Exhibit 10.3
[AUSTRALIAN CREDIT AGREEMENT]
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CREDIT AGREEMENT
dated as of May 12, 2005
among
APACHE ENERGY LIMITED,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Global Administrative Agent,
CITISECURITIES LIMITED,
as Australian Administrative Agent,
DEUTSCHE BANK AG, SYDNEY BRANCH
and
JPMORGAN CHASE BANK,
as Australian Co-Syndication Agents,
and
BANK OF AMERICA, N.A., SYDNEY BRANCH
and
UBS AG, AUSTRALIA BRANCH,
as Australian Co-Documentation Agents,
------------
CITIGROUP GLOBAL MARKETS INC. and
DEUTSCHE BANK SECURITIES INC.,
as Co-Lead Arrangers and Joint Bookrunners
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CONTENTS
CLAUSE PAGE
ARTICLE I. Definitions............................................................................... 1
SECTION 1.1 Defined Terms............................................................... 1
SECTION 1.2 [Intentionally omitted]..................................................... 12
SECTION 1.3 Terms Generally............................................................. 12
SECTION 1.4 Accounting Terms; GAAP...................................................... 13
ARTICLE II. The Credits............................................................................... 13
SECTION 2.1 Commitments................................................................. 13
SECTION 2.2 Loans and Borrowings........................................................ 13
SECTION 2.3 Requests for Borrowings..................................................... 14
SECTION 2.4 [Intentionally omitted]..................................................... 14
SECTION 2.5 Funding of Borrowings....................................................... 14
SECTION 2.6 Extension of Maturity Date and of Commitments............................... 15
SECTION 2.7 Interest Elections.......................................................... 17
SECTION 2.8 Termination and Reduction of Commitments.................................... 18
SECTION 2.9 Repayment of Loans; Evidence of Debt........................................ 18
SECTION 2.10 Prepayment of Loans......................................................... 19
SECTION 2.11 Fees........................................................................ 19
SECTION 2.12 Interest.................................................................... 20
SECTION 2.13 Alternate Rate of Interest.................................................. 21
SECTION 2.14 Increased Costs............................................................. 21
SECTION 2.15 Break Funding Payments...................................................... 22
SECTION 2.16 Taxes....................................................................... 23
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.................................................................... 24
SECTION 2.18 Mitigation Obligations; Replacement of Lenders.............................. 25
SECTION 2.19 Currency Conversion and Currency Indemnity.................................. 26
SECTION 2.20 Additional Borrowers........................................................ 27
ARTICLE III. Representations and Warranties............................................................ 28
SECTION 3.1 Organization................................................................ 28
SECTION 3.2 Authorization and Validity.................................................. 28
SECTION 3.3 Government Approval and Regulation.......................................... 28
SECTION 3.4 Superannuation Scheme....................................................... 29
SECTION 3.5 Regulation U................................................................ 29
SECTION 3.6 Taxes....................................................................... 29
SECTION 3.7 Subsidiaries; Restricted Subsidiaries....................................... 29
ARTICLE IV. Conditions................................................................................ 29
SECTION 4.1 Effectiveness............................................................... 29
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CONTENTS
CLAUSE PAGE
SECTION 4.2 All Loans................................................................... 31
ARTICLE V. Affirmative Covenants..................................................................... 32
SECTION 5.1 Financial Reporting and Notices............................................. 32
SECTION 5.2 Compliance with Laws........................................................ 33
SECTION 5.3 Maintenance of Properties................................................... 33
SECTION 5.4 Insurance................................................................... 33
SECTION 5.5 Books and Records........................................................... 33
SECTION 5.6 Use of Proceeds............................................................. 34
SECTION 5.7 Borrowing Request........................................................... 34
ARTICLE VI. Financial Covenants....................................................................... 34
SECTION 6.1 Ratio of Total Debt to Capital.............................................. 34
ARTICLE VII. Negative Covenants........................................................................ 34
SECTION 7.1 Liens....................................................................... 34
SECTION 7.2 Mergers..................................................................... 36
SECTION 7.3 Asset Dispositions.......................................................... 36
SECTION 7.4 Transactions with Affiliates................................................ 36
SECTION 7.5 Restrictive Agreements...................................................... 36
SECTION 7.6 Guaranties.................................................................. 36
ARTICLE VIII. Events of Default......................................................................... 37
SECTION 8.1 Listing of Events of Default................................................ 37
SECTION 8.2 Action if Administration, Winding Up, Arrangements and
Insolvency.................................................................. 39
SECTION 8.3 Action if Other Event of Default............................................ 39
ARTICLE IX. Agents.................................................................................... 39
ARTICLE X. Miscellaneous............................................................................. 41
SECTION 10.1 Notices..................................................................... 41
SECTION 10.2 Waivers; Amendments......................................................... 43
SECTION 10.3 Expenses; Indemnity; Damage Waiver.......................................... 44
SECTION 10.4 Successors and Transferees.................................................. 46
SECTION 10.5 Survival.................................................................... 48
SECTION 10.6 Counterparts; Integration; Effectiveness.................................... 48
SECTION 10.7 Severability................................................................ 48
SECTION 10.8 Right of Setoff............................................................. 48
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS..................................................................... 49
SECTION 10.10 Headings.................................................................... 50
SECTION 10.11 Confidentiality............................................................. 50
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CONTENTS
CLAUSE PAGE
SECTION 10.12 Interest Rate Limitation.................................................... 50
SECTION 10.13 Joint and Several Obligations............................................... 52
SECTION 10.14 NO ORAL AGREEMENTS.......................................................... 52
SCHEDULES AND EXHIBITS
EXHIBITS:
Exhibit A Form of Legal Opinion of Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Exhibit B Form of Legal Opinion of ▇▇▇▇▇▇▇▇ & Knight LLP
Exhibit C Form of Compliance Certificate
Exhibit D Form of Substitution Certificate
Exhibit E Form of Borrowing/Interest Election Request
Exhibit F Form of Guaranty
Exhibit G Form of Additional Borrower Counterpart
SCHEDULES:
Schedule 2.1 Commitments
Schedule 3.7 Subsidiaries; Restricted Subsidiaries
Schedule 7.1 Liens
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 12, 2005, is among APACHE ENERGY
LIMITED (ACN 009 301 964), a corporation organized under the laws of the State
of Western Australia, Australia ("Apache Energy Limited" and together with each
other Person that becomes an Additional Borrower pursuant to Section 2.20, the
"Borrower"), the LENDERS (as defined below) party hereto, JPMORGAN CHASE BANK,
N.A., as Global Administrative Agent, CITISECURITIES LIMITED (ABN 51 008 489
610), as Australian Administrative Agent, DEUTSCHE BANK AG, SYDNEY BRANCH (ABN
13 064 165 162) and JPMORGAN CHASE BANK (ARBN 074 112 011), as Australian
Co-Syndication Agents, and BANK OF AMERICA, N.A., SYDNEY BRANCH (ARBN 064 874
531) and UBS AG, AUSTRALIA BRANCH (ABN 47 ▇▇▇ ▇▇▇ ▇▇▇), as Australian
Co-Documentation Agents.
The parties hereto agree as follows:
ARTICLE I.
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"Accepting Lenders" is defined in Section 2.6(c).
"Additional Borrower" means any Person which becomes a Borrower under this
Agreement pursuant to Section 2.20.
"Additional Borrower Counterpart" is defined in Section 2.20.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Global Administrative Agent.
"Affiliate" means, with respect to a specified 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" means each of the Global Administrative Agent, the Australian
Administrative Agent, the Australian Co-Syndication Agents and the Australian
Co-Documentation Agents.
"Agreed Currency" is defined in Section 2.19(a).
"Agreement" means this Credit Agreement, as it may be amended,
supplemented, restated or otherwise modified and in effect from time to time.
"Apache Energy Limited" means Apache Energy Limited (ACN 009 301 964), a
corporation organized under the laws of the State of Western Australia,
Australia.
"Applicable Percentage" means, 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 Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, (i) with respect to any Loan, the
applicable rate per annum set forth below under the caption "Eurodollar Margin"
plus the Commitment Utilization Margin, if any, or (ii) with respect to the
Facility Fees payable hereunder, the applicable rate per annum set forth below
under the caption "Facility Fee", in either case, based upon the ratings by
▇▇▇▇▇'▇, S&P and Fitch, respectively, applicable on such date to the Index Debt:
Facility Fee (in basis Eurodollar Margin (in basis
Index Debt Ratings: points) points)
------------------- ---------------------- ---------------------------
Category 1: > or = A+/A1 5.50 12.00
Category 2: A/A2 6.00 14.00
Category 3: A-/A3 7.00 23.00
Category 4: BBB+/Baa1 9.00 31.00
Category 5: BBB/Baa2 11.00 39.00
Category 6: BBB-/Baa3 12.50 50.00
Category 7: < BBB-/Baa3 17.50 57.50
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇, S&P or Fitch shall
not have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the penultimate sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 7;
(ii) if the ratings established or deemed to have been established by ▇▇▇▇▇'▇,
S&P and Fitch for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the highest two ratings, unless the highest
two ratings shall fall within different Categories in which case the Applicable
Rate shall be based on the lower of the highest two ratings; and (iii) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇, S&P and Fitch
for the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇, S&P or Fitch), such change shall be effective as of
the date on which it is first announced by the applicable rating agency. Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of ▇▇▇▇▇'▇, S&P or
Fitch shall change, or if any such rating agency shall cease to be in the
business of rating corporate debt obligations, 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 Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation. Changes in the Applicable Rate will occur automatically without prior
notice.
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"Australian Administrative Agent" means Citisecurities Limited (ABN 51 008
489 610) in its capacity as Australian administrative agent for the lenders
party to the Australian Credit Agreement and any successor thereto.
"Australian Co-Documentation Agents" means Bank of America, N.A., Sydney
Branch (ARBN 064 874 531) and UBS AG, Australia Branch (ABN 47 ▇▇▇ ▇▇▇ ▇▇▇),
each in its capacity as Australian Co-Documentation Agent for the Lenders
hereunder.
"Australian Co-Syndication Agents" means Deutsche Bank AG, Sydney Branch
(ABN 13 064 165 162) and JPMorgan Chase Bank (ARBN 074 112 011), each in its
capacity as Australian Co-Syndication Agent for the Lenders hereunder.
"Authorized Officer" means, with respect to any Borrower, the Chairman,
the Vice Chairman, the President, the Executive Vice President and Chief
Financial Officer and the Vice President and Treasurer of such Borrower, and any
officer or employee of such Borrower specified as such to the Australian
Administrative Agent and the Global Administrative Agent in writing by any of
the aforementioned officers of such Borrower, or, with respect to Parent, the
Chairman, the President, the Executive Vice President and Chief Financial
Officer and the Vice President and Treasurer of Parent, and any officer or
employee of Parent specified as such to the Australian Administrative Agent and
the Global Administrative Agent in writing by any of the aforementioned officers
of Parent.
"Availability Period" means, with respect to any Lender, the period from
and including the Global Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitment of such Lender;
provided, however, that no Commitment of any Lender shall terminate prior to the
Maturity Date except as provided in Sections 2.6, 2.8, 4.1, 8.2, 8.3 and 10.4.
"Borrower" means Apache Energy Limited and each other Person that becomes
an Additional Borrower pursuant to Section 2.20.
"Borrowing" means Loans made or continued on the same date and as to which
a single Interest Period is in effect.
"Borrowing Request" means a request by Borrower for a Borrowing in
accordance with Section 2.3, in substantially the form of Exhibit E or any other
form approved by the Australian Administrative Agent and the Global
Administrative Agent.
"Business Day" means a weekday on which (a) (for the purpose of
determining the LIBO Rate under the second sentence of the definition of "LIBO
Rate") the relevant financial markets are open in London; (b) (except for the
purpose stated in paragraph (a)) banks are open for business in Sydney and
Melbourne; and (c) in the case where a payment is to be made, banks are open for
business in New York, New York, Sydney and Melbourne.
"Canadian Administrative Agent" means Royal Bank of Canada in its
capacity as Canadian administrative agent for the lenders party to the Canadian
Credit Agreement and any successor thereto.
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"Canadian Borrower" means Apache Canada Ltd., a corporation organized
under the laws of the Province of Alberta, Canada, and each other Person that
becomes a borrower under the Canadian Credit Agreement.
"Canadian Credit Agreement" means that certain Credit Agreement of even
date herewith among the Canadian Borrower, the Canadian Lenders, the Global
Administrative Agent, the Canadian Administrative Agent and the other agents
party thereto, as it may be amended, supplemented, restated or otherwise
modified and in effect from time to time.
"Canadian Lenders" means the financial institutions listed on the
signature pages of the Canadian Credit Agreement and their respective successors
and assigns.
"Canadian Loan Documents" means the Canadian Credit Agreement, any notes,
any guaranties, any assignment agreements, and the agreement with respect to
fees, together with all exhibits, schedules and attachments thereto, and all
other agreements, documents, certificates, financing statements and instruments
from time to time executed and delivered pursuant to or in connection with any
of the foregoing.
"Capital" means the consolidated shareholder's equity of Parent and its
Subsidiaries plus the consolidated Debt of Parent and its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et. seq., as amended from time to
time.
"Certificate of Extension" means a certificate of Parent and Borrower,
executed by an Authorized Officer and delivered to the Global Administrative
Agent and the Australian Administrative Agent, in a form acceptable to the
Global Administrative Agent and the Australian Administrative Agent, which
requests an extension of the then scheduled Maturity Date pursuant to Section
2.6.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.16(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Combined Commitments" means the commitment of each Combined Lender under
the Combined Credit Agreements, as such commitment may be reduced, increased or
terminated from time to time pursuant to the Combined Loan Documents and, if any
such commitments are no longer in effect under any Combined Credit Agreement,
the aggregate unpaid principal amount of the outstanding loans for which the
applicable commitment is no longer in effect under such Combined Credit
Agreement. The initial amount of each Combined Lender's Commitment is set forth
on Schedule 2.1 to the applicable Combined Credit Agreement, or in a Assignment
and Acceptance (as defined in the U.S. Credit Agreement and the Canadian Credit
Agreement) or in a Substitution Certificate or pursuant to which such Combined
Lender shall
4
have assumed its Combined Commitment, as applicable. The initial aggregate
amount of the Combined Lenders' Combined Commitments is $750,000,000.
"Combined Commitment Utilization" means, for any period, the ratio of (i)
the aggregate principal amount of then outstanding Combined Loans (other than
any Competitive Loans) to (ii) the then aggregate amount of the Combined
Commitments.
"Combined Credit Agreements" means this Agreement, the U.S. Credit
Agreement and the Canadian Credit Agreement.
"Combined Lenders" means the Lenders hereunder, the U.S. Lenders and the
Canadian Lenders.
"Combined Loan Documents" means the Loan Documents, the U.S. Loan
Documents and the Canadian Loan Documents.
"Combined Loans" means the loans made by the Combined Lenders to Borrower,
U.S. Borrower and Canadian Borrower pursuant to the Combined Loan Documents.
"Combined Required Lenders" means Combined Lenders having in the aggregate
51% of the aggregate total Combined Commitments under the Combined Loan
Documents.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans as such commitment may be (a) reduced from time to time
pursuant to Section 2.8, (b) reduced or increased from time to time pursuant to
Section 2.6 or pursuant to assignments by or to such Lender pursuant to Section
10.4 and (c) terminated pursuant to Sections 4.1, 8.2 or 8.3. The amount of the
Commitment represents such Lender's maximum Credit Exposure hereunder. The
initial amount of each Lender's Commitment is set forth on Schedule 2.1, or in
the Substitution Certificate pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $150,000,000.
"Commitment Utilization Margin" means, on any date, if the Combined
Commitment Utilization is less than 50%, then an amount equal to zero basis
points per annum (0.00 bps) and, if the Combined Commitment Utilization is
greater than or equal to 50%, then an amount equal to 10.00 basis points per
annum. Changes in the Commitment Utilization Margin will occur automatically
without prior notice.
"Competitive Loan" shall have the meaning set forth in the U.S. Credit
Agreement.
"Consolidated Assets" means the total assets of the Parent and its
subsidiaries which would be shown as assets on a consolidated balance sheet of
Parent and its subsidiaries prepared in accordance with GAAP.
"Consolidated Tangible Net Worth" means (i) the consolidated shareholder's
equity of Parent and its Subsidiaries (determined in accordance with GAAP), less
(ii) the amount of consolidated intangible assets of Parent and its
Subsidiaries, plus (iii) the aggregate amount of any non-cash write downs, on a
consolidated basis, by Parent and its Subsidiaries during the term hereof.
5
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Lender's Loans at such time.
"Debt" of any Person means indebtedness, including capital leases, shown
as debt on a consolidated balance sheet of such Person prepared in accordance
with GAAP.
"Declining Lenders" is defined in Section 2.6(c).
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of America.
"Environmental Laws" means all applicable federal, state, provincial,
territorial or local statutes, laws, ordinances, codes, rules and regulations
(including consent decrees and administrative orders) relating to public health
and safety, protection of the environment and planning (including, for example
and without limitation, the Environmental Protection Act 1986 (WA), Explosives &
Dangerous Goods ▇▇▇ ▇▇▇▇ (WA), Mining Act (WA), Protection of the Environment
Operations ▇▇▇ ▇▇▇▇ (NSW), Dangerous Goods ▇▇▇ ▇▇▇▇ (NSW), Environmentally
Hazardous Chemicals ▇▇▇ ▇▇▇▇ (NSW), Waste Avoidance and Resource Recovery ▇▇▇
▇▇▇▇ (NSW), Environmental Planning & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇), and
Environmental Reform (Consequential Provisions) ▇▇▇ ▇▇▇▇ (Cth).
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Borrower or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Event of Default" has the meaning assigned to such term in Article VIII.
"Excluded Taxes" means, with respect to any Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by Australia, 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 Australia or any similar tax imposed by any
other jurisdiction in which Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by Borrower under Section
2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this
6
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 Borrower with respect to such withholding tax pursuant to Section
2.16(a).
"Existing Global Credit Facilities" means (i) that certain Credit
Agreement [U.S. Credit Agreement], dated as of June 3, 2002, among Apache
Corporation, the lenders party thereto, JPMorgan Chase Bank, as global
administrative agent, and the other agents party thereto, (ii) that certain
Credit Agreement [Australian Credit Agreement], dated as of June 3, 2002, among
Apache Energy Limited (ACN 009 301 964), the lenders party thereto, JPMorgan
Chase Bank, as global administrative agent, and the other agents party thereto,
and (iii) that certain Credit Agreement [Canadian Credit Agreement], dated as of
June 3, 2002, among Apache Canada Ltd., the lenders party thereto, JPMorgan
Chase Bank, as global administrative agent, and the other agents party thereto.
"Facility Fee" is defined in Section 2.11(a).
"Fitch" means Fitch, Inc. and any affiliate or successor thereto that is a
nationally recognized rating agency in the United States.
"Foreign Lender" means any Lender that is not a resident in Australia for
purposes of, the Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cth). For purposes of this
definition, Australia and each state thereof shall be deemed to constitute a
single jurisdiction.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent with the most recent financial
statements of Parent, Borrower and their Subsidiaries delivered to the Lenders
pursuant to the Combined Loan Documents.
"Global Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as global administrative agent for the Combined Lenders.
"Global Effective Date" means a date agreed upon by Parent, Borrower, the
Australian Administrative Agent and the Global Administrative Agent as the date
on which the conditions specified in Section 4.1 of each Combined Credit
Agreement are satisfied (or waived in accordance with Section 10.2 of each
Combined Credit Agreement).
"Global Effectiveness Notice" means a notice and certificate of Parent and
Borrower properly executed by an Authorized Officer of Parent and Borrower,
respectively, addressed to the Combined Lenders and delivered to the Global
Administrative Agent and the Australian Administrative Agent, in sufficient
number of counterparts to provide one for each such lender and each agent under
each Combined Credit Agreement, whereby Parent certifies satisfaction of all the
conditions precedent to the effectiveness under Section 4.1 of each Combined
Credit Agreement.
"Governmental Authority" means the government of Australia, any other
nation or any political subdivision thereof, whether state, provincial,
territorial or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising
7
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guaranty" means that certain Deed of Guaranty, dated as of May 12, 2005,
by Parent in favor of the Lenders and the other Lender Parties (as defined
therein), in substantially the form of Exhibit F or any other form approved by
the Global Administrative Agent and the Australian Administrative Agent, as such
Guaranty may from time to time be amended, supplemented, restated, reaffirmed or
otherwise modified.
"Hazardous Material" means (a) any "hazardous substance," as defined by
CERCLA; (b) any "hazardous waste," as defined by the Resource Conservation and
Recovery Act; or (c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
Environmental Law.
"Indebtedness" of any Person means all (i) Debt, and (ii) guaranties or
other contingent obligations in respect of the Debt of any other Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, non-credit enhanced, long-term
indebtedness for borrowed money of Parent that is not guaranteed by any other
Person or subject to any other credit enhancement.
"Interest Election Request" means a request by Borrower to convert or
continue a Borrowing in accordance with Section 2.7, in substantially the form
of Exhibit E or any other form approved by the Global Administrative Agent and
the Australian Administrative Agent.
"Interest Payment Date" means, with respect to any Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Borrowing with an Interest Period of more than three (3)
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three (3) months' duration after the first day of such
Interest Period.
"Interest Period" means the period commencing on the date of any Borrowing
and ending on the numerically corresponding day, or, with the consent of the
Australian Administrative Agent, such other day, in the calendar month that is
one, two, three or six months (or, with the consent of each Lender, nine or
twelve months) thereafter, as Borrower may elect, provided, that (i) 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 (ii) 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. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Judgment Currency" is defined in Section 2.19(b).
8
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to Section 10.4 (including any
commercial lending institution becoming a party hereto pursuant to a
Substitution Certificate) or otherwise by operation of law, other than any such
Person that ceases to be a party hereto pursuant to a Substitution Certificate.
"LIBO Rate" means, with respect to any Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as reasonably determined by the Global Administrative
Agent, the Australian Administrative Agent and Borrower 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 "LIBO
Rate" with respect to such Borrowing for such Interest Period shall be the rate
(rounded upwards, if necessary, to the next 1/16 of 1%) 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 Global 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.
"Lien" means any mortgage, pledge, lien, encumbrance, charge, or security
interest of any kind, granted or created to secure Indebtedness; provided,
however, that, with respect to any prohibitions of Liens on Property, the
following transactions shall not be deemed to create a Lien to secure
Indebtedness; (i) production payments (as such term is used in the United
States) and (ii) liens required by statute and created in favor of Australian
governmental entities to secure partial, progress, advance, or other payments
intended to be used primarily in connection with air or water pollution control.
"Loan Document" means this Agreement, the Guaranty, any Borrowing Request,
any Interest Election Request, any Certificate of Extension, any Substitution
Certificate, any Additional Borrower Counterpart, any election notice, the
agreement with respect to fees described in Section 2.11(b) and each other
agreement, document or instrument delivered by Borrower or any other Person in
connection with this Agreement, as such may be amended from time to time.
"Loans" means the loans made by the Lenders to Borrower pursuant to this
Agreement which bear interest at a rate determined by reference to the LIBO
Rate.
"Material Adverse Effect" means, as to any matter, that such matter could
reasonably be expected to materially and adversely affect the assets, business,
properties, condition (financial or otherwise) of Parent and its Subsidiaries
taken as a whole. No matter shall be considered to result, or be expected to
result, in a Material Adverse Effect unless such matter causes Parent and its
Subsidiaries, on a consolidated basis, to suffer a loss or incur a cost equal to
at least ten percent (10%) of Parent's Consolidated Tangible Net Worth.
9
"Maturity Date" means the Original Maturity Date, or such other later date
as may result from any extension requested by Borrower and Parent and consented
to by some or all of the Lenders pursuant to Section 2.6.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor thereto
that is a nationally recognized rating agency in the United States.
"Obligations" means, at any time, the sum of (i) the outstanding principal
amount of any Loans plus (ii) all accrued and unpaid interest and Facility Fees
plus (iii) all other obligations of Borrower or any Subsidiary to any Lender or
any Agent, whether or not contingent, arising under or in connection with any of
the Loan Documents.
"Original Maturity Date" means May 12, 2010.
"Other Currency" is defined in Section 2.19(a).
"Other Taxes" means 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.
"Parent" means Apache Corporation, a corporation organized under the laws
of the State of Delaware.
"Person" means any natural person, corporation, limited liability company,
unlimited liability company, joint venture, partnership, firm, association,
trust, government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Property" means (i) any property owned or leased by Borrower or any
Subsidiary, or any interest of Borrower or any Subsidiary in property, which is
considered by Borrower to be capable of producing oil, gas, or minerals in
commercial quantities, (ii) any interest of Borrower or any Subsidiary in any
refinery, processing or manufacturing plant owned or leased by Borrower or any
manufacturing plant owned or leased by Borrower or any Subsidiary, (iii) any
interest of Borrower or any Subsidiary in all present and future oil, gas, other
liquid and gaseous hydrocarbons, and other minerals now or hereafter produced
from any other Property or to which Borrower or any Subsidiary may be entitled
as a result of its ownership of any Property, and (iv) all real and personal
assets owned or leased by Borrower or any Subsidiary used in the drilling,
gathering, processing, transportation, or marketing of any oil, gas, and other
hydrocarbons or minerals, except (a) any such real or personal assets related
thereto employed in transportation, distribution or marketing or (b) any
interest of Borrower or any Subsidiary in, any refinery, processing or
manufacturing plant, or portion thereof, which property described in clauses (a)
or (b), in the opinion of the Board of Directors of Borrower, is not a principal
plant or principal facility in relation to the activities of Borrower and its
Subsidiaries taken as a whole.
"Register" has the meaning set forth in Section 10.4.
"Regulation U" means any of Regulations T, U or X of the Board of
Governors of the Federal Reserve System of the United States from time to time
in effect and shall include any
10
successor or other regulations or official interpretations of said Board or any
successor Person relating to the extension of credit for the purpose of
purchasing or carrying margin stocks applicable to member banks of the Federal
Reserve System or any successor Person.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Replacement Lenders" is defined in Section 2.6(c)(ii).
"Required Lenders" means Lenders having in the aggregate 51% of the
aggregate total Commitments, or, if the Commitments have been terminated,
Lenders holding 51% of the aggregate unpaid principal amount of the outstanding
Obligations.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 690, et seq., as amended from time to time.
"Restricted Subsidiary" means any Subsidiary of Borrower or Parent that
owns any asset representing or consisting of an entitlement to production from,
or other interest in, reserves of oil, gas or other minerals in place located in
the United States, Canada or Australia, including, without limitation, with
respect to the Parent, the Borrower and the Canadian Borrower, or is otherwise
designated as such by Parent in writing to the Global Administrative Agent.
"S&P" means Standard & Poor's and any successor thereto that is a
nationally-recognized rating agency in the United States.
"subsidiary" means, with respect to any Person, any corporation or other
similar entity of which more than 50% of the outstanding capital stock (or other
equity) having ordinary voting power to elect a majority of the Board of
Directors of such corporation or entity (irrespective of whether or not at the
time capital stock or any other class or classes of such corporation or entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person.
"Subsidiary" means any subsidiary of Borrower or Parent; provided,
however, that in all events the following Persons shall not be deemed to be
Subsidiaries of the Parent or any of its Subsidiaries: Apache Offshore
Investment Partnership, a Delaware general partnership, Apache Offshore
Petroleum Limited Partnership, a Delaware limited partnership, Main Pass 151
Pipeline Company, a Texas general partnership, and Apache 681/682 Joint Venture,
a Texas joint venture.
"Substitution Certificate" means a substitution certificate entered into
by a Lender and a transferee (with the consent of any party whose consent is
required by Section 10.4), and accepted by the Australian Administrative Agent,
in substantially the form of Exhibit D or any other form approved by the
Australian Administrative Agent.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"Transactions" means the execution, delivery and performance by Borrower
of this Agreement and the other Loan Documents, the borrowing of Loans and the
use of the proceeds thereof.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of Borrower that is not a
Restricted Subsidiary.
"U.S. Borrower" means Apache Corporation, a Delaware corporation, and each
other Person that becomes a borrower under the U.S. Credit Agreement.
"U.S. Credit Agreement" means that certain Credit Agreement of even date
herewith among the U.S. Borrower, the U.S. Lenders, the Global Administrative
Agent, and the other agents party thereto, as it may be amended, supplemented,
restated or otherwise modified and in effect from time to time.
"U.S. Lenders" means the financial institutions listed on the signature
pages of the U.S. Credit Agreement and their respective successors and assigns.
"U.S. Loan Documents" means the U.S. Credit Agreement, any notes, any
assignment agreements, and the agreement with respect to fees, together with all
exhibits, schedules and attachments thereto, and all other agreements,
documents, certificates, financing statements and instruments from time to time
executed and delivered pursuant to or in connection with any of the foregoing.
SECTION 1.2 [Intentionally omitted].
SECTION 1.3 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
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SECTION 1.4 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if Borrower
notifies the Australian Administrative Agent and the Global Administrative Agent
that Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Australian
Administrative Agent and the Global Administrative Agent notify Borrower that
the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II.
The Credits
SECTION 2.1 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans in U.S. Dollars to Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender's Credit Exposure exceeding such Lender's
Commitment or (b) the Credit Exposures exceeding the total Commitments. Subject
to the conditions set forth herein, Borrower may borrow, prepay and reborrow
Loans. Apache Energy Limited and any Additional Borrowers shall be jointly and
severally liable for all Obligations.
SECTION 2.2 Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Borrowing shall be comprised entirely of
Loans as Borrower may request in accordance herewith. Each Lender at its option
may make any Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 (including any continuation of existing
Loans made in connection therewith); provided that a Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments. There shall not at any time be more than a total of ten (10)
Borrowings outstanding.
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(d) Notwithstanding any other provision of this Agreement, Borrower shall
not be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.3 Requests for Borrowings. To request a Borrowing, Borrower
shall notify the Australian Administrative Agent of such request by telephone
not later than 1:00 p.m., New York time, three Business Days before the date of
the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Australian Administrative Agent of a written Borrowing Request in a form
approved by the Australian Administrative Agent and signed by Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(iv) an account or accounts in New South Wales, Australia,
Australian Capital Territory, Australia or outside of Australia for
payment of the Borrowing previously designated to the Australian
Administrative Agent by a written notice executed by two Authorized
Officers of Apache Energy Limited and, if applicable, two Authorized
Officers of any Additional Borrower.
If no Interest Period is specified with respect to any requested Borrowing, then
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Australian Administrative Agent shall advise each Lender of
the details thereof and of the amount of such Lender's Loan to be made as part
of the requested Borrowing.
SECTION 2.4 [Intentionally omitted].
SECTION 2.5 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York time, to the account of the Australian Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Australian Administrative Agent will make such Loans available to Borrower by
promptly crediting the amounts so received, in like funds, to an account of
Borrower maintained in New South Wales, Australia, Australian Capital Territory,
Australia or outside of Australia and designated by Borrower from time to time
in a written notice to the Australian Administrative Agent executed by two
Authorized Officers of Apache Energy Limited and two Authorized Officers of any
Additional Borrower.
(b) Unless the Australian Administrative Agent shall have received notice
from a Lender prior to the proposed time of any Borrowing that such Lender will
not make available to
14
the Australian Administrative Agent such Lender's share of such Borrowing, the
Australian Administrative Agent may assume that such Lender has made such share
available on the requested date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, but is under no obligation to, make
available to Borrower a corresponding amount. In such event, if a Lender has not
in fact made its share of the applicable Borrowing available to the Australian
Administrative Agent, then the applicable Lender and Borrower severally agree to
pay to the Australian 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 Borrower to but excluding the date of
payment to the Australian Administrative Agent, at (i) in the case of such
Lender, at a rate reasonably determined by the Australian Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of Borrower, the interest rate applicable to Loans made in such
Borrowing. If such Lender pays such amount to the Australian Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.6 Extension of Maturity Date and of Commitments.
(a) Subject to the other provisions of this Agreement and provided that no
Event of Default has occurred and is continuing, the total Commitments shall be
effective for an initial period from the Global Effective Date to the Original
Maturity Date; provided that the Maturity Date, and concomitantly the total
Commitments, may be extended for successive one year periods expiring on the
date which is one (1) year from the then scheduled Maturity Date. If Parent and
Borrower shall request in a Certificate of Extension delivered to the Australian
Administrative Agent and the Global Administrative Agent at least 45 days prior
to a date which is an anniversary of the Global Effective Date that the Maturity
Date be extended for one year from the then scheduled Maturity Date, then the
Australian Administrative Agent shall promptly notify each Lender of such
request and each Lender shall notify the Australian Administrative Agent, no
later than 30 days prior to such anniversary of the Global Effective Date,
whether such Lender, in the exercise of its sole discretion, will extend the
Maturity Date for such one year period. Any Lender which shall not timely notify
the Australian Administrative Agent whether it will extend the Maturity Date
shall be deemed to not have agreed to extend the Maturity Date. No Lender shall
have any obligation whatsoever to agree to extend the Maturity Date. Any
agreement to extend the Maturity Date by any Lender shall be irrevocable, except
as provided in Section 2.6(c).
(b) If all Lenders notify the Australian Administrative Agent pursuant to
clause (a) of this Section 2.6 of their agreement to extend the Maturity Date,
then the Australian Administrative Agent shall so notify the Global
Administrative Agent, each Lender and Borrower, and such extension shall be
effective without other or further action by any party hereto for such
additional one year period.
(c) If Lenders constituting at least the Required Lenders approve the
extension of the then scheduled Maturity Date (such Lenders agreeing to extend
the Maturity Date herein called the "Accepting Lenders") and if one or more
Lenders shall notify, or be deemed to notify, the Australian Administrative
Agent pursuant to clause (a) of this Section 2.6 that they will not extend the
then scheduled Maturity Date (such Lenders herein called the "Declining
Lenders"), then (A) the Australian Administrative Agent shall promptly so notify
Borrower and the
15
Accepting Lenders, (B) the Accepting Lenders shall, upon Borrower's election to
extend the then scheduled Maturity Date in accordance with clause (i) or (ii)
below, extend the then scheduled Maturity Date and (C) Borrower shall, pursuant
to a notice delivered to the Australian Administrative Agent, the Accepting
Lenders and the Declining Lenders, no later than the tenth (10th) day following
the date by which each Lender is required, pursuant to Section 2.6(a), to
approve or disapprove the requested extension of the total Commitments, either:
(i) elect to extend the Maturity Date and direct the Declining
Lenders to terminate their Commitments, which termination shall become
effective on the date which would have been the Maturity Date except for
the operation of this Section. On the date which would have been the
Maturity Date except for the operation of this Section, (x) Borrower shall
deliver a notice of the effectiveness of such termination to the Declining
Lenders with a copy to the Australian Administrative Agent and (y)
Borrower shall pay in full in immediately available funds all Obligations
of Borrower owing to the Declining Lenders, including any amounts required
pursuant to Section 2.15, and (z) upon the occurrence of the events set
forth in clauses (x) and (y), the Declining Lenders shall each cease to be
a Lender hereunder for all purposes, other than for purposes of Sections
2.14 through 2.17, Section 2.19 and Section 10.3, and shall cease to have
any obligations or any Commitment hereunder, other than to the Agents
pursuant to Article IX, and the Australian Administrative Agent shall
promptly notify the Accepting Lenders and Borrower of the new Commitments;
or
(ii) elect to extend the Maturity Date and, prior to or no later
than the then scheduled Maturity Date, (A) to replace one or more of the
Declining Lenders with another lender or lenders reasonably acceptable to
the Australian Administrative Agent (such lenders herein called the
"Replacement Lenders") and (B) Borrower shall pay in full in immediately
available funds all Obligations of Borrower owing to any Declining Lenders
which are not being replaced, as provided in clause (i) above; provided
that (x) any Replacement Lender shall purchase, and any Declining Lender
shall sell, such Declining Lender's rights and obligations hereunder
without recourse or expense to, or warranty by, such Declining Lender
being replaced for a purchase price equal to the aggregate outstanding
principal amount of the Obligations payable to such Declining Lender plus
any accrued but unpaid interest on such Obligations and accrued but unpaid
fees or other amounts owing in respect of such Declining Lender's Loans
and Commitments hereunder, and (y) upon the payment of such amounts
referred to in clause (x) and the execution of a Substitution Certificate
by such Replacement Lender and such Declining Lender, such Replacement
Lender shall each constitute a Lender hereunder and such Declining Lender
being so replaced shall no longer constitute a Lender (other than for
purposes of Sections 2.14 through 2.17, Section 2.19 and Section 10.3),
and shall no longer have any obligations hereunder, other than to the
Agents pursuant to Article IX; or
(iii) elect to revoke and cancel the extension request in such
Certificate of Extension by giving notice of such revocation and
cancellation to the Australian Administrative Agent and the Global
Administrative Agent (which shall promptly notify the Lenders thereof) no
later than the tenth (10th) day following the date by which
16
each Lender is required, pursuant to clause (a) of this Section, to
approve or disapprove the requested extension of the Maturity Date, and
concomitantly the total Commitments.
If Borrower fails to timely provide the election notice referred to in
this clause (c), Borrower shall be deemed to have revoked and cancelled the
extension request in the Certificate of Extension and to have elected not to
extend the Maturity Date.
SECTION 2.7 Interest Elections.
(a) Each Borrowing shall have an initial Interest Period as specified in
the applicable Borrowing Request (or one month if no Interest Period is
specified). Thereafter, Borrower may elect to continue such Borrowing and may
elect Interest Periods therefor, all as provided in this Section. Borrower may,
subject to the requirements of Section 2.2(c), elect different options with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant to this Section, Borrower shall notify
the Australian Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.3 if Borrower were
requesting a Borrowing resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Australian Administrative Agent of a written Interest Election Request signed by
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.2:
(i) the Borrowing 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
Borrowing (in which case the information to be specified pursuant to
clause (iii) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day; and
(iii) 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".
If any such Interest Election Request requests a Borrowing but does not specify
an Interest Period, then Borrower shall be deemed to have selected an Interest
Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Australian Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
17
(e) If Borrower fails to deliver a timely Interest Election Request with
respect to a Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be continued as a Borrowing with an
Interest Period of one month. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Australian
Administrative Agent, at the request of the Required Lenders, so notifies
Borrower, then, so long as an Event of Default is continuing, unless repaid and
provided the Indebtedness has not been accelerated pursuant to Section 8.3, each
Borrowing shall be continued as a Borrowing with an Interest Period of one month
at the end of the Interest Period applicable thereto.
SECTION 2.8 Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) Borrower may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000
and (ii) Borrower shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.10, the Credit Exposures would exceed the total Commitments.
(c) Borrower shall notify the Australian Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least two 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 Australian Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered by
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by Borrower (by notice to the Australian
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.9 Repayment of Loans; Evidence of Debt.
(a) Borrower hereby unconditionally promises to pay to the Australian
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Maturity Date or, if earlier, the date on which the
Commitment of such Lender relating to such Loan is terminated (except for
termination of the Commitment of the assigning Lender pursuant to Section
10.4(b)).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of 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 Australian Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Australian 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 paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Australian Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by one or
more promissory notes. In such event, Borrower shall prepare, execute and
deliver to such Lender promissory notes payable to the order of such Lender (or,
if requested by such Lender, to such Lender and its registered assigns and in a
form approved by the Australian Administrative Agent and the Global
Administrative Agent). Thereafter, the Loans evidenced by such promissory notes
and interest thereon shall at all times (including after assignment pursuant to
Section 10.4) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if any such promissory note
is a registered note, to such payee and its registered assigns).
SECTION 2.10 Prepayment of Loans.
(a) Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to prior notice in accordance
with paragraph (b) of this Section.
(b) Borrower shall notify the Australian Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder not later than 1:00 p.m.,
New York time, three Business Days before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.8, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.8. Promptly following receipt of any such notice, the
Australian Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing as provided in
Section 2.2. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12 and compensation for
break funding, to the extent required by Section 2.15.
SECTION 2.11 Fees.
(a) Borrower agrees to pay to the Australian Administrative Agent for the
account of each Lender a facility fee (the "Facility Fee"), which shall accrue
at the Applicable Rate on the
19
daily amount of the Commitment of such Lender (whether used or unused) during
the period from and including the Global Effective Date to but excluding the
earlier to occur of (i) the date on which such Commitment terminates (except for
termination of the Commitment of the assigning Lender pursuant to Section
10.4(b)) or (ii) the Maturity Date; provided that, if such Lender continues to
have any Credit Exposure after its Commitment terminates, then such Facility Fee
shall continue to accrue on the daily amount of such Lender's Credit Exposure
from and including the date on which its Commitment terminates to but excluding
the date on which such Lender ceases to have any Credit Exposure. Accrued
Facility Fees shall be payable in arrears on the first day of April, July and
October and the second day of January of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any Facility Fees accruing after the date on which the
Commitments terminate shall be payable on demand. All Facility Fees shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(b) Borrower agrees to pay to the Australian Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between Borrower and the Australian Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Australian Administrative Agent for
distribution, in the case of Facility Fees, to the Lenders. Fees paid shall not
be refundable under any circumstances.
SECTION 2.12 Interest.
(a) [Intentionally omitted].
(b) The Loans comprising each Borrowing shall bear interest on the daily
amount outstanding at the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraph of
this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to Borrowings with an Interest Period equal to one month as of the
date of determination.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and on the Maturity Date; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion, and (iv)
with respect to
20
any Declining Lender, accrued interest shall be paid upon the termination of the
Commitment of such Lender.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable LIBO Rate shall be
determined by the Australian Administrative Agent, and such determination shall
be conclusive absent demonstrable error.
SECTION 2.13 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Borrowing:
(i) the Australian Administrative Agent determines (which
determination shall be conclusive absent demonstrable error) that adequate
and reasonable means do not exist for ascertaining the LIBO Rate for such
Interest Period; or
(ii) the Australian Administrative Agent is advised by the Required
Lenders that the LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Australian Administrative Agent shall give notice thereof to Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Australian Administrative Agent notifies Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any Loans
from such Lender then outstanding shall bear interest at such Lender's cost of
funds plus the Applicable Rate for the remainder of the Interest Period
applicable to such Loan and (ii) until such time as such situation is no longer
the case, any Loan made thereafter shall consist of a Loan which bears interest
at such Lender's cost of funds plus the Applicable Margin made by such Lender(s)
and Loans made by each other Lender; provided that if the circumstances giving
rise to such notice do not affect all Interest Periods, then Borrowings with
respect to the unaffected Interest Periods shall be permitted.
SECTION 2.14 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender; or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Loan (or of maintaining its obligation to
make any such Loan) or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise), then
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
21
(b) If any Lender reasonably determines that any Change in Law regarding
capital requirements has or would 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 this Agreement or the Loans made by such Lender, to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time Borrower will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section (together with the
calculation thereof) shall be delivered to Borrower and shall be conclusive
absent demonstrable error. Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies 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 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.15 Break Funding Payments. In the event of (a) the payment of
any principal of any Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion of any Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.10(b) and is revoked in
accordance therewith) or (d) the assignment of any Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by
Borrower pursuant to either Section 2.6 or Section 2.18, then, in any such
event, Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a 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 LIBO 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, convert 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 Lender setting forth any amount or
amounts that such Lender is entitled to receive, together with the calculation
thereof, pursuant to this Section shall be delivered to Borrower and to the
Australian Administrative Agent and shall be conclusive absent demonstrable
error. Borrower shall pay to the Australian
22
Administrative Agent for the account of such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16 Taxes.
(a) Any and all payments by or on account of any obligation of Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if Borrower shall be required to
deduct 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 (including deductions applicable to additional sums payable under
this Section) the Australian Administrative Agent, the Global Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) Borrower shall make
such deductions and (iii) Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Borrower shall pay the Australian Administrative Agent, the Global
Administrative Agent and each Lender, within 10 days after written demand
therefor, the full amount of any Indemnified Taxes or Other Taxes paid by the
Australian Administrative Agent, the Global Administrative Agent or such Lender,
as the case may be, on or with respect to any payment by or on account of any
obligation of Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto (other than any such penalties or interest arising through the
failure of the Australian Administrative Agent, the Global Administrative Agent
or Lender to act as a reasonably prudent agent or lender, respectively), 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 Borrower by a Lender, or by
either the Australian Administrative Agent or the Global Administrative Agent on
its own behalf or on behalf of a Lender, shall be conclusive absent demonstrable
error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by Borrower to a Governmental Authority, Borrower shall deliver to the
Australian 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 Australian 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 Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to Borrower (with a copy to the
Australian 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 Borrower as will permit such payments to be made
without withholding or at a reduced rate.
23
(f) The Borrower shall (i) pay any stamp duty arising in connection with
any Loan Document and (ii) reimburse any Lender for any goods and services tax
that it is liable to pay on a supply made in connection with any Loan Document.
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest or fees, or of amounts payable under Section
2.14, 2.15 or 2.16, or otherwise) prior to 1:00 p.m., New York time, on the date
when due, in immediately available funds, without set-off or counterclaim. All
such payments shall be made to the Australian Administrative Agent, c/o Citibank
N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇, for account Citibank N.A., Hong
Kong (A/C No. ▇▇▇▇▇▇▇▇), SWIFT Code: ▇▇▇▇▇▇▇▇ Attention: Agency Department,
Reference: Apache, except that payments pursuant to Sections 2.14, 2.16 and 10.3
shall be made directly to the Persons entitled thereto. The Australian
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Australian Administrative Agent to pay fully all amounts of principal, interest
and fees then due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties. If insufficient funds are received due to
Borrower's entitlement to withhold amounts on account of Excluded Taxes in
relation to a particular Lender, such insufficiency shall not be subject to this
Section 2.17(b) but shall be withheld from and shall only affect payments made
to such Lender.
(c) 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 its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans 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 the 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 Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply).
24
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 Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of Borrower in the amount of such participation.
(d) Unless the Australian Administrative Agent shall have received notice
from Borrower prior to the date on which any payment is due to the Australian
Administrative Agent for the account of the Lenders hereunder that Borrower will
not make such payment, the Australian Administrative Agent may assume that
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, but is under no obligation to, distribute to the
Lenders the amount due. In such event, if Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Australian
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
Australian Administrative Agent, at a rate reasonably determined by the
Australian 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 2.17(d), then the Australian Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Australian Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Section
until all such unsatisfied obligations are fully paid.
SECTION 2.18 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to transfer its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or transfer (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or transfer.
(b) If any Lender requests compensation under Section 2.14, or if Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder, then Borrower may,
upon notice to such Lender and the Australian Administrative Agent and the
Global Administrative Agent, require such Lender to transfer and delegate,
without recourse or expense to, or warranty by, such Lender (in accordance with
and subject to the restrictions contained in Section 10.4), all its interests,
rights and obligations under this Agreement to a transferee designated by
Borrower and which meets the requirements of Section 10.4(b) that shall assume
such obligations (which transferee may be another Lender, if a
25
Lender accepts such transfer); provided that (i) Borrower shall have received
the prior written consent of the Australian Administrative Agent and the Global
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the transferee (to the extent of such
outstanding principal and accrued interest and fees) or Borrower (in the case of
all other amounts), (iii) the transferee and transferor shall have entered into
a Substitution Certificate, and (iv) in the case of any such transfer resulting
from a claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such transfer will result in a reduction in such
compensation or payments.
SECTION 2.19 Currency Conversion and Currency Indemnity.
(a) Payments in Agreed Currency. Borrower shall make payment relative to
any Obligation in the currency (the "Agreed Currency") in which the Obligation
was effected. If any payment is received on account of any Obligation in any
currency (the "Other Currency") other than the Agreed Currency (whether
voluntarily or pursuant to an order or judgment or the enforcement thereof or
the realization of any security or the liquidation of Borrower or otherwise
howsoever), such payment shall constitute a discharge of the liability of
Borrower hereunder and under the other Loan Documents in respect of such
obligation only to the extent of the amount of the Agreed Currency which the
relevant Lender or Agent, as the case may be, is able to purchase with the
amount of the Other Currency received by it on the Business Day next following
such receipt in accordance with its normal procedures and after deducting any
premium and costs of exchange.
(b) Conversion of Agreed Currency into Judgment Currency. If, for the
purpose of obtaining or enforcing judgment in any court in any jurisdiction, it
becomes necessary to convert into a particular currency (the "Judgment
Currency") any amount due in the Agreed Currency then the conversion shall be
made on the basis of the rate of exchange prevailing on the next Business Day
following the date such judgment is given and in any event Borrower shall be
obligated to pay the Agents and the Lenders any deficiency in accordance with
Section 2.19(c). For the foregoing purposes "rate of exchange" means the rate at
which the relevant Lender or Agent, as applicable, in accordance with its normal
banking procedures is able on the relevant date to purchase the Agreed Currency
with the Judgment Currency after deducting any premium and costs of exchange.
(c) Circumstances Giving Rise to Indemnity. If (i) any Lender or any Agent
receives any payment or payments on account of the liability of Borrower
hereunder pursuant to any judgment or order in any Other Currency, and (ii) the
amount of the Agreed Currency which the relevant Lender or Agent, as applicable,
is able to purchase on the Business Day next following such receipt with the
proceeds of such payment or payments in accordance with its normal procedures
and after deducting any premiums and costs of exchange is less than the amount
of the Agreed Currency due in respect of such obligations immediately prior to
such judgment or order, then Borrower on demand shall, and Borrower hereby
agrees to, indemnify and save the Lenders and the Agents harmless from and
against any loss, cost or expense arising out of or in connection with such
deficiency.
26
(d) Indemnity Separate Obligation. The agreement of indemnity provided for
in Section 2.19(c) shall constitute an obligation separate and independent from
all other obligations contained in this Agreement, shall give rise to a separate
and independent cause of action, shall apply irrespective of any indulgence
granted by the Lenders or Agents or any of them from time to time, and shall
continue in full force and effect notwithstanding any judgment or order for a
liquidated sum in respect of an amount due hereunder or under any judgment or
order.
SECTION 2.20 Additional Borrowers.
(a) A Person which is a Restricted Subsidiary which is a resident of, and
domiciled in, Australia may become an Additional Borrower with respect hereto,
and shall be bound by and entitled to the benefits and obligations of this
Agreement as a Borrower hereunder to the same extent as any other Borrower, upon
the fulfillment of the following conditions:
(i) Resolutions and Officers' Certificates. Such Person shall
deliver all the items identified in Section 4.1(a) with respect to such
Person.
(ii) Certificate. An Authorized Officer of each Borrower shall have
delivered to the Global Administrative Agent and the Australian
Administrative Agent a certificate stating that such Person is a
Restricted Subsidiary of the Parent which is resident of, and domiciled
in, Australia.
(iii) No Default. No Default or Event of Default shall have occurred
and be continuing.
(iv) Representations and Warranties. The representations and
warranties in Article III hereto are true and correct with respect to such
Person, mutatis mutandis, as of the date such Person executes the
Additional Borrower Counterpart described in clause (v) below.
(v) Additional Borrower Counterpart. Such Person shall execute an
Additional Borrower Counterpart to this Agreement, substantially in the
form of Exhibit G (the "Additional Borrower Counterpart") or such other
agreement in form and substance satisfactory to the Global Administrative
Agent and the Australian Administrative Agent.
(vi) Opinions of Counsel. The Global Administrative Agent and the
Australian Administrative Agent shall have received legal opinions, dated
as of the date such Person executes the Additional Borrower Counterpart
described above, addressed to the Agents and the Lenders, having
substantially the same coverage as those opinions attached hereto as
Exhibits A and B and in form and substance acceptable to the Global
Administrative Agent and the Australian Administrative Agent, in their
reasonable discretion.
(vii) Approval. The Global Administrative Agent and the Australian
Administrative Agent shall have approved the addition of such Person as an
Additional Borrower, such approval not to be unreasonably withheld.
27
(viii) Identification Requirements. Such Person shall provide such
evidence as is reasonably requested by either Global Administrative Agent
or the Australian Administrative Agent, on behalf of itself or any Lender,
to comply with all necessary "know your customer" or other similar checks
under all applicable laws and regulations.
(ix) Notice. The Global Administrative Agent, the Australian
Administrative Agent and each Lender shall have received prior written
notice from an Authorized Officer of each then current Borrower of an
Additional Borrower becoming party to this Agreement at least five (5)
Business Days prior to the date selected for such Additional Borrower to
become party to this Agreement.
(b) Upon fulfillment of the conditions in this Section 2.20(a), the Global
Administrative Agent will promptly notify each Lender of the date that such
Person becomes an Additional Borrower hereunder.
ARTICLE III.
Representations and Warranties
In order to induce the Lenders and the Agents to enter into this Agreement
and the Lenders to make Loans hereunder, Borrower represents and warrants unto
the Agents and each Lender as set forth in this Article III.
SECTION 3.1 Organization. Borrower and each of its Subsidiaries is a
corporation or other legal entity, in either case duly incorporated or otherwise
properly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite authority,
permits and approvals, and is in good standing to conduct its business in each
jurisdiction in which its business is conducted where the failure to so qualify
would have a Material Adverse Effect.
SECTION 3.2 Authorization and Validity. The execution, delivery and
performance by Borrower of this Agreement and each other Loan Document executed
or to be executed by it, are within the corporate or partnership powers, as
applicable, of Borrower, have been duly authorized by all necessary corporate or
partnership action on behalf of it, and do not (a) contravene the certificate or
articles of incorporation or memorandum or other organizational documents of
Borrower; (b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or affecting
Borrower or any Subsidiary; or (c) result in, or require the creation or
imposition of, any Lien, not permitted by Section 7.1, on any of properties of
Borrower or any of its Subsidiaries. This Agreement constitutes, and each other
Loan Document executed by Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of Borrower
enforceable in accordance with their respective terms subject as to enforcement
only to bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditor rights generally and to general principles
of equity.
SECTION 3.3 Government Approval and Regulation. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or
28
regulatory body or other Person is required for the due execution, delivery or
performance by Borrower of this Agreement or any other Loan Document. Neither
Parent or Borrower nor any of their Subsidiaries is an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.4 Superannuation Scheme. Borrower administers a defined benefit
superannuation fund (as described in the Superannuation Industry (Supervision)
▇▇▇ ▇▇▇▇ (the "SIS Act") and Parent, Borrower and their Subsidiaries liabilities
under such fund do not in the aggregate exceed $100,000,000.
SECTION 3.5 Regulation U. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a purpose which violates, or would be
inconsistent with, Regulation U. Terms for which meanings are provided in
Regulations U are used in this Section with such meanings.
SECTION 3.6 Taxes. Borrower and each of its Subsidiaries has to the best
knowledge of Borrower after due investigation filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books or which
the failure to file or pay could not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.7 Subsidiaries; Restricted Subsidiaries. Schedule 3.7 hereto
contains an accurate list of all of the presently existing Subsidiaries,
including, without limitation, Restricted Subsidiaries, of Borrower as of the
date of this Agreement, setting forth their respective jurisdictions of
incorporation or organization and the percentage of their respective capital
stock or, the revenue share attributable to the general and limited partnership
interests, as the case may be, owned by Borrower or other Subsidiaries. All of
the issued and outstanding shares of capital stock of such Subsidiaries which
are corporations have been duly authorized and issued and are fully paid and
non-assessable.
ARTICLE IV.
Conditions
SECTION 4.1 Effectiveness. This Agreement shall become effective upon the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Section 4.1.
(a) Resolutions and Officers Certificates. The Australian Administrative
Agent and the Global Administrative Agent shall have received from
Borrower a certificate, dated the Global Effective Date, of the
Secretary or Assistant Secretary of Borrower as to (i) resolutions
of its governing board, then in full force and effect
29
authorizing the execution, delivery and performance of this
Agreement and each other Loan Document to be executed by it; (ii)
the incumbency and signatures of those of its officers authorized to
act with respect to this Agreement and each other Loan Document
executed by it; and (iii) its articles of incorporation and bylaws;
upon which certificates each Lender may conclusively rely until it
shall have received a further certificate of an authorized officer
of Borrower canceling or amending such prior certificate.
(b) Existing Facilities. The Australian Administrative Agent and the
Global Administrative Agent shall have received a certificate,
signed by an Authorized Officer of Parent and each Borrower, stating
that either (i) Parent or its Subsidiaries have repaid in full and
terminated the Existing Global Credit Facilities concurrently with
the effectiveness of the Combined Credit Agreements or (ii) the
Existing Global Credit Facilities have been terminated in full prior
to the effectiveness of the Combined Credit Agreements.
(c) Opinions of Counsel. The Global Administrative Agent shall have
received opinions, dated the Global Effective Date, addressed to the
Australian Administrative Agent and the Global Administrative Agent,
the other Agents and all Lenders, from (i) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
counsel to Borrower, in substantially the form attached hereto as
Exhibit A, and (ii) ▇▇▇▇▇▇▇▇ & Knight LLP, U.S. counsel to Borrower,
in substantially the form attached hereto as Exhibit B.
(d) Closing Fees and Expenses. The Australian Administrative Agent shall
have received for its own account, or for the account of each Lender
and other Agent, as the case may be, all fees, costs and expenses
due and payable pursuant hereto.
(e) Financial Statements. The Australian Administrative Agent and the
Global Administrative Agent shall have received a certificate,
signed by an Authorized Officer of Borrower, stating that (i) the
audited consolidated financial statements of Parent and its
Subsidiaries for fiscal year 2004 and (ii) the report and
accompanying financial statements of Parent, Borrower and its
Subsidiaries for fiscal year 2004 (collectively, the "2004
Financials") fairly present Parent's and Borrower's consolidated
financial condition and results of operations and that prior to the
Global Effective Date no material adverse change in the condition or
operations of Parent or Borrower and its Subsidiaries, taken as a
whole, from that reflected in the 2004 Financials has occurred and
is continuing.
(f) Environmental Warranties. In the ordinary course of its business,
each Borrower conducts an ongoing review of the effect of existing
Environmental Laws on the business, operations and properties of
each Borrower and their Subsidiaries, in the course of which it
attempts to identify and evaluate associated liabilities and costs
(including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any
30
license, permit or contract, any related constraints on operating
activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of
operations conducted thereat and any actual or potential liabilities
to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Australian
Administrative Agent and the Global Administrative Agent shall have
received a certificate, signed by an Authorized Officer of each
Borrower, stating that after such review each Borrower has
reasonably concluded that existing Environmental Laws are unlikely
to have a Material Adverse Effect, or that each Borrower has
established adequate reserves in respect of any required clean-up.
(g) Global Effectiveness Notice. The Australian Administrative Agent and
the Global Administrative Agent shall have received the Global
Effectiveness Notice.
(h) Other Combined Credit Agreements. The Australian Administrative
Agent shall have received copies of the executed (i) U.S. Credit
Agreement and the other U.S. Loan Documents and (ii) Canadian Credit
Agreement and the other Canadian Loan Documents.
(i) Guaranty. The Australian Administrative Agent and the Global
Administrative Agent shall have received an executed Guaranty for
Borrower.
(j) Litigation. The Australian Administrative Agent and the Global
Administrative Agent shall have received a certificate, signed by an
Authorized Officer of Parent, stating that no litigation,
arbitration, governmental proceeding, Tax claim, dispute or
administrative or other proceeding shall be pending or, to the
knowledge of Parent, threatened against Parent or any of its
Subsidiaries which could reasonably be expected to have a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document.
(k) Other Documents. The Australian Administrative Agent and the Global
Administrative Agent shall have received such other instruments and
documents as any of the Agents or their counsel may have reasonably
requested.
The Australian Administrative Agent shall notify Borrower, the other Agents and
the Lenders of the Global Effective Date, and such notice shall be conclusive
and binding. Notwithstanding the foregoing, the obligations of the Lenders to
make Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00
p.m., New York, New York time, on May 31, 2005 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.2 All Loans. The obligation of each Lender to fund any Loan
which results in an increase in the aggregate outstanding principal amount of
Loans under this Agreement on the occasion of any Borrowing shall be subject to
the satisfaction of each of the conditions precedent set forth in this Section
4.2.
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(a) Compliance with Warranties and No Default. Both before and after
giving effect to any Borrowing, the following statements shall be
true and correct: (1) the representations and warranties set forth
in Article III shall be true and correct with the same effect as if
then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct as of such earlier date); and (b) no Default or Event of
Default shall have then occurred and be continuing.
(b) Borrowings. The Australian Administrative Agent shall have received
a Borrowing Request for any Borrowing.
ARTICLE V.
Affirmative Covenants
Until the Commitments have expired or been terminated and all Obligations
shall have been paid in full and unless the Required Lenders shall otherwise
consent in writing, Borrower covenants and agrees with the Lenders that:
SECTION 5.1 Financial Reporting and Notices. Borrower will furnish, will
cause to be furnished or will assist Parent in furnishing, to each Lender, the
Australian Administrative Agent and the Global Administrative Agent copies of
the following financial statements, reports, notices and information:
(a) within 90 days after the end of each Fiscal Year of Borrower, a copy
of the financial statements for Borrower and its Subsidiaries for
such fiscal year, including therein consolidated balance sheets of
Borrower and its Subsidiaries as of the end of such fiscal year and
consolidated statements of earnings and cash flow of Borrower and
its Subsidiaries for such fiscal year, all prepared in accordance
with GAAP in each case certified by an Authorized Officer of
Borrower, such signature deemed to be a certification that such
financial statements present fairly in accordance with GAAP the
financial position of Borrower and its Subsidiaries;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of Borrower commencing with the fiscal
quarter ending June 30, 2005, unaudited consolidated balance sheets
of Borrower and its Subsidiaries as of the end of such fiscal
quarter and consolidated statements of earnings and cash flow of
Borrower and its Subsidiaries for such fiscal quarter and for the
period commencing at the end of the previous fiscal year and ending
with the end of such fiscal quarter, all prepared in accordance with
GAAP certified by an Authorized Officer of Borrower, such signature
deemed to be a certification that such financial statements present
fairly in accordance with GAAP the financial position of Borrower
and its Subsidiaries;
(c) together with the financial statements described in (a) and (b)
above, a compliance certificate, in substantially the form of
Exhibit C or any other form
32
approved by the Australian Administrative Agent and the Global
Administrative Agent, executed by an Authorized Officer of Parent,
an Authorized Officer of Apache Energy Limited and an Authorized
Officer of any Additional Borrower;
(d) within five (5) days after the occurrence of each Default, a
statement of an Authorized Officer of Parent and an Authorized
Officer of Borrower setting forth details of such Default and the
action which Parent and Borrower have taken and propose to take with
respect thereto;
(e) promptly after the sending or filing thereof, copies of all material
public filings, reports and communications from Parent or Borrower,
and all reports and registration statements which Parent or Borrower
or any of their Subsidiaries files with the Securities and Exchange
Commission, any national securities exchange or any federal
securities regulatory body in Australia;
(f) such other information respecting the financial condition or
operations of Borrower or any of its Subsidiaries as any Lender
through the Australian Administrative Agent may from time to time
reasonably request.
SECTION 5.2 Compliance with Laws. Borrower will, and will cause each of
its Subsidiaries to, comply in all material respects with all applicable laws,
rules, regulations and orders where noncompliance therewith may reasonably be
expected to have a Material Adverse Effect, except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
SECTION 5.3 Maintenance of Properties. Borrower will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep valid title to, or
valid leasehold interest in, all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges or claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to Section 7.1
and except for imperfections and other burdens of title thereto as do not in the
aggregate materially detract from the value thereof or for the use thereof in
their businesses (taken as a whole).
SECTION 5.4 Insurance. Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies (subject to self-insured retentions) insurance with respect to its
properties and business against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses.
SECTION 5.5 Books and Records. Borrower will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions and permit the Australian Administrative Agent
or the Global Administrative Agent and the other Agents and each Lender through
the Australian Administrative Agent or the Global Administrative Agent or any of
their respective authorized representatives, during normal business hours and at
reasonable intervals, to visit all of its offices, to discuss its financial
matters with its officers and to examine (and, at the expense of the Australian
Administrative
33
Agent, the Global Administrative Agent or such other Agent or Lender or, if a
Default or Event of Default has occurred and is continuing, at the expense of
Borrower, photocopy extracts from) any of its books or other records.
SECTION 5.6 Use of Proceeds. Borrower will, and will cause each Subsidiary
to, use the proceeds of the Loans (i) to refinance existing Indebtedness of
Borrower and its Subsidiaries or (ii) for Borrower's and its Subsidiaries'
general corporate or partnership purposes, including any non-hostile
acquisitions.
SECTION 5.7 Borrowing Request. It is a condition precedent to the
operation of this Article V that Borrower has submitted a Borrowing Request to
the Australian Administrative Agent.
ARTICLE VI.
Financial Covenants
Until the Commitments have expired or been terminated and all Obligations
shall have been paid in full and unless the Required Lenders shall otherwise
consent in writing, Borrower covenants and agrees with the Lenders that:
SECTION 6.1 Ratio of Total Debt to Capital. Parent will not permit its
ratio (expressed as a percentage) of (i) the consolidated Debt of Parent and its
Subsidiaries to (ii) Capital to be greater than 60% at the end of any fiscal
quarter beginning with the fiscal quarter ending June 30, 2005.
ARTICLE VII.
Negative Covenants
Until the Commitments have expired or terminated and all Obligations have
been paid in full and unless the Required Lenders shall otherwise consent in
writing, Borrower covenants and agrees with the Lenders that:
SECTION 7.1 Liens. Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon the
stock, assets, or indebtedness of Borrower or any of its Subsidiaries to secure
Indebtedness of Borrower or any other Person except:
(i) Liens on any property or assets owned or leased by Borrower or any
Subsidiary existing at the time such property or asset was acquired
(or at the time such Person became a Subsidiary); provided that in
the case of the acquisition of a Subsidiary such Lien only encumbers
property or assets immediately prior to, or at the time of, the
acquisition by Borrower of such Subsidiary;
(ii) purchase money Liens so long as such Liens only encumber property or
assets acquired with the proceeds of the purchase money indebtedness
incurred in connection with such Lien;
34
(iii) Liens granted by an Unrestricted Subsidiary on its assets to secure
Indebtedness incurred by such Unrestricted Subsidiary;
(iv) Liens on assets of a Restricted Subsidiary securing Indebtedness of
a Restricted Subsidiary owing to Borrower, to Parent or to another
Restricted Subsidiary or Liens on assets of an Unrestricted
Subsidiary securing Indebtedness of an Unrestricted Subsidiary
owing to Borrower, to Parent, to a Restricted Subsidiary or to
another Unrestricted Subsidiary;
(v) Liens existing on the Global Effective Date set forth on Schedule
7.1;
(vi) Liens arising under operating agreements;
(vii) Liens reserved in oil, gas and/or mineral leases for bonus rental
payments and for compliance with the terms of such leases;
(viii) Liens pursuant to partnership agreements, oil, gas and/or mineral
leases, farm-out agreements, division orders, contracts for the
sale, delivery, purchase, exchange, or processing of oil, gas
and/or other hydrocarbons, unitization and pooling declarations and
agreements, operating agreements, development agreements, area of
mutual interest agreements, forward sales of oil, natural gas and
natural gas liquids, and other agreements which are customary in
the oil, gas and other mineral exploration, development and
production business and in the business of processing of gas and
gas condensate production for the extraction of products therefrom;
(ix) Liens on the stock or other ownership interests of or in any
Unrestricted Subsidiary;
(x) Liens for taxes, assessments or similar charges, incurred in the
ordinary course of business, that are not yet due and payable or
that are being contested as set forth in Section 3.6;
(xi) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation, or to participate in any
fund in connection with worker's compensation, unemployment
insurance, old-age pensions or other social security programs;
(xii) Liens imposed by mandatory provisions of law such as for
mechanics', materialmen's, warehousemen's, carriers', or other like
Liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable;
(xiii) Liens in renewal or extension of any of the foregoing permitted
Liens, so long as limited to the property or assets encumbered and
the amount of Indebtedness secured immediately prior to such
renewal or extension; and
35
(xiv) in addition to Liens permitted by clauses (i) through (xiii) above,
Liens on property or assets of Parent, Borrower and any of their
Subsidiaries if the aggregate Indebtedness of all such Persons
secured thereby does not exceed five percent (5%) of Parent's
Consolidated Assets; provided that nothing in this definition shall
in and of itself constitute or be deemed to constitute an agreement
or acknowledgment by the Global Administrative Agent, the Australian
Administrative Agent or any Lender that the Indebtedness subject to
or secured by any such Lien ranks (apart from the effect of any Lien
included in or inherent in any such Liens) in priority to the
Obligations.
SECTION 7.2 Mergers. Borrower will not liquidate or dissolve, amalgamate
with, consolidate with, or merge into or with, any other Person, or sell, lease
or otherwise transfer all or substantially all of its assets unless (a) Borrower
is the survivor of such amalgamation, merger or consolidation, and (b) no
Default or Event of Default has occurred and is continuing or would occur after
giving effect thereto.
SECTION 7.3 Asset Dispositions. Borrower will not, and will not permit any
of its Restricted Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to all
or substantially all of its assets. Notwithstanding the foregoing, nothing
herein shall prohibit any transfer of any assets from any Borrower to any
Subsidiary of such Borrower, from any Subsidiary of a Borrower to such Borrower
or from a Subsidiary of a Borrower to another Subsidiary of such Borrower.
SECTION 7.4 Transactions with Affiliates. Borrower will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist any arrangement or contract with any of its other Affiliates unless such
arrangement or contract or group of arrangements or contracts, as the case may
be, are conducted on an arms-length basis.
SECTION 7.5 Restrictive Agreements. Borrower will not, and will not permit
any of its Subsidiaries to, enter into any agreement (excluding this Agreement
or any other Loan Document) limiting the ability of Borrower to amend or
otherwise modify this Agreement or any other Loan Document. Borrower will not,
and will not permit any of its Restricted Subsidiaries to, enter into any
agreement which restricts or prohibits the ability of any Restricted Subsidiary
to make any payments, directly or indirectly, to Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Restricted Subsidiary to make any payment, directly or indirectly,
to Borrower.
SECTION 7.6 Guaranties. Parent and Borrower will not, and will not permit
any of their Restricted Subsidiaries to, guaranty any Indebtedness not included
in the consolidated Debt of Parent and its Subsidiaries in an aggregate
outstanding principal amount at any time exceeding $100,000,000.
36
ARTICLE VIII.
Events of Default
SECTION 8.1 Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default":
(a) Non-Payment of Obligations. Borrower shall default in the payment or
prepayment when due of any principal of any Loan, or Borrower shall
default (and such default shall continue unremedied for a period of
five (5) Business Days) in the payment when due of any interest, fee
or of any other obligation hereunder.
(b) Breach of Warranty. Any representation or warranty of Borrower made
or deemed to be made hereunder or in any other Loan Document or any
other writing or certificate furnished by or on behalf of Borrower
to the Global Administrative Agent, the Australian Administrative
Agent, any other Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document is or
shall be false or misleading when made in any material respect.
(c) Non-Performance of Covenants and Obligations. Borrower or Parent
shall default in the due performance and observance of any of its
obligations under Section 7.2 or under Article VI.
(d) Non-Performance of Other Covenants and Obligations. Borrower or
Parent shall default in the due performance and observance of any
other agreement contained herein or in any other Loan Document, and
such default shall continue unremedied for a period of 30 days after
notice thereof shall have been given to Borrower by the Global
Administrative Agent, the Australian Administrative Agent, or the
Required Lenders.
(e) Default on Other Indebtedness. A default shall occur in the payment
when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any direct payment obligation of
Parent, Borrower or any of their Restricted Subsidiaries in any
amount in excess of $100,000,000.
(f) [Intentionally omitted].
(g) Administration, Winding Up, Arrangements and Insolvency. Borrower or
any of its Restricted Subsidiaries shall (a) become or under
legislation is presumed or taken to be insolvent or generally fail
to pay, or admit in writing its inability or unwillingness to
generally pay, debts as they become due; (b) apply for, consent to,
or acquiesce in, the appointment of a trustee, receiver, receiver
and manager sequestrator, liquidator, provisional liquidator,
administrator or other custodian for Borrower, or any of its
Restricted Subsidiaries, or any substantial part of the property of
any thereof, or make a general assignment for the benefit of
creditors; (c) in the absence of such application, consent or
acquiescence, permit or suffer to
37
exist the appointment of an administrator, trustee, receiver,
receiver and manager, sequestrator, liquidator, provisional
liquidator, administrator or other custodian for Borrower, or any of
its Restricted Subsidiaries, or for a substantial part of the
property of any thereof, and such administrator, trustee, receiver,
receiver and manager sequestrator, liquidator, provisional
liquidator, administrator or other custodian shall not be discharged
within 60 days, provided that Borrower and each Restricted
Subsidiary hereby expressly authorizes the Global Administrative
Agent, the Australian Administrative Agent, each other Agent and
each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; (d) permit or suffer to exist
the commencement of any bankruptcy, insolvency, reorganization, debt
arrangement, compromise or composition with or assignment for the
benefit of its creditors or a class of them, or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up, administration or liquidation proceeding,
in respect of Borrower or any of its Restricted Subsidiaries, and,
if any such case or proceeding is not commenced by Borrower or such
Restricted Subsidiary, such case or proceeding shall be consented to
or acquiesced in by Borrower or such Restricted Subsidiary or shall
result in the entry of an order for relief or shall remain for 60
days undismissed or an investigation into all or part of the affairs
of Borrower under companies legislation, provided that Borrower and
each Restricted Subsidiary hereby expressly authorizes the Global
Administrative Agent, the Australian Administrative Agent, and each
Lender to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their
rights under the Loan Documents; or (e) take any corporate or
partnership action authorizing, or in furtherance of, any of the
foregoing.
(h) Judgments. Any judgment or order for the payment of money in an
amount of $100,000,000 or more in excess of valid and collectible
insurance in respect thereof or in excess of an indemnity with
respect thereto reasonably acceptable to the Required Lenders shall
be rendered against Parent, Borrower or any of their Restricted
Subsidiaries and either (a) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or (b) such
judgment shall have become final and non-appealable and shall have
remained outstanding for a period of 60 consecutive days.
(i) Change in Control. Parent fails to own or control, directly or
indirectly, all of the voting shares of Borrower.
(j) Event of Default under other Combined Loan Documents. Any "Event of
Default" as defined in the U.S. Loan Documents or the Canadian Loan
Documents shall occur; provided that the occurrence of a "Default"
as defined in the U.S. Loan Documents or the Canadian Loan Documents
shall constitute a Default under this Agreement; provided further
that if such "Default" is cured or waived under the U.S. Loan
Documents or the Canadian Loan Documents, as applicable, then such
"Default" shall no longer constitute a Default under this Agreement.
38
(k) Enforcement Against Assets. A receiver, receiver and manager or
similar officer is appointed to, Liens are enforced over or
distresses, attachments or other executions are levied or enforced
over all or any of the assets and undertaking of Borrower in excess
of $100,000,000 in the aggregate.
SECTION 8.2 Action if Administration, Winding Up, Arrangements and
Insolvency. If any Event of Default described in Section 8.1(g) shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
obligations hereunder shall automatically be and become immediately due and
payable, without notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 8.2) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Australian
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to Borrower declare all of the outstanding principal amount of the Loans
and all other obligations hereunder to be due and payable and the Commitments
(if not theretofore terminated) to be terminated, whereupon the full unpaid
amount of such Loans and other obligations shall be and become immediately due
and payable, without further notice, demand or presentment, and the Commitments
shall terminate.
ARTICLE IX.
Agents
Each of the Lenders hereby irrevocably appoints JPMorgan Chase Bank, N.A.
as Global Administrative Agent, Citisecurities Limited (ABN 51 ▇▇▇ ▇▇▇ ▇▇▇) as
Australian Administrative Agent, Deutsche Bank AG, Sydney Branch (ABN 13 064 165
162) and JPMorgan Chase Bank (ARBN 074 112 011) as Australian Co-Syndication
Agents, and Bank of America, N.A., Sydney Branch (ARBN 064 874 531) and UBS AG,
Australia Branch (ABN 47 ▇▇▇ ▇▇▇ ▇▇▇) as Australian Co-Documentation Agents, and
authorizes each such Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Agent by the terms hereof, together with
such actions and powers as are reasonably incidental thereto.
Any bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
The Agents shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the
Agents shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) each Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that such Agent is required to exercise in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as expressly set
forth herein, each Agent shall not have any duty to
39
disclose, and shall not be liable for the failure to disclose, any information
relating to Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as such Agent or any of its Affiliates in any
capacity. Each Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. Each Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to such Agent by
Borrower or a Lender, and such Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to such Agent. None of the Persons identified
on the facing page of this Agreement as the "Co-Lead Arrangers and Joint
Bookrunners" (the "Arrangers"), the Australian Co-Documentation Agents or the
Australian Co-Syndication Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Combined
Loan Document other than, except in the case of the Arrangers, those applicable
to all Lenders as such.
The Australian Administrative Agent, the Global Administrative Agent and
the other Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Australian
Administrative Agent, the Global Administrative Agent and the other Agents also
may rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person, and shall not incur any liability for relying
thereon. The Australian Administrative Agent, the Global Administrative Agent
and the other Agents may consult with legal counsel (who may be counsel for
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Any Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by such Agent. Any
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of such Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as an Agent.
Subject to the appointment and acceptance of a successor Global
Administrative Agent or Australian Administrative Agent as provided in this
paragraph, the Global Administrative Agent or the Australian Administrative
Agent may resign at any time by notifying the Lenders and Borrower. Upon any
such resignation, Borrower shall have the right, in consultation with the
Combined Required Lenders, to appoint one of the Lenders as a successor. If no
successor shall have been so appointed by Borrower and shall have accepted such
appointment within 30 days
40
after the retiring Global Administrative Agent or Australian Administrative
Agent gives notice of its resignation, then the retiring Global Administrative
Agent or Australian Administrative Agent may, on behalf of the Lenders, appoint
a successor Global Administrative Agent or Australian Administrative Agent which
shall be a bank with an office in New York, New York, or Sydney, Australia,
respectively, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Global Administrative Agent or Australian Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Global
Administrative Agent or Australian Administrative Agent, and the retiring Global
Administrative Agent or Australian Administrative Agent shall be discharged from
its duties and obligations hereunder. The fees payable by Borrower to a
successor Global Administrative Agent or Australian Administrative Agent shall
be the same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After the Global Administrative Agent's or
Australian Administrative Agent's resignation hereunder, the provisions of this
Article and Section 10.3 shall continue in effect for the benefit of such
retiring Global Administrative Agent or Australian 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 Global
Administrative Agent or Australian Administrative Agent, respectively.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
ARTICLE X.
Miscellaneous
SECTION 10.1 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 Borrower, to:
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President and Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
41
with a copy to:
Assistant Treasurer
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with copy to:
Vice President and General Counsel
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Global Administrative Agent, to:
JPMorgan Chase Bank, N.A.
Loan & Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇]
with a copy to:
JPMorgan Chase Bank, N.A.
600 ▇▇▇▇▇▇, 20 CTH 86
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to the Australian Administrative Agent, to:
Citisecurities Limited (ABN 51 ▇▇▇ ▇▇▇ ▇▇▇)
▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.▇.▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: Agency/▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇/2455 (direct lines)
42
Switch No: 61 2 8225 1000
Facsimile: 61 2 8225 5244
with a copy to:
Citicorp International Limited
13/F., Two Harbourfront
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ ▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
E-mail: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇/42
Facsimile: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇/4
(d) if to any other Lender, to it at its address (or telecopy number)
provided to the Global Administrative Agent, the Australian Administrative Agent
and Borrower or as 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. All
of the parties hereto agree that the Australian Administrative Agent may
communicate ordinary course notices and communications to the Lenders and other
parties hereto by e-mail or other similar electronic means if the Australian
Administrative Agent, in its reasonable discretion, believes that such
communication method would be the most efficient method of distribution.
SECTION 10.2 Waivers; Amendments.
(a) No failure or delay by the Global Administrative Agent, the Australian
Administrative Agent or any Lender in exercising any right or power hereunder
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 Global
Administrative Agent, the Australian Administrative Agent and the Lenders
hereunder 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 any
other Loan Document or consent to any departure by 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, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Global Administrative Agent,
the Australian Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
43
(b) Any of the Combined Loan Documents or any provision thereof may be
waived, amended or modified pursuant to an agreement or agreements in writing
entered into by Borrower and the Combined Required Lenders or by Borrower and
the Global Administrative Agent and the Australian Administrative Agent with the
consent of the Combined Required Lenders; provided that the same waiver,
amendment or modification is requested by Parent in connection with each of the
Combined Credit Agreements; and provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of (i) the Lenders
described in the first proviso of Section 10.2(c) without the prior written
consent of each Lender affected thereby and (ii) the Global Administrative Agent
or the Australian Administrative Agent without the prior written consent of the
Global Administrative Agent or the Australian Administrative Agent,
respectively.
(c) Except as provided for in Section 10.2(b) above, neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by Borrower and the Required Lenders or by Borrower and the
Global Administrative Agent and the Australian Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender or the Commitments without the written
consent of such Lender or each Lender, respectively, (ii) reduce the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, 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 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, or (v) change any of the provisions of this Section or
the definition of "Required Lenders", "Combined Required Lenders" or any other
provision hereof or thereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or thereunder or make
any determination or grant any consent hereunder or thereunder, 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 Global
Administrative Agent or the Australian Administrative Agent hereunder or
thereunder without the prior written consent of the Global Administrative Agent
or the Australian Administrative Agent, respectively.
SECTION 10.3 Expenses; Indemnity; Damage Waiver.
(a) Borrower shall pay (i) all reasonable out-of-pocket expenses incurred
by the Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Agents or any Lender, including the fees, charges and disbursements of any
counsel for the Agents or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made
44
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or this
Agreement.
(b) Borrower shall indemnify the Agents and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee"), WHETHER OR NOT RELATED TO ANY NEGLIGENCE OF THE INDEMNITEE,
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel (or a solicitor and his own client
basis) 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 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 actual or proposed 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 Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, 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 brought by a third party or by the
Borrower 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 (i) resulted
from the gross negligence or willful misconduct of such Indemnitee or (ii) arise
in connection with any issue in litigation commenced by Borrower or any of its
Subsidiaries against any Indemnitee for which a final judgment is entered in
favor of Borrower or any of its Subsidiaries against such Indemnitee.
(c) To the extent that Borrower fails to pay any amount required to be
paid by it to the Global Administrative Agent or the Australian Administrative
Agent under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Global Administrative Agent or the Australian 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 Global Administrative Agent or the Australian
Administrative Agent, respectively.
(d) To the extent permitted by applicable law, Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions
or any Loan or the use of the proceeds thereof, except for any such claim
arising from such Indemnitee's gross negligence or willful misconduct.
(e) All amounts due under this Section shall be payable not later than
thirty (30) days after written demand therefor.
45
SECTION 10.4 Successors and Transferees.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
transferees permitted hereby, except that Borrower may not transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted transfer by Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and transferees permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Global Administrative
Agent, the Australian Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may transfer to one or more bank or other entities which
are residents in Australia for purposes of the Income Tax Assessment ▇▇▇ ▇▇▇▇
(Cth) ("Substituting Lender") all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it); provided that (i) except in the case of a transfer to
a Lender or an Affiliate of a Lender, each of Borrower, the Australian
Administrative Agent and the Global Administrative Agent must give their prior
written consent to such transfer (which consent shall not be unreasonably
withheld), (ii) except in the case of a transfer to a Lender or an Affiliate of
a Lender or a transfer of the entire remaining amount of the transferring
Lender's Commitment, the amount of the Commitment of the transferring Lender
subject to each such transfer (determined as of the date the Substitution
Certificate with respect to such transfer is delivered to the Australian
Administrative Agent and the Global Administrative Agent) shall be in increments
of $1,000,000 and not less than $10,000,000 unless each of Borrower, the
Australian Administrative Agent and the Global Administrative Agent otherwise
consent, (iii) each partial transfer shall be made as a transfer of a
proportionate part of all the transferring Lender's rights and obligations under
this Agreement, (iv) the parties to each transfer shall execute and deliver to
the Australian Administrative Agent and the Global Administrative Agent a
Substitution Certificate, together with a processing and recordation fee of
$3,500 to the Australian Administrative Agent, and (v) the Substituting Lender,
if it shall not be a Lender, shall deliver to the Australian Administrative
Agent and the Global Administrative Agent an Administrative Questionnaire; and
provided further that any consent of Borrower otherwise required under this
paragraph shall not be required if an Event of Default under Section 8.1 has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Substitution Certificate the Substituting Lender thereunder shall be a
party hereto and, to the extent of the interest transferred by such Substitution
Certificate, have the rights and obligations of a Lender under this Agreement,
and the transferring Lender thereunder shall, to the extent of the interest
transferred by such Substitution Certificate, be released from its obligations
under this Agreement (and, in the case of a Substitution Certificate covering
all of the transferring 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 Sections 2.14, 2.15, 2.16, 2.17, 2.19 and 10.3). Any transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph 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 (e) of this Section.
46
(c) The Australian Administrative Agent and the Global Administrative
Agent, acting for this purpose as an agent of Borrower, shall maintain at one of
its offices in Sydney, Australia, and The City of New York, respectively, a copy
of each Substitution Certificate 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
conclusive, and Borrower, the Australian Administrative Agent, the Global
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 Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Substitution Certificate executed
by an transferring Lender and a Substituting Lender, the Substituting Lender's
completed Administrative Questionnaire (unless the Substituting Lender shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such transfer
required by paragraph (b) of this Section, the Australian Administrative Agent
and the Global Administrative Agent shall accept such Substitution Certificate
and record the information contained therein in the Register and will provide
prompt written notice to Borrower of the effectiveness of such Substitution
Certificate. No transfer shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of Borrower, the Australian
Administrative Agent or the Global Administrative Agent, sell participations to
one or more banks or other entities which are resident in Australia for purposes
of the Income Tax Assessment Act 1936 (Cth) (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 (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) Borrower, the Australian Administrative
Agent, the Global Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and (iv) if such Participant is not
a Lender or an Affiliate of a Lender, such Lender shall have given notice to
Borrower of the name of the Participant and the amount of such participation.
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 10.2(c) that affects such Participant. Subject to paragraph (f) of this
Section, Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and
had acquired its interest by transfer pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.8 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.17(c) as though it were a Lender. Any stamp
duty payable on or in respect of such a sale which does not occur during the
continuation of a Default shall be paid by the Participant.
47
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14, 2.15 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless Borrower shall expressly agree otherwise in writing. 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 Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of Borrower, to
comply with Section 2.16(e) as though it were a Lender.
SECTION 10.5 Survival. All covenants, agreements, representations and
warranties made by 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 Australian Administrative Agent, the Global
Administrative Agent or any Lender may have had notice or knowledge of any
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 fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16, 2.17, 2.19 and 10.3 and Article IX shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.6 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 and any
separate letter agreements with respect to fees payable to the Australian
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 4.1, this Agreement shall become effective when it shall
have been executed by the Australian Administrative Agent and the Global
Administrative Agent and when the Australian Administrative Agent and the Global
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 10.7 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 10.8 Right of Setoff. If an Event of Default shall have occurred
and be continuing and the Obligations of Borrower shall have been accelerated,
each Lender and each of
48
its Affiliates 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 or Affiliate to or for the
credit or the account of any Borrower against any of and all the obligations of
each 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 other rights of setoff) which such Lender may have.
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW SOUTH WALES AND OF AUSTRALIA APPLICABLE THEREIN.
(b) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW SOUTH WALES, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, 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 COURTS OF THE STATE OF NEW SOUTH
WALES. 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 SHALL AFFECT ANY RIGHT THAT THE AGENTS OR ANY LENDER
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
AGAINST BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN THE FIRST
SENTENCE OF PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
49
(d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW SOUTH WALES. 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 10.10 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.
SECTION 10.11 Confidentiality. Each of the Agents and the Lenders agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory or self-regulatory authority, (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, (g) with the consent of Borrower or
(h) to the extent such Information (A) becomes publicly available other than as
a result of a breach of this Section by any Person or (B) becomes available to
any Agent or any Lender on a non-confidential basis from a source other than
Borrower or any Person obligated to maintain the confidentiality of such
Information. Prior to disclosing any Information under clause (c) above, the
Agent or Lender required or asked to make such disclosure shall make a good
faith effort to give Borrower prior notice of such proposed disclosure to permit
Borrower to attempt to obtain a protective order or other appropriate injunctive
relief. For the purposes of this Section, "Information" means all information
received from Borrower relating to Borrower or its business, other than any
publicly available information and such information that is available to any
Agent or any Lender on a non-confidential basis prior to disclosure by Borrower;
provided that, in the case of information received from 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 10.12 Interest Rate Limitation. It is the intention of the parties
hereto to conform strictly to applicable interest, usury and criminal laws and,
anything herein to the contrary notwithstanding, the obligations of Borrower to
a Lender or any Agent under this Agreement shall be subject to the limitation
that payments of interest shall not be required to the extent that receipt
thereof would be contrary to provisions of law applicable to such Lender or
Agent limiting rates of interest which may be charged or collected by such
Lender or Agent. Accordingly, if the transactions contemplated hereby would be
illegal, unenforceable, usurious or criminal under laws applicable to a Lender
or Agent (including the laws of any jurisdiction
50
whose laws may be mandatorily applicable to such Lender or Agent notwithstanding
anything to the contrary in this Agreement or any other Loan Document but
subject to Section 2.12 hereof) then, in that event, notwithstanding anything to
the contrary in this Agreement or any other Loan Document, it is agreed as
follows:
(i) the provisions of this Section shall govern and control;
(ii) the aggregate of all consideration which constitutes interest
under applicable law that is contracted for, taken, reserved, charged or
received under this Agreement, or under any of the other aforesaid
agreements or otherwise in connection with this Agreement by such Lender
or Agent shall under no circumstances exceed the maximum amount of
interest allowed by applicable law (such maximum lawful interest rate, if
any, with respect to each Lender and the Agent herein called the "Highest
Lawful Rate"), and any excess shall be cancelled automatically and if
theretofore paid shall be credited to Borrower by such Lender or Agent
(or, if such consideration shall have been paid in full, such excess
refunded to Borrower);
(iii) all sums paid, or agreed to be paid, to such Lender or Agent
for the use, forbearance and detention of the indebtedness of Borrower to
such Lender or Agent hereunder or under any Loan Document shall, to the
extent permitted by laws applicable to such Lender or Agent, as the case
may be, be amortized, prorated, allocated and spread throughout the full
term of such indebtedness until payment in full so that the actual rate of
interest is uniform throughout the full term thereof;
(iv) if at any time the interest provided pursuant to this Section
or any other clause of this Agreement or any other Loan Document, together
with any other fees or compensation payable pursuant to this Agreement or
any other Loan Document and deemed interest under laws applicable to such
Lender or Agent, exceeds that amount which would have accrued at the
Highest Lawful Rate, the amount of interest and any such fees or
compensation to accrue to such Lender or Agent pursuant to this Agreement
shall be limited, notwithstanding anything to the contrary in this
Agreement or any other Loan Document, to that amount which would have
accrued at the Highest Lawful Rate, but any subsequent reductions, as
applicable, shall not reduce the interest to accrue to such Lender or
Agent pursuant to this Agreement below the Highest Lawful Rate until the
total amount of interest accrued pursuant to this Agreement or such other
Loan Document, as the case may be, and such fees or compensation deemed to
be interest equals the amount of interest which would have accrued to such
Lender or Agent if a varying rate per annum equal to the interest provided
pursuant to any other relevant Section hereof (other than this Section),
as applicable, had at all times been in effect, plus the amount of fees
which would have been received but for the effect of this Section; and
(v) with the intent that the rate of interest herein shall at all
times be lawful, and if the receipt of any funds owing hereunder or under
any other agreement related hereto (including any of the other Loan
Documents) by such Lender or Agent would cause such Lender to charge
Borrower a criminal rate of interest, the Lenders and the Agents agree
that they will not require the payment or receipt thereof or a portion
thereof which would cause a criminal rate of interest to be charged by
such Lender or Agent, as
51
applicable, and if received such affected Lender or Agent will return such
funds to Borrower so that the rate of interest paid by Borrower shall not
exceed a criminal rate of interest from the date this Agreement was
entered into.
SECTION 10.13 Joint and Several Obligations. Each Borrower has determined
that it is in its best interest and in pursuance of its legitimate business
purposes to induce the Lenders to extend credit to the Borrowers pursuant to
this Agreement. Each Borrower acknowledges and represents that the availability
of the Commitments to each of the Borrowers benefits each Borrower individually
and that the Loans made will be for and inure to the benefit of each of the
Borrowers individually and as a group. Accordingly, each Borrower shall be
jointly and severally liable (as a principal and not as a surety, guarantor or
other accommodation party) for each and every representation, warranty, covenant
and obligation to be performed by the Borrowers under this Agreement and the
other Loan Documents, and each Borrower acknowledges that in extending the
credit provided herein the Agent and the Lenders are relying upon the fact that
the Obligations of each Borrower hereunder are the joint and several obligations
of a principal. The invalidity, unenforceability or illegality of this Agreement
or any other Loan Document as to one Borrower or the release by the Agent or the
Lenders of a Borrower hereunder or thereunder shall not affect the Obligations
of the other Borrowers under this Agreement or the other Loan Documents, all of
which shall otherwise remain valid and legally binding obligations of the other
Borrowers.
SECTION 10.14 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
APACHE ENERGY LIMITED (ACN 009 301 964)
By: _____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A., as Global
Administrative Agent
By: _____________________________________
Name:
Title:
CITISECURITIES LIMITED (ABN 51 008 489
610), as Australian Administrative Agent
By: _____________________________________
Name:
Title:
DEUTSCHE BANK AG, SYDNEY BRANCH (ABN 13
064 165 162), as an Australian
Co-Syndication Agent and as Lender
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
[SIGNATURE PAGE TO AUSTRALIAN CREDIT AGREEMENT]
S-1
JPMORGAN CHASE BANK (ARBN 074 112 011), as
an Australian Co-Syndication Agent and as
Lender
By: _____________________________________
Name:
Title:
BANK OF AMERICA, N.A., SYDNEY BRANCH (ARBN
064 874 531), as an Australian
Co-Documentation Agent and as Lender
By: _____________________________________
Name:
Title:
UBS AG, AUSTRALIA BRANCH (ABN 47 088 129
613), as an Australian Co-Documentation
Agent and as Lender
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
CITIBANK, N.A. (ARBN 072 814 058)], as
Lender
By: _____________________________________
Name:
Title:
[SIGNATURE PAGE TO AUSTRALIAN CREDIT AGREEMENT]
S-2
BARCLAYS BANK PLC, AUSTRALIAN BRANCH (ABN
86062 449 585), as Lender
By: _____________________________________
Name:
Title:
[SIGNATURE PAGE TO AUSTRALIAN CREDIT AGREEMENT]
S-3