EXHIBIT 10.2
[U.S. CREDIT AGREEMENT]
================================================================================
CREDIT AGREEMENT
dated as of June 3, 2002
among
APACHE CORPORATION,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK,
as Global Administrative Agent,
BANK OF AMERICA, N.A.,
as Global Syndication Agent,
CITIBANK, N.A.,
as Global Documentation Agent,
BANK OF AMERICA, N.A. and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as U.S. Co-Syndication Agents,
and
CITIBANK, N.A. and
UNION BANK OF CALIFORNIA, N.A.,
as U.S. Co-Documentation Agents,
------------
J.P. MORGAN SECURITIES INC.,
BANC OF AMERICA SECURITIES, LLC and
SALOMON SMITH BARNEY INC.,
as Global Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
<Table>
ARTICLE I DEFINITIONS................................................................................1
SECTION 1.1 Defined Terms.....................................................................1
SECTION 1.2 Classification of Loans and Borrowings...........................................16
SECTION 1.3 Terms Generally..................................................................16
SECTION 1.4 Accounting Terms; GAAP...........................................................16
ARTICLE II THE CREDITS...............................................................................17
SECTION 2.1 Commitments......................................................................17
SECTION 2.2 Loans and Borrowings.............................................................17
SECTION 2.3 Requests for Revolving Borrowings................................................18
SECTION 2.4 Competitive Bid Procedure........................................................18
SECTION 2.5 Funding of Borrowings............................................................20
SECTION 2.6 Extension of Maturity Date and of Commitments....................................21
SECTION 2.7 Interest Elections...............................................................23
SECTION 2.8 Termination and Reduction of Commitments.........................................24
SECTION 2.9 Repayment of Loans; Evidence of Debt.............................................24
SECTION 2.10 Prepayment of Loans..............................................................25
SECTION 2.11 Fees.............................................................................26
SECTION 2.12 Interest.........................................................................26
SECTION 2.13 Alternate Rate of Interest.......................................................27
SECTION 2.14 Increased Costs..................................................................28
SECTION 2.15 Break Funding Payments...........................................................29
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...................................32
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.......................................................35
SECTION 3.3 Government Approval and Regulation...............................................35
SECTION 3.4 Pension and Welfare Plans........................................................35
SECTION 3.5 Regulation U.....................................................................35
SECTION 3.6 Taxes............................................................................35
</Table>
TABLE OF CONTENTS
(continued)
<Table>
SECTION 3.7 Subsidiaries; Restricted Subsidiaries............................................36
ARTICLE IV CONDITIONS................................................................................36
SECTION 4.1 Effectiveness....................................................................36
SECTION 4.2 All Loans........................................................................38
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........................................................................40
SECTION 5.5 Books and Records................................................................40
SECTION 5.6 Minimum Book Value for Assets of Borrower and its Restricted Subsidiaries........40
SECTION 5.7 Use of Proceeds..................................................................40
ARTICLE VI FINANCIAL COVENANTS.......................................................................40
SECTION 6.1 Minimum Tangible Net Worth.......................................................40
SECTION 6.2 Ratio of Total Debt to Capital...................................................41
ARTICLE VII NEGATIVE COVENANTS........................................................................41
SECTION 7.1 Liens............................................................................41
SECTION 7.2 Mergers..........................................................................42
SECTION 7.3 Asset Dispositions...............................................................42
SECTION 7.4 Transactions with Affiliates.....................................................43
SECTION 7.5 Restrictive Agreements...........................................................43
SECTION 7.6 Guaranties.......................................................................43
ARTICLE VIII EVENTS OF DEFAULT.........................................................................43
SECTION 8.1 Listing of Events of Default.....................................................43
SECTION 8.2 Action if Bankruptcy.............................................................45
SECTION 8.3 Action if Other Event of Default.................................................45
ARTICLE IX AGENTS....................................................................................46
ARTICLE X MISCELLANEOUS.............................................................................48
SECTION 10.1 Notices..........................................................................48
SECTION 10.2 Waivers; Amendments..............................................................49
SECTION 10.3 Expenses; Indemnity; Damage Waiver...............................................50
SECTION 10.4 Successors and Assigns...........................................................51
</Table>
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TABLE OF CONTENTS
(continued)
<Table>
SECTION 10.5 Survival.........................................................................53
SECTION 10.6 Counterparts; Integration; Effectiveness.........................................54
SECTION 10.7 Severability.....................................................................54
SECTION 10.8 Right of Setoff..................................................................54
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.......................54
SECTION 10.10 Headings.........................................................................55
SECTION 10.11 Confidentiality..................................................................55
SECTION 10.12 Interest Rate Limitation.........................................................56
SECTION 10.13 Joint and Several Obligations....................................................57
SECTION 10.14 NO ORAL AGREEMENTS...............................................................58
</Table>
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 3, 2002, 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,
as Global Administrative Agent, BANK OF AMERICA, N.A., as Global Syndication
Agent, CITIBANK, N.A., as Global Documentation Agent, BANK OF AMERICA, N.A. and
WACHOVIA BANK, NATIONAL ASSOCIATION, as U.S. Co-Syndication Agents, and
CITIBANK, N.A. and UNION BANK OF CALIFORNIA, N.A., 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 Global
Syndication Agent, Global Documentation 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 Moody's, S&P and Fitch, respectively, applicable on such date to the
Index Debt:
<Table>
<Caption>
Facility Fee (in basis Eurodollar Margin (in basis
Index Debt Ratings: points) points)
------------------- ----------------------- ---------------------------
Category 1: > or = to A/A2 8.00 27.00
Category 2: A-/A3 10.00 30.00
Category 3: BBB+/Baa1 12.50 37.50
Category 4: BBB/Baa2 15.00 45.00
Category 5: BBB-/Baa3 20.00 65.00
Category 6: < BBB-/Baa3 25.00 75.00
</Table>
For purposes of the foregoing, (i) if either Moody's, 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
6; (ii) if the ratings established or deemed to have been established by
Moody's, 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
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fall within different Categories in which case the Applicable Rate shall be
based on the lower of the highest two ratings; and (iii) if the ratings
established or deemed to have been established by Moody's, S&P and Fitch for the
Index Debt shall be changed (other than as a result of a change in the rating
system of Moody's, 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 Moody's, 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 D 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, Bank of
America, N.A., Sydney Branch (ARBN 064 874 531) and Deutsche Bank AG, Sydney
Branch (ABN 13 064 165 162), as Australian co-syndication agents, and Royal Bank
of Canada (ABN 86 076 940 880) and Bank One, NA, Australia Branch (ARBN 065 752
918), as Australian co-documentation agents, 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
3
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 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 E
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, The Bank of Nova Scotia
and The Toronto-Dominion Bank, as Canadian co-syndication agents, and BNP
Paribas (Canada) and Bayerische Landesbank Girozentrale, as Canadian
co-documentation agents, as it may be amended, supplemented, restated or
otherwise modified and in effect from time to time.
4
"Canadian Lenders" means the financial institutions listed on the
signature pages of the Canadian Credit Agreement and their respective successors
and assigns.
"Canadian Loan Documents" means the Canadian Credit Agreement, any
notes, any guaranties, any assignment agreements, and the agreement with respect
to fees, together with all exhibits, schedules and attachments thereto, and all
other agreements, documents, certificates, financing statements and instruments
from time to time executed and delivered pursuant to or in connection with any
of the foregoing.
"Capital" means the consolidated shareholder's equity of 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, the Canadian Credit Agreement and the 364-Day 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 $1,500,000,000.
5
"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, the Canadian Credit Agreement and the 364-Day Credit
Agreement.
"Combined Lenders" means the Lenders hereunder, the Australian Lenders,
the Canadian Lenders and the 364-Day Lenders.
"Combined Loan Documents" means the Loan Documents, the Australian Loan
Documents, the Canadian Loan Documents and the 364-Day Loan Documents.
"Combined Loans" means the loans made by the Combined Lenders to
Borrower, Australian Borrower, Canadian Borrower and 364-Day 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 33%, then an amount equal to zero basis
points per annum (0 bps) and, if the Combined Commitment Utilization is greater
than or equal to 33%, then an amount equal to 12.5 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 H or any
other form approved by the Global Administrative Agent.
"Competitive Bid Accept/Reject Letter" means a letter in substantially
the form of Exhibit I 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.
6
"Competitive Bid Request" means a request by Borrower for Competitive
Bids in accordance with Section 2.4, in substantially the form of Exhibit F or
any other form approved by the Global Administrative Agent.
"Competitive Loan" means a Loan made pursuant to Section 2.4.
"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.
7
"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.
"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 12, 1997, among Apache
Corporation, the lenders party thereto, The Chase Manhattan Bank, as global
administrative agent, and the other agents party thereto, (ii) that certain
Credit Agreement [Australian Credit Agreement], dated as of June 12, 1997,
8
among Apache Energy Limited (CAN 009 301 964) and Apache Oil Australia Pty.
Limited (ACN 050 611 688), the lenders party thereto, The Chase Manhattan Bank,
as global administrative agent, and the other agents party thereto, (iii) that
certain Credit Agreement [Canadian Credit Agreement], dated as of June 12, 1997,
among Apache Canada Ltd., the lenders party thereto, The Chase Manhattan Bank,
as global administrative agent, and the other agents party thereto, and (iv)
that certain 364-Day Credit Agreement, dated as of July 14, 2000, among Apache
Corporation, the lenders party thereto, Citibank, N.A., as administrative agent,
and the other agents party thereto.
"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, in its
capacity as global administrative agent for the Combined Lenders.
"Global Documentation Agent" means Citibank, N.A., in its capacity as
global documentation 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).
9
"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.
"Global Syndication Agent" means Bank of America, N.A., in its capacity
as global syndication agent for the Combined Lenders.
"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 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 E 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.
10
"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 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.
11
"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.
"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 Moody's 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 G 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 June 3, 2007.
"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
12
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.
"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 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.
13
"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).
"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 or is otherwise designated 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
14
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.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364-Day Borrower" means Apache and each other Person that becomes a
borrower under the 364-Day Credit Agreement.
"364-Day Credit Agreement" means that certain 364-Day Credit Agreement
of even date herewith among the 364-Day Borrower, the 364-Day Lenders, the
Global Administrative Agent, Bank of America, N.A., and BNP Paribas, as 364-Day
co-syndication agents, and Deutsche Bank AG New York Branch, and Societe
Generale, as 364-Day co-documentation agents, as it may be amended,
supplemented, restated or otherwise modified and in effect from time to time.
"364-Day Lenders" means the financial institutions listed on the
signature pages of the 364-Day Credit Agreement and their respective successors
and assigns.
"364-Day Loan Documents" means the 364-Day 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.
"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.
15
"U.S. Co-Documentation Agents" means Citibank, N.A., and Union Bank of
California, N.A., 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 Wachovia
Bank, National Association, 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 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
16
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 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.
17
(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 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
18
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 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
19
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.
(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 date of any Borrowing that such Lender will
not make available to the
20
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 such 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 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
21
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 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.
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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:
(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".
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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.
(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.
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(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 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
25
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).
(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.
26
(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.
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;
27
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 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.
28
(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 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 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
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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 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, One Chase Manhattan Plaza, 8th Floor,
New York, New York 10081, attention: Lisa Pucciarelli, telephone: (212)
552-7446, facsimile: (212) 552-5777, 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
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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 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
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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 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
32
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 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.
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(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 J (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 Exhibits A and B 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.
(b) Upon fulfillment of the conditions in this Section 2.20(a), the
Global Administrative Agent will promptly notify each Lender of the date that
such Person becomes an Additional Borrower hereunder.
ARTICLE III
Representations and Warranties
In order to induce the Lenders and the Agents to enter into this
Agreement and the Lenders to make Loans hereunder, Borrower represents and
warrants unto the Agents and each Lender as set forth in this Article III.
SECTION 3.1 Organization. Borrower 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.
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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 powers, have been duly
authorized by all necessary corporate 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" 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 $25,000,000. 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.
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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 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 Borrower or its Subsidiaries have
repaid in full and terminated the Existing Global Credit
Facilities concurrently with 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 (i) Jeffrey B. King, Esq., Corporate
Counsel and Assistant Secretary of Borrower, in substantially
the form attached hereto as Exhibit A, and (ii) Chamberlain,
Hrdlicka, White, Williams & Martin, counsel to Borrower, in
substantially the form attached hereto as Exhibit B.
(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
2001 (the "2001 Financials") fairly present Borrower's
financial condition and
36
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 2001 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 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, (ii) Canadian Credit Agreement and the other
Canadian Loan Documents and (iii) 364-Day Credit Agreement and
the other 364-Day 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
37
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 July 31, 2002
(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.
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, 2002, 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
38
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 C 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 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
$25,000,000, 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).
39
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 Minimum Book Value for Assets of Borrower and its
Restricted Subsidiaries. Apache shall maintain an aggregate book value for
assets of Apache and its Restricted Subsidiaries (without duplication and
excluding the aggregate book value attributable to Apache or any Restricted
Subsidiary arising in connection with any Subsidiary which is not a Restricted
Subsidiary) as of the end of any fiscal quarter, commencing with the quarter
ending March 31, 2002, equal to or greater than the difference of (i)
$2,000,000,000 less (ii) the aggregate amount of any non-cash write downs (other
than for recurring depletion or depreciation) made by Apache and any Restricted
Subsidiary; provided that, if as of the end of any fiscal quarter Apache is not
in compliance with this Section, Apache, for a period of 30 days following the
delivery of the financial statements for such fiscal quarter, shall be entitled
to cure such non-compliance by delivering a notice to the Global Administrative
Agent designating certain Unrestricted Subsidiaries as Restricted Subsidiaries
for the purposes of this Agreement at which time the Global Administrative Agent
shall redetermine compliance with this Section using such newly-designated
Restricted Subsidiaries in such redetermination.
SECTION 5.7 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 purposes, including any non-hostile
acquisitions, or (iii) to backup Apache's commercial paper facilities.
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 Minimum Tangible Net Worth. Apache will not permit its
Consolidated Tangible Net Worth as of the end of any fiscal quarter, commencing
with the quarter ending December 31, 2001, to be less than (i) $2,000,000,000
plus (ii) an amount equal
40
to 50% of the sum of Apache's and its Subsidiaries' consolidated net income for
each fiscal quarter, beginning with the fiscal quarter ending March 31, 2002,
during which such consolidated net income is greater than $0.
SECTION 6.2 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, 2002.
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;
(vii) Liens reserved in oil, gas and/or mineral leases for bonus
rental payments and for compliance with the terms of such
leases;
41
(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 if the aggregate
Indebtedness secured thereby does not exceed $100,000,000.
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 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.
42
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, Apache
681/682 Joint Venture, a Texas joint venture, Apache Clearwater Operations,
Inc., Apache Clearwater, Inc., Clearwater Evergreen, LP, Apache Topwater
Operations, LLC, Apache Topwater, LLC and Clearwater Interests, LLC.
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.
(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.
43
(c) Non-Performance of Covenants and Obligations. Borrower shall
default in the due performance and observance of any of its
obligations under Section 5.6, 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 $25,000,000.
(f) Pension Plans. Any of the following events shall occur with
respect to any Pension Plan: (a) the institution of any steps
by Borrower, any member of its Controlled Group or any other
Person to terminate a Pension Plan if, as a result of such
termination, Borrower or any such member 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 $25,000,000; 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.
(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 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
44
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 $25,000,000 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, the Canadian Loan Documents or the 364-Day Loan
Documents shall occur; provided that the occurrence of a
"Default" as defined in the Australian Loan Documents, the
Canadian Loan Documents or the 364-Day Loan Documents shall
constitute a Default under this Agreement; provided further
that if such "Default" is cured or waived under the Australian
Loan Documents, the Canadian Loan Documents or the 364-Day
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 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.
45
ARTICLE IX
Agents
Each of the Lenders hereby irrevocably appoints JPMorgan Chase Bank as
Global Administrative Agent, Bank of America, N.A. as Global Syndication Agent,
Citibank, N.A. as Global Documentation Agent, Bank of America, N.A. and Wachovia
Bank, National Association as U.S. Co-Syndication Agents, and Citibank, N.A. and
Union Bank of California, N.A. 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, the Agents 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.
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
46
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 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.
47
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
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Attention: Matthew W. Dundrea
Vice President and Treasurer
Telephone: (713) 296-6640
Facsimile: (713) 296-6458
with a copy to:
Assistant Treasurer
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Telephone: (713) 296-6642
Facsimile: (713) 296-6477
and with copy to:
Vice President and General Counsel
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Telephone: (713) 296-6204
Facsimile: (713) 296-6458
48
(b) if to the Global Administrative Agent, to:
JPMorgan Chase Bank
Loan & Agency Services Group
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Lisa Pucciarelli
Telephone: (212) 552-7446
Facsimile: (212) 552-5777
with a copy to:
JPMorgan Chase Bank
600 Travis, 20 CTH 86
Houston, Texas 77002
Attention: Peter Licalzi
Telephone: (713) 216-8870
Facsimile: (713) 216-4117
(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
49
Agent with the consent of the Combined Required Lenders; provided that the same
waiver, 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") 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
50
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the actual or proposed use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned
or operated by Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether 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.
51
(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
52
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
53
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.
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
54
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS 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
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.
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
55
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 nonconfidential 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 nonconfidential 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 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
56
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 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
57
acknowledges that in extending the credit provided herein the Agent and the
Lenders are relying upon the fact that the Obligations of each Borrower
hereunder are the joint and several obligations of a principal. The invalidity,
unenforceability or illegality of this Agreement or any other Loan Document as
to one Borrower or the release by the Agent or the Lenders of a Borrower
hereunder or thereunder shall not affect the Obligations of the other Borrowers
under this Agreement or the other Loan Documents, all of which shall otherwise
remain valid and legally binding obligations of the other Borrowers.
SECTION 10.14 NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
58
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: Matthew W. Dundrea
Title: Vice President and Treasurer
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-1
JPMORGAN CHASE BANK, as Global
Administrative Agent and as Lender
By:
---------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-2
BANK OF AMERICA, N.A., as Global
Syndication Agent, a U.S. Co-Syndication
Agent and as Lender
By:
---------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-3
CITIBANK, N.A., as Global Documentation
Agent, a U.S. Co-Documentation Agent
and as Lender
By:
---------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-4
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a U.S. Co-Syndication Agent
and as Lender
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-5
UNION BANK OF CALIFORNIA, N.A., as a
U.S. Co-Documentation Agent and as Lender
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-6
DEUTSCHE BANK AG NEW YORK
BRANCH, as Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-7
BNP PARIBAS, as Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-8
THE BANK OF NOVA SCOTIA, ATLANTA
AGENCY, as Lender
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-9
BANK ONE, NA (MAIN OFFICE CHICAGO),
as Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-10
SOCIETE GENERALE, as Lender
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-11
TORONTO DOMINION (TEXAS), INC., as
Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-12
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as Lender
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-13
THE ROYAL BANK OF SCOTLAND PLC, as
Lender
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-14
ABN AMRO BANK N.V., as Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-15
CREDIT LYONNAIS, NEW YORK BRANCH,
as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-16
ING CAPITAL LLC, as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-17
MERRILL LYNCH BANK USA, as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-18
MIZUHO CORPORATE BANK, LIMITED,
as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-19
SUMITOMO MITSUI BANKING
CORPORATION, as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-20
WELLS FARGO BANK TEXAS, N.A.,
as Lender
By:
-----------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-21
SOUTHWEST BANK OF TEXAS, N.A.,
as Lender
By:
--------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-22
THE BANK OF NEW YORK, as Lender
By:
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-23
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH, as Lender
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-24
KBC BANK, N.V., NEW YORK BRANCH,
as Lender
By:
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO U.S. CREDIT AGREEMENT]
S-25