Exhibit 10.1
[U.S. CREDIT AGREEMENT]
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CREDIT AGREEMENT
dated as of May 12, 2005
among
APACHE CORPORATION,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Global Administrative Agent,
BANK OF AMERICA, N.A.
and
CITIBANK, N.A,
as U.S. Co-Syndication Agents,
and
CALYON NEW YORK BRANCH
and
SOCIETE GENERALE,
as U.S. Co-Documentation Agents
-----------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., and
BANC OF AMERICA SECURITIES, LLC,
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 Classification of Loans and Borrowings....................................... 15
SECTION 1.3 Terms Generally.............................................................. 15
SECTION 1.4 Accounting Terms; GAAP....................................................... 16
ARTICLE II The Credits...................................................................... 16
SECTION 2.1 Commitments.................................................................. 16
SECTION 2.2 Loans and Borrowings......................................................... 16
SECTION 2.3 Requests for Revolving Borrowings............................................ 17
SECTION 2.4 Competitive Bid Procedure.................................................... 18
SECTION 2.5 Funding of Borrowings........................................................ 20
SECTION 2.6 Extension of Maturity Date and of Commitments................................ 20
SECTION 2.7 Interest Elections........................................................... 22
SECTION 2.8 Termination and Reduction of Commitments..................................... 23
SECTION 2.9 Repayment of Loans; Evidence of Debt......................................... 24
SECTION 2.10 Prepayment of Loans.......................................................... 24
SECTION 2.11 Fees......................................................................... 25
SECTION 2.12 Interest..................................................................... 26
SECTION 2.13 Alternate Rate of Interest................................................... 26
SECTION 2.14 Increased Costs.............................................................. 27
SECTION 2.15 Break Funding Payments....................................................... 28
SECTION 2.16 Taxes........................................................................ 29
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.................. 30
SECTION 2.18 Mitigation Obligations; Replacement of Lenders............................... 31
SECTION 2.19 Currency Conversion and Currency Indemnity................................... 32
SECTION 2.20 Additional Borrowers......................................................... 33
ARTICLE III Representations and Warranties................................................... 34
SECTION 3.1 Organization................................................................. 34
SECTION 3.2 Authorization and Validity................................................... 34
SECTION 3.3 Government Approval and Regulation........................................... 34
SECTION 3.4 Pension and Welfare Plans.................................................... 35
SECTION 3.5 Regulation U................................................................. 35
SECTION 3.6 Taxes........................................................................ 35
SECTION 3.7 Subsidiaries; Restricted Subsidiaries........................................ 35
ARTICLE IV Conditions....................................................................... 35
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CONTENTS
CLAUSE PAGE
SECTION 4.1 Effectiveness................................................................ 35
SECTION 4.2 All Loans.................................................................... 37
ARTICLE V Affirmative Covenants............................................................ 38
SECTION 5.1 Financial Reporting and Notices.............................................. 38
SECTION 5.2 Compliance with Laws......................................................... 39
SECTION 5.3 Maintenance of Properties.................................................... 39
SECTION 5.4 Insurance.................................................................... 39
SECTION 5.5 Books and Records............................................................ 39
SECTION 5.6 Use of Proceeds.............................................................. 39
ARTICLE VI Financial Covenants.............................................................. 40
SECTION 6.1 Ratio of Total Debt to Capital............................................... 40
ARTICLE VII Negative Covenants............................................................... 40
SECTION 7.1 Liens........................................................................ 40
SECTION 7.2 Mergers...................................................................... 41
SECTION 7.3 Asset Dispositions........................................................... 42
SECTION 7.4 Transactions with Affiliates................................................. 42
SECTION 7.5 Restrictive Agreements....................................................... 42
SECTION 7.6 Guaranties................................................................... 42
ARTICLE VIII Events of Default................................................................ 42
SECTION 8.1 Listing of Events of Default................................................. 42
SECTION 8.2 Action if Bankruptcy......................................................... 44
SECTION 8.3 Action if Other Event of Default............................................. 44
ARTICLE IX Agents........................................................................... 45
ARTICLE X Miscellaneous.................................................................... 47
SECTION 10.1 Notices...................................................................... 47
SECTION 10.2 Waivers; Amendments.......................................................... 48
SECTION 10.3 Expenses; Indemnity; Damage Waiver........................................... 49
SECTION 10.4 Successors and Assigns....................................................... 50
SECTION 10.5 Survival..................................................................... 52
SECTION 10.6 Counterparts; Integration; Effectiveness..................................... 53
SECTION 10.7 Severability................................................................. 53
SECTION 10.8 Right of Setoff.............................................................. 53
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS................... 54
SECTION 10.10 Headings..................................................................... 54
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CONTENTS
CLAUSE PAGE
SECTION 10.11 Confidentiality.............................................................. 55
SECTION 10.12 Interest Rate Limitation..................................................... 55
SECTION 10.13 Joint and Several Obligations................................................ 56
SECTION 10.14 USA PATRIOT Act Notice....................................................... 57
SECTION 10.15 NO ORAL AGREEMENTS........................................................... 57
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TABLE OF CONTENTS
(continued)
SCHEDULES AND EXHIBITS
EXHIBITS:
Exhibit A Form of Legal Opinion of ▇▇▇▇▇▇▇▇ & Knight LLP
Exhibit B Form of Compliance Certificate
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Borrowing/Interest Election Request
Exhibit E Form of Competitive Bid Quote Request
Exhibit F Form of Notice of Competitive Bid Quote Request
Exhibit G Form of Competitive Bid
Exhibit H Form of Competitive Bid Accept/Reject Letter
Exhibit I 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
CORPORATION, a Delaware corporation ("Apache" 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, BANK OF AMERICA, N.A. and CITIBANK, N.A.,
as U.S. Co-Syndication Agents, and CALYON NEW YORK BRANCH and SOCIETE GENERALE,
as U.S. 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:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"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.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"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 U.S.
Co-Syndication Agents and the U.S. 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.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus -1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Apache" is defined in the preamble.
"Apache Canada" means Apache Canada Ltd., a corporation organized under
the laws of the Province of Alberta, Canada.
"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 Eurodollar
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
Index Debt Ratings: points) basis 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
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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.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4), and accepted by the Global Administrative Agent, in
substantially the form of Exhibit C or any other form approved by the Global
Administrative Agent.
"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 Borrower" means Apache Energy Limited and each other Person
that becomes a borrower under the Australian Credit Agreement.
"Australian Credit Agreement" means that certain Credit Agreement of even
date herewith among the Australian Borrower, the Australian Lenders, the Global
Administrative Agent, the Australian 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.
"Australian Lenders" means the financial institutions listed on the
signature pages of the Australian Credit Agreement and their respective
successors and assigns.
"Australian Loan Documents" means the Australian 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.
"Authorized Officer" means, with respect to Apache, the Chairman, the
President, the Executive Vice President and Chief Financial Officer and the Vice
President and Treasurer of Apache, and any officer or employee of Apache
specified as such to the Global Administrative Agent in writing by any of the
aforementioned officers of Apache, and with respect to any Additional Borrower,
the Chairman, the Vice Chairman, the President, the Executive Vice President and
Chief Financial Officer and the Vice President and Treasurer of such Additional
Borrower, and any officer or employee of such Additional Borrower specified as
such to the
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Global Administrative Agent in writing by any of the aforementioned officers of
such Additional Borrower.
"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.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Apache Corporation, a Delaware corporation, and each
other Person that becomes an Additional Borrower pursuant to Section 2.20.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by Borrower for a Revolving Borrowing
in accordance with Section 2.3, in substantially the form of Exhibit D or any
other form approved by the Global Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"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.
"Canadian Borrower" means Apache 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,
4
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 Borrower and its
Subsidiaries plus the consolidated Debt of Borrower 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 Borrower, executed by an
Authorized Officer and delivered to the Global Administrative Agent, in a form
acceptable to the Global 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.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"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 this Agreement and the Canadian Credit Agreement)
or in a Substitution Certificate (as defined in the Australian Credit Agreement)
or pursuant to which such Combined Lender shall 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 Australian Credit
Agreement and the Canadian Credit Agreement.
5
"Combined Lenders" means the Lenders hereunder, the Australian Lenders and
the Canadian Lenders.
"Combined Loan Documents" means the Loan Documents, the Australian Loan
Documents and the Canadian Loan Documents.
"Combined Loans" means the loans made by the Combined Lenders to Borrower,
Australian 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 Revolving 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 Revolving Credit
Exposure hereunder. The initial amount of each Lender's Commitment is set forth
on Schedule 2.1, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Commitment, as applicable. The initial aggregate
amount of the Lenders' Commitments is $450,000,000.
"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 Bid" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.4, in substantially the form of Exhibit G or any other
form approved by the Global Administrative Agent.
"Competitive Bid Accept/Reject Letter" means a letter in substantially the
form of Exhibit H or any other form approved by the Global Administrative Agent.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by Borrower for Competitive Bids
in accordance with Section 2.4, in substantially the form of Exhibit E or any
other form approved by the Global Administrative Agent.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"Consolidated Assets" means the total assets of the Borrower and its
subsidiaries which would be shown as assets on a consolidated balance sheet of
Borrower and its subsidiaries prepared in accordance with GAAP.
6
"Consolidated Tangible Net Worth" means (i) the consolidated shareholder's
equity of Borrower and its Subsidiaries (determined in accordance with GAAP),
less (ii) the amount of consolidated intangible assets of Borrower and its
Subsidiaries, plus (iii) the aggregate amount of any non-cash write downs, on a
consolidated basis, by Borrower and its Subsidiaries during the term hereof.
"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.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with Borrower, are treated as
a single employer under Section 414 (b) or 414 (c) of the Internal Revenue Code
or Section 4001 of ERISA.
"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 or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
7
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate (or, in the case of
a Competitive Loan, the LIBO Rate).
"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 the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America 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 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.
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"Facility Fee" is defined in Section 2.11(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Global Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fitch" means Fitch, Inc. and any affiliate or successor thereto that is a
nationally recognized rating agency in the United States.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum (expressed as
a decimal to no more than four (4) decimal places) specified by the Lender
making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is not organized under the laws of,
or resident, in the United States. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent with the most recent financial
statements of Borrower and its Subsidiaries delivered to the Lenders pursuant
hereto.
"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 Borrower 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 Borrower
properly executed by an Authorized Officer of Borrower addressed to the Combined
Lenders and delivered to the Global Administrative Agent, in sufficient number
of counterparts to provide one for each such lender and each agent under each
Combined Credit Agreement, whereby Borrower 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 the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising
9
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"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 Borrower 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 Revolving Borrowing in accordance with Section 2.7, in substantially
the form of Exhibit D or any other form approved by the Global Administrative
Agent.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, (b) with respect to any
Eurodollar 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 Eurodollar 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, and (c) with respect to
any Fixed Rate 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 Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day, or, with the consent of the Global 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, (b) with respect to any Fixed Rate Borrowing, the period (which shall not
be less than seven (7) days or more than 360 days) commencing on the date of
such Borrowing and ending on the date specified in the applicable Competitive
Bid Request; 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, in the case of a Eurodollar Borrowing only, 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 pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding
10
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).
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar 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 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 Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the 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 and (ii) liens required by statute and
created in favor of U.S. 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, any Borrowing Request, any Interest
Election Request, any Competitive Bid Quote Request, any Notice of Competitive
Bid Quote Request, any Competitive Bid, any Competitive Bid Accept/Reject
Letter, any Certificate of Extension, any Assignment and Acceptance, 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.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
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"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 Borrower 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 Borrower and its
Subsidiaries, on a consolidated basis, to suffer a loss or incur a cost equal to
at least ten percent (10%) of Borrower's Consolidated Tangible Net Worth.
"Maturity Date" means the Original Maturity Date, or such other later date
as may result from any extension requested by Borrower 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.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Notice of Competitive Bid Request" means a notice of request by Borrower
for Competitive Bids sent by the Global Administrative Agent to each Lender in
accordance with Section 2.4, in substantially the form of Exhibit F or any other
form approved by the Global Administrative Agent.
"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.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Plan" means a "pension plan," as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in Section 4001(a)(3) of ERISA), and to which a Borrower or any
corporation, trade or business that is, along with a Borrower, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
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"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.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which Borrower or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City which rate may not be the lowest rate offered;
each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.
"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 from time
to time in effect and shall include any 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).
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"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 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, Apache Canada
and Apache Energy Limited, or is otherwise designated as such by Borrower in
writing to the Global Administrative Agent.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans at
such time.
"Revolving Loan" means a Loan made pursuant to Section 2.3.
"S&P" means Standard & Poor's and any successor thereto that is a
nationally-recognized rating agency in the United States.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the applicable maximum reserve percentages (including
any basic, marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Global Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"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; provided, however, that in
all events the following Persons shall not be deemed to be Subsidiaries of
Borrower 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.
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"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"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.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or,
in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"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. Co-Documentation Agents" means Calyon New York Branch and Societe
Generale, each in its capacity as U.S. co-documentation agent for the Lenders
hereunder.
"U.S. Syndication Agents" means Bank of America, N.A. and Citibank, N.A.,
each in its capacity as U.S. co-syndication agent for the Lenders hereunder.
"Welfare Plan" means a "welfare plan," as such term is defined in Section
3(1) of ERISA.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
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
15
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.
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 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 Global Administrative Agent notifies 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 Revolving 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 Revolving Credit Exposure
exceeding such Lender's Commitment or (b) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the total Commitments. Subject to the conditions set forth herein,
Borrower may borrow, prepay and reborrow Revolving Loans. Apache and any
Additional Borrowers shall be jointly and severally liable for all Obligations.
SECTION 2.2 Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.4. 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 and Competitive Bids 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, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as Borrower may request in
accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as Borrower may request in
accordance herewith. Each Lender at its option may make
16
any Eurodollar 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 Eurodollar
Revolving 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 or conversion of existing Revolving Loans made in connection
therewith). At the time that each ABR Revolving Borrowing is made, 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 or
conversion of existing Revolving Loans made in connection therewith); provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments. Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten (10) Eurodollar Revolving Borrowings outstanding.
(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 Revolving Borrowings. To request a Revolving
Borrowing, Borrower shall notify the Global Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than 1:00
p.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, on 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 Global Administrative Agent of a written Borrowing
Request in a form approved by the Global 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) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period".
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving 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
17
accordance with this Section, the Global 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 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to
time during the Availability Period, Borrower may request Competitive Bids and
may (but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided that the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans at any time
shall not exceed the total Commitments. To request Competitive Bids, Borrower
shall notify the Global Administrative Agent of such request by telephone, in
the case of a Eurodollar Borrowing, not later than noon, New York City time,
four Business Days before the date of the proposed Borrowing and, in the case of
a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that Borrower
may submit up to (but not more than) five (5) Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Global Administrative Agent of a written Competitive Bid Request and
signed by Borrower. Each such telephonic and written Competitive Bid 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) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing; and
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period".
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Global Administrative Agent shall notify the Lenders of the details
thereof by telecopy to each Lender of a Notice of Competitive Bid Quote Request
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to Borrower in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form approved by the Global
Administrative Agent and must be received by the Global Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than
noon, New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the
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Global Administrative Agent may be rejected by the Global Administrative Agent,
and the Global Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Global Administrative Agent shall promptly notify Borrower by
telecopy of a summary of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, Borrower may accept
or reject any Competitive Bid. Borrower shall notify the Global Administrative
Agent by telephone, confirmed by telecopy, in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 1:00 p.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 11:00 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by Borrower shall
not exceed the aggregate amount of the requested Competitive Borrowing specified
in the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except pursuant
to clause (iv) above, no Competitive Bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000
and an integral multiple of $1,000,000; provided further that if a Competitive
Loan must be in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular Competitive
Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner determined by Borrower. A notice given by
Borrower pursuant to this paragraph shall be irrevocable.
(e) The Global Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
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(f) If the Global Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the Global
Administrative Agent pursuant to paragraph (b) of this Section.
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 City time, to the account of the Global Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The Global
Administrative Agent will make such Loans available to Borrower by promptly
crediting the amounts so received, in like funds, to an account of Borrower
designated by Borrower from time to time in a written notice to the Global
Administrative Agent executed by two Authorized Officers of Apache and two
Authorized Officers of any Additional Borrower.
(b) Unless the Global 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 the Global Administrative Agent such Lender's share of such
Borrowing, the Global 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, 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 Global Administrative
Agent, then the applicable Lender and Borrower severally agree to pay to the
Global 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 Global
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate or a rate determined by the Global 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 Global 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 Borrower
shall request in a Certificate of Extension delivered to 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 Global Administrative Agent shall
promptly notify each Lender of such request and each Lender shall notify the
Global 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 Global
20
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 Global Administrative Agent pursuant to
clause (a) of this Section 2.6 of their agreement to extend the Maturity Date,
then the Global Administrative Agent shall so notify 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 Global 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 Global Administrative Agent shall promptly so notify Borrower and
the 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 Global 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 Global 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 Global 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 Global 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
21
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 an
Assignment and Acceptance by such Replacement Lender and such Declining
Lender, such Replacement Lender shall 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 Global Administrative Agent (which shall promptly
notify the Lenders thereof) no later than the tenth (10th) day following
the date by which 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 Revolving Borrowing initially shall be of the Type specified in
the applicable Borrowing Request (or an ABR Borrowing if no Type is specified)
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request (or one month if no
Interest Period is specified). Thereafter, Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Revolving Borrowing, 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. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, Borrower shall notify
the Global 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 Revolving Borrowing of the Type 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 Global 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:
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(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
clauses (iii) and (iv) 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;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, 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 Eurodollar 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 Global
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar Revolving 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 converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Global Administrative Agent, at
the request of the Required Lenders, so notifies Borrower, then, so long as an
Event of Default is continuing, (i) no outstanding Revolving Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid and
provided the Indebtedness has not been accelerated pursuant to Section 8.3, each
Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing 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 sum of the Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans would exceed the total Commitments.
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(c) Borrower shall notify the Global 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 Global 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 Global 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 (i) to the Global
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date or, if earlier, the date on
which the Commitment of such Lender relating to such Revolving Loan is
terminated (except for termination of the Commitment of the assigning Lender
pursuant to Section 10.4(b)), and (ii) to the Global Administrative Agent for
the account of each Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan.
(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.
(c) The Global Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof 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 Global
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 Global 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 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
24
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; provided that Borrower shall not have the
right to prepay any Competitive Loan without the prior consent of the Lender
thereof and compensation for break funding, to the extent required by Section
2.15.
(b) Borrower shall notify the Global Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 1:00 p.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, on 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 relating to a Revolving Borrowing, the
Global Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of the
same Type as provided in Section 2.2. Each prepayment of a Revolving 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 Global Administrative Agent for the
account of each Lender a facility fee (the "Facility Fee"), which shall accrue
at the Applicable Rate on the 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 Revolving Credit Exposure
after its Commitment terminates, then such Facility Fee shall continue to accrue
on the daily amount of such Lender's Revolving 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 Revolving 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).
25
(b) Borrower agrees to pay to the Global Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between Borrower and the Global Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Global 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) The Loans comprising each ABR Borrowing shall bear interest on the
daily amount outstanding at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest on
the daily amount outstanding (i) in the case of a Eurodollar Revolving Loan, at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan, at
the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest on the daily amount
outstanding at the Fixed Rate applicable to such Loan.
(d) 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 paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans on the
Maturity Date; provided that (i) interest accrued pursuant to paragraph (d) 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 Eurodollar Revolving 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 any
Declining Lender, accrued interest shall be paid upon the termination of the
Commitment of such Lender.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to (i) the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate and (ii) the
Fixed Rate, shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the
Global Administrative Agent, and such determination shall be conclusive absent
demonstrable error.
26
SECTION 2.13 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(i) the Global Administrative Agent determines (which determination
shall be conclusive absent demonstrable error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period; or
(ii) the Global Administrative Agent is advised by the Required
Lenders that the Adjusted 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 Global Administrative Agent shall give notice thereof to Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Global Administrative Agent notifies Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by Borrower for a Eurodollar Competitive Borrowing shall be ineffective;
provided that (A) if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by Borrower for Eurodollar Competitive Borrowings
may be made to Lenders that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings 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 (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate 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 Eurodollar Loan or Fixed Rate 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.
(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
27
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.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15 Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan or Fixed Rate 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 Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving 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), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate 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 Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by
such Lender to be the excess, if any, of (i) the amount of interest which would
have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted 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
28
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
Global Administrative Agent and shall be conclusive absent demonstrable error.
Borrower shall pay to the Global 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 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 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 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 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 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
Global 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 Global 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
Global Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable
29
law or reasonably requested by Borrower as will permit such payments to be made
without withholding or at a reduced rate.
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 City time, on the
date when due, in immediately available funds, without set-off or counterclaim.
All such payments shall be made to the Global Administrative Agent, c/o Loan &
Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, telephone no.: ▇▇▇-▇▇▇-▇▇▇▇, facsimile
no.: ▇▇▇-▇▇▇-▇▇▇▇, except that payments pursuant to Sections 2.14, 2.16 and 10.3
shall be made directly to the Persons entitled thereto. The Global
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
Global 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 Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving 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 Revolving 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 Revolving 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). 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
30
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 Global Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Global
Administrative Agent for the account of the Lenders hereunder that Borrower will
not make such payment, the Global Administrative Agent may assume that Borrower
has made such payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due. In such event,
if Borrower has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Global 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 Global Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Global 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 Global Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Global 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 assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (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 assignment.
(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 Global Administrative Agent, require such
Lender to assign 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
(other than any outstanding Competitive Loans held by it) to an assignee
designated by Borrower which meets the requirements of Section 10.4(b) that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) Borrower shall have received the
prior written consent of the Global Administrative Agent, which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to
31
the outstanding principal of its Loans (other than Competitive Loans), accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or Borrower (in the case of all other amounts), (iii) the
assignee and assignor shall have entered into an Assignment and Acceptance, and
(iv) in the case of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment 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.
(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
32
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, the United States 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 a certificate stating that
such Person is a Restricted Subsidiary of the Parent which is resident of,
and domiciled in, the United States.
(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 I (the "Additional Borrower Counterpart") or such other
agreement in form and substance satisfactory to the Global Administrative
Agent.
(vi) Opinions of Counsel. The Global 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 Exhibit A and in form and substance acceptable to the
Global Administrative Agent, in its reasonable discretion.
(vii) Approval. The Global Administrative Agent shall have approved
the addition of such Person as an Additional Borrower, such approval not
to be unreasonably withheld.
(viii) USA Patriot Act Requirements and other Identification
Requirements. Such Person shall provide information and documentation
necessary to comply with Section 326 of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), and such other
evidence as is reasonably requested by the Global 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.
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(ix) Notice. The Global 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. Apache is a corporation, 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 Borrower's corporate or partnership powers,
as applicable, have been duly authorized by all necessary corporate or
partnership action on behalf of it, and do not (a) contravene Borrower's
articles of incorporation or other organizational documents, as the case may be;
(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 Borrower's or any Subsidiary's
properties. 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 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 Borrower nor any of its 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"
34
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 Pension and Welfare Plans. During the twelve-consecutive-month
period prior to the date of the execution and delivery of this Agreement and
prior to the date of any Borrowing hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a lien under Section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which would result in the incurrence by Borrower or
any member of the Controlled Group of any liability, fine or penalty in excess
of $100,000,000. Neither Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefit under a Welfare
Plan, other than liability for continuation coverage described in Part 6 of
Title I of ERISA.
SECTION 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 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
35
board, then in full force and effect authorizing the execution,
delivery and performance of this Agreement and each other Loan
Document to be executed by it; (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 Global Administrative Agent shall have
received a certificate, signed by an Authorized Officer of Borrower,
stating that either (i) Borrower 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
Global Administrative Agent, the other Agents and all Lenders, from
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to Borrower, in substantially the
form attached hereto as Exhibit A.
(d) Closing Fees and Expenses. The Global 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 Global Administrative Agent shall have
received a certificate, signed by an Authorized Officer of Borrower,
stating that the audited consolidated financial statements of
Borrower and its Subsidiaries for fiscal year 2004 (the "2004
Financials") fairly present Borrower's financial condition and
results of operations and that prior to the Global Effective Date no
material adverse change in the condition or operations of 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,
Borrower conducts an ongoing review of the effect of existing
Environmental Laws on the business, operations and properties of
Borrower and its 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 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 Global Administrative Agent shall have received a
certificate, signed by an Authorized Officer of Borrower, stating
36
that after such review Borrower has reasonably concluded that
existing Environmental Laws are unlikely to have a Material Adverse
Effect, or that Borrower has established adequate reserves in
respect of any required clean-up.
(g) Global Effectiveness Notice. The Global Administrative Agent shall
have received the Global Effectiveness Notice.
(h) Other Combined Credit Agreements. The Global Administrative Agent
shall have received copies of the executed (i) Australian Credit
Agreement and the other Australian Loan Documents and (ii) Canadian
Credit Agreement and the other Canadian Loan Documents.
(i) Litigation. The Global Administrative Agent shall have received a
certificate, signed by an Authorized Officer of Borrower, stating
that no litigation, arbitration, governmental proceeding, Tax claim,
dispute or administrative or other proceeding shall be pending or,
to the knowledge of Borrower, threatened against Borrower 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.
(j) Other Documents. 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 Global 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 City 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.
(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 Global Administrative Agent shall have received a
Borrowing Request for any Revolving Borrowing, or a Competitive
Borrowing Request and a Competitive Bid Accept/Reject Letter for any
Competitive Borrowing.
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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. Apache will furnish, or will
cause to be furnished, to each Lender 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 Apache, a copy
of the audited annual report for such fiscal year for Apache and its
Subsidiaries, including therein consolidated balance sheets of
Apache and its Subsidiaries as of the end of such fiscal year and
consolidated statements of earnings and cash flow of Apache and its
Subsidiaries for such fiscal year, in each case certified (without
qualification) by independent public accountants of nationally
recognized standing selected by Apache;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of Apache commencing with the fiscal
quarter ending June 30, 2005, unaudited consolidated balance sheets
of Apache and its Subsidiaries as of the end of such fiscal quarter
and consolidated statements of earnings and cash flow of Apache and
its Subsidiaries for such fiscal quarter and for the period
commencing at the end of the previous fiscal year and ending with
the end of such fiscal quarter, certified by an Authorized Officer
of Apache;
(c) together with the financial statements described in (a) and (b),
above a compliance certificate, in substantially the form of Exhibit
B or any other form approved by the Global Administrative Agent,
executed by an Authorized Officer of Apache;
(d) within five (5) days after the occurrence of each Default, a
statement of an Authorized Officer of Apache setting forth details
of such Default and the action which Borrower has taken and proposes
to take with respect thereto;
(e) promptly after the sending or filing thereof, copies of all material
public filings, reports and communications from Borrower, and all
reports and registration statements which Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or
any national securities exchange;
(f) immediately upon becoming aware of the institution of any steps by
Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan
which would reasonably be expected to result in the requirement
38
that Borrower furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with respect to any
Pension Plan which would reasonably be expected to result in the
incurrence by Borrower of any liability, fine or penalty in excess
of $100,000,000, or any material increase in the contingent
liability of Borrower with respect to any postretirement Welfare
Plan benefit, notice thereof; and
(g) such other information respecting the financial condition or
operations of Borrower or any of its Subsidiaries as any Lender
through the Global 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 Global Administrative Agent and
the other Agents and each Lender through 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 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, (ii) for Borrower's and its Subsidiaries' general
corporate or partnership purposes, including any non-hostile acquisitions, or
(iii) to backup Apache's commercial paper facilities.
39
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. Apache will not permit its
ratio (expressed as a percentage) of (i) the consolidated Debt of Apache 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;
(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 or to another Restricted
Subsidiary or Liens on assets of an Unrestricted Subsidiary securing
Indebtedness of an Unrestricted Subsidiary owing to Borrower, 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;
40
(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
(xiv) in addition to Liens permitted by clauses (i) through (xiii) above,
Liens on property or assets of the Borrower and its Subsidiaries if
the aggregate Indebtedness of all such Persons secured thereby does
not exceed five percent (5%) of Borrower'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 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. Apache will not liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or sell, lease or otherwise
transfer all or substantially all
41
of its assets unless (a) Apache is the survivor of such 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; provided, however, that this Section
shall not apply to 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.
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. Borrower will not, and will not permit any of its
Restricted Subsidiaries to, guaranty any Indebtedness not included in the
consolidated Debt of Borrower and its Subsidiaries in an aggregate outstanding
principal amount at any time exceeding $100,000,000.
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.
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(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, 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 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 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 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
Borrower or any of its Restricted Subsidiaries in any amount in
excess of $100,000,000.
(f) Pension Plans. Any of the following events shall occur with respect
to any Pension Plan: (a) the termination of a Pension Plan if, as a
result of such termination, Borrower or any member of its Controlled
Group could be required to make a contribution to such Pension Plan,
or would reasonably expect to incur a liability or obligation to
such Pension Plan, in excess of $100,000,000; or (b) a contribution
failure occurs with respect to any Pension Plan sufficient to give
rise to a lien under Section 302(f) of ERISA with respect to a
liability or obligation in excess of $100,000,000.
(g) Bankruptcy and Insolvency. Borrower or any of its Restricted
Subsidiaries shall (a) become 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, sequestrator 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
exist the appointment of a trustee, receiver, sequestrator or other
custodian for Borrower, or any of its Restricted Subsidiaries, or
for a substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that Borrower and each
Restricted Subsidiary hereby expressly authorizes the Global
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, reorganization, debt arrangement or other case
43
or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up 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, provided that Borrower and each Restricted
Subsidiary hereby expressly authorizes the Global 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 Borrower or any of its 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. Any Person or group of Persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act) shall
acquire beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act) of 33 1/3% or more of the outstanding
shares of common stock of Borrower.
(j) Event of Default under other Combined Loan Documents. Any "Event of
Default" as defined in the Australian Loan Documents or the Canadian
Loan Documents shall occur; provided that the occurrence of a
"Default" as defined in the Australian 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 Australian Loan Documents or the Canadian Loan
Documents, as applicable, then such "Default" shall no longer
constitute a Default under this Agreement.
SECTION 8.2 Action if Bankruptcy. 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 Global
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to Borrower declare all of the outstanding principal amount of
44
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, Bank of America, N.A. and Citibank, N.A. as U.S.
Co-Syndication Agents, and Calyon New York Branch and Societe Generale as U.S.
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 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
Co-Documentation Agents or the
45
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 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 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
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 as provided in this paragraph, the Global 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 after the retiring Global Administrative Agent gives
notice of its resignation, then the retiring Global Administrative Agent may, on
behalf of the Lenders, appoint a successor Global Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Global 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, and the retiring Global Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by
Borrower to a successor Global 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 resignation hereunder, the
provisions of this Article and Section 10.3 shall continue in effect for the
benefit of such retiring Global 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.
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
46
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: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Assistant Treasurer
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and with copy to:
Vice President and General Counsel
Apache Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
47
(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 any other Lender, to it at its address (or telecopy number)
provided to the Global 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.
SECTION 10.2 Waivers; Amendments.
(a) No failure or delay by the Global 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 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 or any Lender may have had notice or knowledge of such
Default at the time.
(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 with the consent of the Combined Required
Lenders; provided that the same waiver,
48
amendment or modification is requested by Borrower 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
without the prior written consent of the Global Administrative Agent.
(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 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 hereunder or thereunder without the prior
written consent of the Global Administrative Agent.
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 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 for any Indemnitee,
49
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 under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Global 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.
(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.
SECTION 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or 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 assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the Global
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
50
(b) Any Lender may assign to one or more assignees 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 an assignment to a Lender or an Affiliate of a Lender, each of
Apache and the Global Administrative Agent must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Global Administrative Agent)
shall be in increments of $1,000,000 and not less than $10,000,000 unless each
of Borrower and the Global Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Global Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Global Administrative Agent an Administrative
Questionnaire; and provided further that any consent of Apache 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 Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16, 2.17, 2.19 and
10.3). Any assignment or 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.
(c) The Global Administrative Agent, acting for this purpose as an agent
of Borrower, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance 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 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 Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee
51
referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Global Administrative
Agent shall accept such Assignment and Acceptance and record the information
contained therein in the Register and will provide prompt written notice to
Borrower of the effectiveness of such Assignment. No assignment 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 or the Global
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (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 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 assignment 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.
(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.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender to a Federal Reserve Bank or, in the case of a Lender organized in a
jurisdiction outside of the United States, a comparable Person, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 10.5 Survival. All covenants, agreements, representations and
warranties made by Borrower herein and in the certificates or other instruments
delivered in
52
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 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 Global
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 Global Administrative Agent and when 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 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.
53
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM 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 NEW
YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT 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.
(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 YORK. 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.
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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 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
55
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 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
56
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 USA PATRIOT Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Global Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies each Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each Borrower, which information includes the name
and address of each Borrower and other information that will allow such Lender
or the Global Administrative Agent, as applicable, to identify each Borrower in
accordance with the Act.
SECTION 10.15 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]
57
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 CORPORATION
By: ________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A., as Global
Administrative Agent and as Lender
By: ________________________________________
Name:
Title:
BANK OF AMERICA, N.A., as a U.S. Co-
Syndication Agent and as Lender
By: ________________________________________
Name:
Title:
CITIBANK, N.A., as a U.S. Co-Syndication Agent
and as Lender
By: ________________________________________
Name:
Title:
CALYON NEW YORK BRANCH, as a U.S. Co-
Documentation Agent and as Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 1
SOCIETE GENERALE, as a U.S. Co-
Documentation Agent and as Lender
By: ________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as Lender
By: ________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as Lender
By: ________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Lender
By: ________________________________________
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION, as Lender
By: ________________________________________
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 2
THE ROYAL BANK OF SCOTLAND PLC, as
Lender
By: ________________________________________
Name:
Title:
BAYERISCHE LANDESBANK - CAYMAN
ISLANDS BRANCH, as Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
ABN AMRO BANK N.V., as Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
ING CAPITAL LLC, as Lender
By: ________________________________________
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ COMMITMENT
CORPORATION, as Lender
By: ________________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, NA, as Lender
By: ________________________________________
Name:
Title:
THE BANK OF NEW YORK, as Lender
By: ________________________________________
Name:
Title:
AMEGY BANK NATIONAL ASSOCIATION,
as Lender
By: ________________________________________
Name:
Title:
MIZUHO CORPORATE BANK, LTD.,
as Lender
By: ________________________________________
Name:
Title:
ROYAL BANK OF CANADA, as Lender
By: ________________________________________
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 4
DEUTSCHE BANK AG NEW YORK
BRANCH, as Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC., as
Lender
By: ________________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as
Lender
By: ________________________________________
Name:
Title:
BNP PARIBAS, as Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S - 5