Exhibit 99.3
_____ __, 2003
EXCHANGE AGENT AGREEMENT
JPMorgan Chase Bank
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Ladies and Gentlemen:
Apache Finance Canada Corporation, an unlimited liability company
organized under the laws of the Province of Nova Scotia (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $350,000,000
aggregate principal amount of its 4.375% Notes due 2015, fully and
unconditionally guaranteed by Apache Corporation ("Apache"), a Delaware
corporation (the "New Notes"), for a like principal amount of its outstanding
4.375% Notes Due 2015, fully and unconditionally guaranteed by Apache (the "Old
Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus (the "Prospectus" included in the
registration statement of the Company and Apache on Form S-4 (File No.
333-____), [as amended (the "Registration Statement"))] filed with the
Securities and Exchange Commission (the "SEC"), and proposed to be distributed
to all record holders of the Old Notes who acquired such Old Notes pursuant to
an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Securities Act"). The Old Notes and the New Notes are
collectively referred to herein as the "Notes" or the "Securities." Capitalized
terms used herein and not defined shall have the respective meanings ascribed to
them in the Prospectus or the accompanying Letter of Transmittal (as defined
below).
The Company hereby appoints JPMorgan Chase Bank to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to JPMorgan Chase Bank.
The Exchange Offer is expected to be commenced by the Company on or about
_____ __, 2003, after the Registration Statement filed by the Company is
declared effective under the Securities Act (the "Effective Time"), which shall
be on or about _____ __, 2003. The letter of transmittal ("Letter of
Transmittal") accompanying the Prospectus is to be used by the holders of the
Old Notes to accept the Exchange Offer, and contains instructions with respect
to the delivery of Old Notes tendered. The Exchange Agent's obligations with
respect to receipt and inspection of the Letter of Transmittal in connection
with the Exchange Offer shall be satisfied for all purposes hereof by inspection
of the electronic message transmitted to the Exchange Agent by Exchange Offer
participants in accordance with the Automated Tender Offer Program ("ATOP") of
the Depositary Trust Company ("DTC"), and by otherwise observing and complying
with all
procedures established by DTC in connection with ATOP, to the extent that ATOP
is utilized by Exchange Offer participants.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on _____
__, 2003 or on such later date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (confirmed in writing) or written notice to you at any time before 9:00
a.m., New York City time, on the business day following the previously scheduled
Expiration Date, and in such case the term "Expiration Date" shall mean the time
and date on which such Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole discretion, to
delay, amend or terminate the Exchange Offer, and not to accept for exchange any
Old Notes not theretofore accepted for exchange upon the occurrence of certain
events, including any of the conditions of the Exchange Offer specified in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer." The Company will give to you as promptly as practicable oral (confirmed
in writing) or written notice of any delay, amendment, termination or
non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the Prospectus captioned "The
Exchange Offer", or in the Letter of Transmittal accompanying the Prospectus and
such duties which are necessarily incidental thereto; provided however, that in
no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book-entry account with respect to the Old
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Exchange Agent Agreement, and any financial institution that is a participant in
the Book-Entry Transfer Facility's systems may make book-entry delivery of the
Old Notes by causing the Book-Entry Transfer Facility to transfer such Old Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. As soon as practicable after receipt, you are to examine each of the
Letters of Transmittal and certificates for Old Notes (or confirmation of
book-entry transfers into your account at the Book-Entry Transfer Facility) and
any other documents delivered or mailed to you by or for holders of the Old
Notes in connection with tenders of Old Notes, to ascertain whether: (i) the
Letters of Transmittal, certificates and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and in the Prospectus and that such book-entry confirmations are in due
and proper form and contain the information required to be set forth therein,
and (ii) the Old Notes have otherwise been properly tendered in
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accordance with the Prospectus and the Letter of Transmittal. In each case where
(i) the Letter of Transmittal or any other document has been improperly
completed or executed, (ii) book-entry confirmations are not in due and proper
form or omit certain information or (iii) any of the certificates for Old Notes
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to be
corrected. If such condition is not promptly remedied by the presenters, you
shall report such condition to the Company and await its direction. All
questions as to the validity, form, eligibility (including timelines of
receipt), acceptance and withdrawal of any Old Notes tendered or delivered by
the Company shall be determined by the Company, in its sole discretion.
4. With the approval of any of the Chief Executive Officer, Chief
Financial Officer or Secretary of the Company (such approval, if given orally,
promptly to be confirmed in writing) or any other party designated by such
officer in writing, you are authorized to waive any irregularities in connection
with any tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange Offer
-- Procedures for Tendering Old Notes" and Old Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein. Notwithstanding the provisions of this paragraph 5, Old Notes
which the Chief Executive Officer, Chief Financial Officer or the Secretary of
the Company or any other party designated by any such officer in writing shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, promptly shall be confirmed in
writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. The Company reserves the absolute right (i) to reject any or all
tenders of any particular Old Notes determined by the Company not to be in
proper form or the acceptance or exchange of which may, in the opinion of the
Company's counsel, be unlawful and (ii) to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the tender of any particular Old
Notes, and the Company's determination of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and Notice of Guaranteed
Delivery and the instructions set forth therein) will be final and binding.
8. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
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(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including (i) any endorsement of
the Old Note or delivery of a properly completed bond power, in either case duly
executed by each registered holder, (ii) payment of applicable transfer taxes,
and (iii) the requirements imposed by the transfer restrictions on the Old Notes
(including any applicable requirements for certifications, legal opinion or
other information) are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the transfer agent for the Old Notes for split-up and return any untendered
Old Notes to the holder (or such other person as may be designated in the Letter
of Transmittal) as promptly as practicable after expiration or termination of
the Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, promptly to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will exchange
such Old Notes for New Notes and cause such Old Notes to be canceled. Delivery
of New Notes will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the Old Notes
tendered promptly after notice (such notice if given orally, promptly to be
confirmed in writing) of acceptance of said Old Notes by the Company; provided,
however, that in all cases, Old Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such Old
Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof or an Agent's Message in lieu thereof) with
any required signature guarantees and any other required document. Unless
otherwise instructed in writing by the Company, you shall issue New Notes only
in denominations of $1,000 or any integral multiple thereof.
10. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to 5:00 p.m., New York City time, on the
Expiration Date in accordance with the terms of the Exchange Offer. You shall,
after proper notification of such withdrawal, return such Old Notes to, or in
accordance with the instructions of, the holder of such Old Notes and such Old
Notes shall no longer be considered properly tendered. Any withdrawn Old Notes
may be tendered again following procedures therefore described in the Prospectus
at any time on or prior to the Expiration Date.
11. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the
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Company not to exchange any Old Notes tendered shall be given (such notices if
given orally, promptly shall be confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Conditions to the Exchange Offer"or otherwise, you shall
as soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Old Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them (or effected such book-entry transfer).
13. All certificates for reissued Old Notes, unaccepted Old Notes or New
Notes (other than those effected by book-entry transfer) shall be forwarded by
(a) first-class mail, postage pre-paid under a blanket surety bond protecting
you and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of each of such certificates.
14. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any persons to solicit tenders.
15. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the Old Notes deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(b) shall not take any legal action hereunder against any third
party, other than the Company, without the prior written consent of the Company,
and shall not be obligated to take any legal action hereunder which might in
your reasonable judgment involve any expense or liability, unless you shall have
been furnished with reasonable indemnity against such expense or liability;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result of
the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may reasonably rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
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(d) in connection with the administration of your duties hereunder
and in the absence of negligence, misconduct or bad faith on your part, may
reasonably rely upon any tender, statement, request, comment, agreement or other
instrument whatsoever, not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith reasonably believe
to be genuine or to have been signed or represented by a proper person or
persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions from any officer of the Company authorized to
provide instructions under this Agreement;
(f) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering all or any
portion of the Old Notes or as to the market value, decline or appreciation in
market value of any Old Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the Exchange Notes and shall not
solicit any holder of Old Notes for the purpose of causing such person to tender
its Old Notes;
(g) may consult with counsel with respect to any questions
relating to your duties and responsibilities, and the written advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in reliance thereon; and
(h) in the absence of negligence, willful misconduct or bad faith
on your part, shall in no event be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if you have been advised of the likelihood of such loss or damage
and regardless of the form of action.
16. As soon as practicable after your receipt of notification from the
Company as to the Effective Time, you shall send to all holders of Old Notes a
copy of the Prospectus, the Letter of Transmittal (including instructions for
completing a substitute Form W-9), the notice of guaranteed delivery (as
described in the Prospectus) and such other documents (collectively, the
"Exchange Offer Documents") as may be furnished by the Company to commence the
Exchange Offer and take such other action as may from time to time be requested
by the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of Old
Notes and to all persons reasonably requesting such documents and to accept and
comply with telephone and mail requests for information relating to the Exchange
Offer, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company will furnish you
with copies of such documents to enable you to perform your duties hereunder.
All other requests for information relating to the Exchange Offer shall be
directed to the Company, Attention: ________________________ (___) ___ ____.
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17. You shall advise, by facsimile transmission or telephone, and
promptly thereafter confirm in writing, to ________________ (at the facsimile
number _____________), and such other person or persons as the Company may
request, daily, and more frequently during the week immediately preceding the
Expiration Date and if otherwise requested by the Company, up to and including
the Expiration Date, as to the aggregate principal amount of Old Notes which
have been tendered pursuant to the Exchange Offer and the items received by you
pursuant to the Exchange Offer and this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons as the Company requests in
writing from time to time prior to the Expiration Date of such other information
as it or he or she reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company and such person as the Company
may request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration
Date the Company shall have received information in sufficient detail to enable
it to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal amount
of Old Notes tendered, the aggregate principal amount of Old Notes accepted and
the identity of any participating Broker-Dealers and the aggregate principal
amount of Exchange Notes delivered to each, and deliver said list to the Company
promptly after the deadline for the Exchange Offer or the Expiration Date.
18. Each Letter of Transmittal, Old Note and any other document received
by you in connection with the Exchange Offer shall be stamped by you as to the
date and the time of receipt thereof (or if Old Notes are tendered by book-entry
delivery, such form of record keeping of receipt as is customary for tenders
through ATOP) and, if defective, the date and time the last defect was cured or
waived by the Company. You shall retain all Old Notes and Letters of Transmittal
and other related documents or correspondence received by you until the
Expiration date. You shall return all such material to the Company as soon as
practicable after the Expiration Date. You shall dispose of unused Letters of
Transmittal and other surplus materials in accordance with your customary
procedures.
19. It is understood and agreed that the securities, money or property
to be deposited with or received by you as Exchange Agent (the "Property")
constitute a special, segregated account held solely for the benefit of the
Company and the tendering holders of Old Notes, as their interests may appear,
and the Property shall not be commingled with the money, assets or properties of
you or of any other person, firm or corporation. You hereby waive any and all
rights of lien, encumbrance, attachment or right of set-off whatsoever, if any,
that you may have with respect to the Property so deposited, whether such rights
arise by reason of applicable law, contract or otherwise.
20. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses in
accordance with Schedule I hereto.
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21. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the Prospectus, the
Letter of Transmittal and such other forms, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
22. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees and expenses, arising out of or in
connection with your appointment as Exchange Agent and the performance of your
duties hereunder, including, without limitation, any act, omission, delay or
refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Notes reasonably
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old Notes; provided,
however, that the Company shall not be liable for indemnification or otherwise
for any loss, liability, cost or expense to the extent arising out of your gross
negligence, willful misconduct or bad faith. In no case shall the Company be
liable under this indemnity with respect to any action, proceeding, suit or
claim against you unless the Company shall be notified by you, by letter or
facsimile transmission confirmed by letter, of the written assertion of any
action, proceeding, suit or claim made or commenced against you promptly after
you shall have been served with the summons or other first legal process or have
received the first written assertion, giving information as to the nature and
basis of the action, proceeding, suit or claim. The Company shall be entitled to
participate at its own expense in the defense of any such action, proceeding,
suit or claim and if the Company so elects, assume defense of such action,
proceeding, suit or claim. In the event that the Company assumes such defense,
the Company shall not thereafter be liable for the fees and expenses of any
additional counsel that you retain. You agree that, without the prior written
consent of the Company (which consent shall not be unreasonably withheld), you
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification provision
of this Agreement (whether or not you are an actual or potential party to such
claim, action or proceeding). Under no circumstances shall the Company be liable
for the costs and expenses of any settlement of any action, proceeding, suit or
claim effected by you without the prior written consent of the Company.
23. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required, in certain instances, to
backup withhold at the applicable rate with respect to interest paid on the
Exchange Notes and proceeds from the sale, exchange, redemption or retirement of
the Exchange Notes from holders who have not supplied their correct Taxpayer
Identification Numbers or required certification. Such funds will be turned over
to the Internal Revenue Service in accordance with applicable regulations.
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24. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and shall deliver or cause to be
delivered, in a timely manner, to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old Notes your check in
the amount of all transfer taxes so payable, and, subject to the provisions of
Section 8(c) of this Agreement, the Company shall reimburse you for the amount
of any and all transfer taxes payable in respect of the exchange of Old Notes;
provided however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
25. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and permitted assigns of each of the parties hereto and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Without limitation of the foregoing, the parties
hereto expressly agree that no holder of Old Notes or Exchange Notes shall have
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
26. The Company and you hereby submit to the exclusive jurisdictions of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
27. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
28. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
29. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
30. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company:
Apache Finance Canada Corporation (
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Telephone: (___) ___ -____
Facsimile: (___) ___ ____
Attention: [_______].
With a copy to:
If to the Exchange Agent:
JPMorgan Chase Bank
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Institutional Trust Services
31. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 19 and 22 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Notes, funds or property (including, without
limitation, Letters of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
32. You may resign from your duties under this Agreement by giving to
the Company thirty days' prior written notice. If you resign or become incapable
of acting as Exchange Agent and the Company fails to appoint a new exchange
agent within a period of thirty days after it has been notified in writing of
such resignation or incapacity by you, the Company shall appoint a successor
exchange agent or assume all of the duties and responsibilities of the Exchange
Agent. Any successor exchange agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Exchange Agent without any further act or deed; but you shall deliver and
transfer to the successor exchange agent any Property at the time held by you
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for such purpose.
33. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
APACHE FINANCE CANADA CORPORATION
By:______________________________
Name:
Title:
Accepted as of the date
first above written:
JPMORGAN CHASE BANK
By:_________________________
Name:
Title:
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SCHEDULE 1
APACHE FINANCE CANADA CORPORATION
EXCHANGE AGENCY
FEE SCHEDULE
Flat Fee............................................................. $[_____]
Out-Of-Pocket Expenses
Fees quoted do not include out-of-pocket expenses including, but not
limited to, reasonable legal fees and expenses, facsimile, stationary, postage,
telephone, overnight courier and messenger costs, all of which shall be paid by
the Company.