 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.



49









 





               (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b)(ii)(C) of this Section and any written consent to such assignment required by paragraph (b)(i)
of this Section and upon satisfaction of the additional conditions set forth in paragraph (b)(ii)
of this Section, the Administrative Agent shall accept such Assignment and Assumption and in the
case of the Commitment, record the information contained therein in the Register maintained at the
New York office of the Administrative Agent. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the applicable Register as provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrower, the Administrative Agent and the Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of Section
2.14, Section 2.16 and Section 2.22 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. Notwithstanding anything to the
contrary, unless otherwise contractually agreed, no Participant shall be entitled to the benefits
of Section 9.08 as though it were a Lender.




               (ii) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
Section 2.16 than the Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) and Section 2.16(g) as though it were a Lender.



          (d) 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 in accordance with Regulation A of the
Board of Governors of the Federal Reserve System, and to a trustee for the benefit of holders of
debt securities issued by such Lender, and this Section 9.04 shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or

50









 








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 9.05 Survival. All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Event of
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any other amount payable under this Agreement is outstanding and unpaid. The provisions of
Section 2.14, Section 2.16, Section 2.22, Section 9.03, this Section 9.05, and Article VIII shall
survive and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans or the termination of this Agreement or any other
provision hereof.



     Section 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 6.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.



     Section 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     Section 9.08 Right of Setoff. If (a) an Event of Default shall have occurred and be continuing,
and (b) the principal of the Loans has been accelerated each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including



51









 







other rights of setoff) which such Lender may have. Upon the exercise by a Lender of its rights
under this Section, such Lender shall notify the Administrative Agent and the Borrower thereof.



     Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process.



          (a) This Agreement and the Notes shall be construed in accordance with and
governed by the law of the State of New York.




          (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the Supreme Court of the State of New
York, sitting in New York County and of the United States District Court of the Southern District
of New York, and any appellate court from either thereof, in any action or proceeding arising out
of or relating to this Agreement, the Notes, 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 New York State court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement or any other Loan Document shall affect any right that the
Administrative Agent, any of the other Agents or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement against the Borrower or its properties in the courts of
any jurisdiction. Each party to this Agreement hereby irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to the bringing of any such action or proceeding in such respective
jurisdictions.




          (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




     Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.



     Section 9.11 Headings. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.



52









 





     Section 9.12 Confidentiality. The Administrative Agent and each of 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 who have a reason to use such Information in connection with the
administration of this Agreement (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential and will agree to use the Information solely for the purpose of such
administration), (b) to the extent requested by any regulatory authority or any self-regulatory
body having authority to regulate or oversee any aspect of any Lender’s (or any Affiliate of such
Lender) business or property, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement,
or to any counterparty (or its advisor) to any swap, securitization, or derivative transaction
referencing or involving any of its rights or obligations under this Agreement, (g) with the
consent of the Borrower, or (h) to the extent such Information (i) becomes publicly available other
than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a non-confidential basis from a source other than the Borrower or any of its
Affiliates. For the purposes of this Section, “Information” means all information received from
the Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure
by the Borrower; provided that, in the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



     Section 9.13 Termination and Substitution of Lender.



          (a) If (i) the obligation of any Lender to make Eurodollar Loans or continue Loans as
Eurodollar Loans has been suspended pursuant to Section 2.15, or (ii) any Lender has demanded
compensation under Section 2.14 or Section 2.16, the Borrower may, upon three Business Days’ notice
to such Lender through the Administrative Agent, prepay in full all of the outstanding Loans of
such Lender, or its assignee, together with accrued interest thereon to the date of prepayment and
all other amounts payable hereunder to such Lender accrued to the date of prepayment, and
concurrently therewith terminate this Agreement with respect to such Lender by giving notice of
such termination to the Administrative Agent and such Lender.




          (b) If any Lender shall become a Defaulting Lender, the Borrower may, in its sole discretion
and without prejudice to any right or remedy that the Borrower may have against such Defaulting
Lender with respect to, on account of, arising from or relating to any event pursuant to which such
Lender shall be a Defaulting Lender, upon notice to such Defaulting Lender, the Administrative
Agent, (i) if at such time there are no Loans owed to such Defaulting Lender outstanding, terminate
this Agreement with respect to such Defaulting Lender, or (ii) if at

53









 








such time such Defaulting Lender shall have any Commitment or Loans outstanding, either (A)
terminate any Commitment of such Lender in excess (any such excess being the “Excess Commitment”)
of such outstanding Loan or Loans and leave the outstanding Loan or Loans of such Defaulting Lender
in place for payment or satisfaction in the ordinary course in accordance with the other provisions
of this Agreement (in which case the total Commitments hereunder shall be immediately reduced by
the amount of such Defaulting Lender’s Excess Commitment and thereafter reduced as such Loan or
Loans is or are paid) or (B) subject to obtaining a substitute lender or lenders to assume the
Commitment of such Defaulting Lender pursuant to subsection (c) below, terminate this Agreement
with respect to such Defaulting Lender and prepay in full the outstanding Loans of such Defaulting
Lender together with accrued interest to the date of prepayment, provided that the provisions of
Section 2.22 shall not apply to any such prepayment.




          (c) If the Borrower elects to terminate this Agreement with respect to any Lender under
Section 9.13(b)(ii)(B), the Borrower shall cooperate in good faith with the Administrative Agent to
seek a mutually satisfactory substitute lender or lenders (which may be one or more of the Lenders)
to assume the Commitment of such relevant Lender and until a substitute lender (or lenders) has
been found and documents reasonably acceptable to each of the substitute lender or lenders, the
Administrative Agent and the Borrower have been executed to provide for the assignment of the
rights and obligations of the Defaulting Lender to the substitute lender or lenders in accordance
with Section 9.04, the total Commitments hereunder shall be reduced by an amount equal to such
terminated Lender’s Commitment.




     Section 9.14 USA Patriot Act Notice. Each Lender hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “USA Patriot Act”), it is required to obtain, verify and record information that
identifies the Borrower and its Subsidiaries, which information includes the name and address of
the Borrower and such Subsidiaries and other information that will allow such Lender to identify
the Borrower and such Subsidiaries in accordance with the USA Patriot Act.



[SIGNATURES BEGIN ON NEXT PAGE]




54









 





     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.



	 	 	 	 	 
	BORROWER:	 ANADARKO PETROLEUM CORPORATION

 	 
	 	By:  	/s/ Robert G. Gwin
 	 
	 	 	Robert G. Gwin 	 
	 	 	Vice President and Treasurer 	 
	 




[Signature Page — Anadarko 364-Day Term Loan Agreement]









 







	 	 	 	 	 	 	 
	AGENTS:	 	UBS AG, STAMFORD BRANCH, as
Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Richard L. Tavrow
 

Richard L. Tavrow
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Irja R. Otsa	 	 
	 

	 	Title:
	 	Associate Director	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]




 









 





	 	 	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC. as
Co-Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James F. Reilly
 

JAMES F. REILLY, JR.
	 	 
	 

	 	Title:
	 	Managing Director
	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 










 







	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS

BRANCH as Co-Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James Moran	 	 
	 

	 	 	 	 	 	 
	 	 	Name: James Moran	 	 
	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Nupur Kumar	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Nupur Kumar	 	 
	 	 	Title: Associate	 	 






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	LENDERS:	 	USB LOAN FINANCE LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard L. Tavrow
	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Richard L. Tavrow	 	 
	 	 	Title: Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Irja R. Otsa	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Irja R. Otsa	 	 
	 	 	Title: Associate Director	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 










 







	 	 	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/ Vanessa Gomez
	 	 	 	 	 
	 	 	Name:	 	Vanessa Gomez
	 	 	Title:	 	Vice President






	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Nupur Kumar
	 	 	 	 	 
	 	 	Name:	 	Nupur Kumar
	 	 	Title:	 	Associate






[Signature
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	 	 	CITICORP NORTH AMERICA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ James F. Reilly
 

JAMES F. REILLY, JR.
	 	 
	 

	 	Title:
	 	Managing Director
	 	 






[Signature
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	 	 	GOLDMAN SACHS CREDIT
PARTNERS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William W. Archer	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	William W. Archer	 	 
	 

	 	Title:
	 	Managing Director	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]




 









 





	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	ABN AMRO BANK,
N.V.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ John D. Reed	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John D. Reed	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M. Aamir Khan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	M. Aamir Khan	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]




 









 





	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	BMO CAPITAL MARKETS FINANCING, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James V. Ducote	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	James V. Ducote	 	 
	 

	 	Title:
	 	Vice President	 	 






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 










 







	 	 	 	 	 	 	 
	 	 	BNP PARIBAS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Gabe Ellisor
 

Gabe Ellisor
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert Long
 

Robert Long
	 	 
	 

	 	Title:
	 	Vice President	 	 






[Signature
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	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Zewditu Menelik
 

Zewditu Menelik	 	 
	 

	 	Title:
	 	Vice President	 	 






[Signature
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	 	 	THE BANK OF TOKYO-MITSUBISHI

UFJ, LTD. — HOUSTON AGENCY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kelton Glasscock	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Kelton Glasscock	 	 
	 

	 	Title:
	 	Vice President & Manager	 	 





[Signature
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	 	 	DEUTSCHE BANK AG NEW YORK

BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Marcus Tarkington	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Marcus Tarkington	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rainer Meier	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Rainer Meier	 	 
	 

	 	Title:
	 	Vice President	 	 





[Signature
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	 	 	MORGAN STANLEY BANK
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Daniel Twenge
	 

	 	 	 	 
	 

	 	Name:
	 	Daniel Twenge
	 

	 	Title:
	 	Authorized Signatory






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	 	 	MORGAN STANLEY SENIOR FUNDING, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Daniel Twenge
	 

	 	 	 	 
	 

	 	Name:
	 	Daniel Twenge
	 

	 	Title:
	 	Vice President






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 










 








	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND plc

 	 
	 	By:  	/s/ David Slye
 	 
	 	Name:  	David Slye 	 
	 	Title:  	Vice President 	 
	 



[Signature Page — Anadarko 364-Day Term Loan Agreement]




 









 







	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL

ASSOCIATION

 	 
	 	By:  	/s/ Russell Clingman
 	 
	 	Name:  	Russell Clingman 	 
	 	Title:  	Director 	 
	 



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	 	 	CALYON NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tom Byargeon	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tom Byargeon	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Willis	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michael Willis	 	 
	 

	 	Title:
	 	Director	 	 





[Signature Page — Anadarko 364-Day Term Loan Agreement]




 









 







	 	 	 	 	 	 	 
	 	 	THE BANK OF NOVA SCOTIA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ V. H. Gibson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	V. H. Gibson	 	 
	 

	 	Title:
	 	Assistant Agent	 	 





[Signature Page — Anadarko 364-Day Term Loan Agreement]
















 







	 	 	 	 	 	 
	 	 	SOCIÉTÉ GÉNÉRALE
	 
	 	 	 	 
	 

	 	BY:
	 	/s/ Powell Robinson
	 

	 	 	 	 
	 

	 	Name:
	 	Powell Robinson, III
	 

	 	Title:
	 	Managing Director






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 









 








	 	 	 	 	 	 
	 	 	DnB NOR Bank ASA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Alfred C. Jones
	 

	 	 	 	 
	 

	 	Name:
	 	ALFRED C. JONES III
	 

	 	Title:
	 	SENIOR VICE PRESIDENT
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Philip F. Kurpiewski
	 

	 	 	 	 
	 

	 	 	 	PHILIP F. KURPIEWSKI
	 

	 	 	 	SENIOR VICE PRESIDENT






[Signature Page — Anadarko 364-Day Term Loan Agreement]





 









 







	 	 	 	 	 
	 	[LENDER]

THE BANK OF NEW YORK

 	 
	 	By:  	/s/ Craig J. Anderson
 	 
	 	Name:  	Craig J. Anderson 	 
	 	Title:  	Vice President 	 
	 



[Signature Page — Anadarko 364-Day Term Loan Agreement]





 









 








	 	 	 	 	 
	 	ROYAL BANK OF CANADA 

 	 
	 	By:  	/s/ Linda M. Stephens
 	 
	 	Name:  	Linda M. Stephens 	 
	 	Title:  	Authorized Signatory 	 
	 



[Signature Page — Anadarko 364-Day Term Loan Agreement]











 









 








	 	 	 	 	 
	 	MELLON BANK, N.A.

 	 
	 	By:  	/s/ Mark W. Rogers
 	 
	 	Name:  	Mark W. Rogers 	 
	 	Title:  	Vice President 	 
	 



[Signature Page — Anadarko 364-Day Term Loan Agreement]





 









 





SCHEDULE I




PRICING SCHEDULE




     The “Eurodollar Margin” for any day will be based on the pricing grid set forth below in the
applicable row and column corresponding to the ratings that exist on such day. A Facility Fee will
be paid, if any, based on the pricing grid set forth below.



Applicable Margin




	 	 	 	 	 	 	 	 	 
	 	 	Eurodollar	 	 	 	 
	Ratings	 	Margin	 	 	Facility Fee Rate	 
	3AA-/Aa3 or
better
	 	17.5 bps	 	5.0 bps
	 
	 	 	 	 	 	 	 	 
	A+/A1
	 	20.0 bps	 	6.0 bps
	 
	 	 	 	 	 	 	 	 
	A/A2
	 	25.0 bps	 	7.0 bps
	 
	 	 	 	 	 	 	 	 
	A-/A3
	 	30.0 bps	 	8.0 bps
	 
	 	 	 	 	 	 	 	 
	BBB+/Baa1
	 	35.0 bps	 	10.0 bps
	 
	 	 	 	 	 	 	 	 
	BBB/Baa2
	 	45.0 bps	 	12.5 bps
	 
	 	 	 	 	 	 	 	 
	BBB-/Baa3
	 	65.0 bps	 	15.0 bps
	 
	 	 	 	 	 	 	 	 
	<BBB-/Baa3
	 	80.0 bps	 	25.0 bps






     Ratings in the above pricing grid relate to Borrower’s senior unsecured non-credit enhanced
publicly held indebtedness (the “Index Debt”). For purposes of the foregoing, (i) if
either Moody’s or S&P shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating of <BBB- or <Baa3, as applicable; (ii) if the
ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall
fall within different Categories, each rate specified above (the “Applicable Rate”) shall
be based on the higher of the two ratings unless one of the ratings is two or more Categories lower
than the other, in which case the Eurodollar Margin and the Facility Fee shall be determined by
reference to the Category next above that of the lower of the two ratings; and (iii) if the ratings
established or deemed to have been established by Moody’s and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating system of Moody’s or S&P), such change
shall be effective as of the date on which it is first announced by the applicable rating agency.
Each change in the Eurodollar Margin and Facility Fee shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding



Schedule I — Pricing Schedule










 




the effective date of the next such change. If the rating system of Moody’s or S&P shall change,
or if either such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Eurodollar Margin and Facility Fee shall be
determined by reference to the rating most recently in effect prior to such change or
cessation.





Schedule I — Pricing Schedule