Exhibit 10.2
[CANADIAN CREDIT AGREEMENT]
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CREDIT AGREEMENT
dated as of May 12, 2005
among
APACHE CANADA LTD.,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as Global Administrative Agent,
ROYAL BANK OF CANADA,
as Canadian Administrative Agent,
BANK OF MONTREAL
and
UNION BANK OF CALIFORNIA, N.A., CANADA BRANCH,
as Canadian Co-Syndication Agents,
and
THE TORONTO-DOMINION BANK
and
BNP PARIBAS (CANADA),
as Canadian Co-Documentation Agents,
-------------------
RBC CAPITAL MARKETS and
BMO NESBITT BURNS,
as Co-Lead Arrangers and Joint Bookrunners
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CONTENTS
CLAUSE PAGE
ARTICLE I Definitions.......................................................... 1
SECTION 1.1 Defined Terms.................................................... 1
SECTION 1.2 Classification of Loans and Borrowings........................... 13
SECTION 1.3 Terms Generally.................................................. 13
SECTION 1.4 Accounting Terms; GAAP........................................... 13
ARTICLE II The Credits.......................................................... 14
SECTION 2.1 Commitments...................................................... 14
SECTION 2.2 Loans and Borrowings............................................. 14
SECTION 2.3 Requests for Borrowings.......................................... 15
SECTION 2.4 [Intentionally omitted].......................................... 15
SECTION 2.5 Funding of Borrowings............................................ 15
SECTION 2.6 Extension of Maturity Date and of Commitments.................... 16
SECTION 2.7 Interest Elections............................................... 18
SECTION 2.8 Termination and Reduction of Commitments......................... 19
SECTION 2.9 Repayment of Loans; Evidence of Debt............................. 19
SECTION 2.10 Prepayment of Loans.............................................. 20
SECTION 2.11 Fees............................................................. 21
SECTION 2.12 Interest......................................................... 21
SECTION 2.13 Alternate Rate of Interest....................................... 22
SECTION 2.14 Increased Costs.................................................. 23
SECTION 2.15 Break Funding Payments........................................... 24
SECTION 2.16 Taxes............................................................ 24
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs...... 25
SECTION 2.18 Mitigation Obligations; Replacement of Lenders................... 27
SECTION 2.19 Currency Conversion and Currency Indemnity....................... 27
SECTION 2.20 Additional Borrowers............................................. 28
ARTICLE III Representations and Warranties....................................... 29
SECTION 3.1 Organization..................................................... 30
SECTION 3.2 Authorization and Validity....................................... 30
SECTION 3.3 Government Approval and Regulation............................... 30
SECTION 3.4 Unfunded Pension Liabilities..................................... 30
SECTION 3.5 Regulation U..................................................... 30
SECTION 3.6 Taxes............................................................ 30
SECTION 3.7 Subsidiaries; Restricted Subsidiaries............................ 31
ARTICLE IV Conditions........................................................... 31
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CONTENTS
CLAUSE PAGE
SECTION 4.1 Effectiveness.................................................... 31
SECTION 4.2 All Loans........................................................ 33
ARTICLE V Affirmative Covenants................................................ 33
SECTION 5.1 Financial Reporting and Notices.................................. 33
SECTION 5.2 Compliance with Laws............................................. 34
SECTION 5.3 Maintenance of Properties........................................ 35
SECTION 5.4 Insurance........................................................ 35
SECTION 5.5 Books and Records................................................ 35
SECTION 5.6 [Intentionally omitted].......................................... 35
SECTION 5.7 Use of Proceeds.................................................. 35
ARTICLE VI Financial Covenants.................................................. 35
SECTION 6.1 Ratio of Total Debt to Capital................................... 35
ARTICLE VII Negative Covenants................................................... 36
SECTION 7.1 Liens............................................................ 36
SECTION 7.2 Mergers.......................................................... 38
SECTION 7.3 Asset Dispositions............................................... 38
SECTION 7.4 Transactions with Affiliates..................................... 38
SECTION 7.5 Restrictive Agreements........................................... 38
SECTION 7.6 Guaranties....................................................... 38
ARTICLE VIII Events of Default.................................................... 38
SECTION 8.1 Listing of Events of Default..................................... 38
SECTION 8.2 Action if Bankruptcy............................................. 40
SECTION 8.3 Action if Other Event of Default................................. 41
ARTICLE IX Agents............................................................... 41
ARTICLE X Miscellaneous........................................................ 43
SECTION 10.1 Notices.......................................................... 43
SECTION 10.2 Waivers; Amendments.............................................. 45
SECTION 10.3 Expenses; Indemnity; Damage Waiver............................... 46
SECTION 10.4 Successors and Assigns........................................... 47
SECTION 10.5 Survival......................................................... 49
SECTION 10.6 Counterparts; Integration; Effectiveness......................... 49
SECTION 10.7 Severability..................................................... 50
SECTION 10.8 Right of Setoff.................................................. 50
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS....... 50
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CONTENTS
CLAUSE PAGE
SECTION 10.10 Headings......................................................... 51
SECTION 10.11 Confidentiality.................................................. 51
SECTION 10.12 Interest Rate Limitation......................................... 52
SECTION 10.13 Joint and Several Obligations.................................... 53
SECTION 10.14 NO ORAL AGREEMENTS............................................... 53
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Table of Contents
(continued)
EXHIBITS:
Exhibit A Form of Legal Opinion of Bennett Jones LLP
Exhibit B Form of Legal Opinion of Thompson & Knight LLP
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Borrowing/Interest Election Request
Exhibit F Form of Guaranty
Exhibit G Form of Additional Borrower Counterpart
SCHEDULES:
Schedule 2.1 Commitments
Schedule 3.7 Subsidiaries; Restricted Subsidiaries
Schedule 7.1 Liens
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 12, 2005, is among APACHE CANADA
LTD., a corporation organized under the laws of the Province of Alberta, Canada
("Apache Canada" and together with each other Person that becomes an Additional
Borrower pursuant to Section 2.20, the "Borrower"), the LENDERS (as defined
below) party hereto, JPMORGAN CHASE BANK, N.A., as Global Administrative Agent,
ROYAL BANK OF CANADA, as Canadian Administrative Agent, BANK OF MONTREAL and
UNION BANK OF CALIFORNIA, N.A., CANADA BRANCH, as Canadian Co-Syndication
Agents, and THE TORONTO-DOMINION BANK and BNP PARIBAS (CANADA), as Canadian
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.
"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 Canadian
Administrative Agent, the Canadian Co-Syndication Agents and the Canadian
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 U.S. Base 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 U.S. Base Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the U.S. Base Rate or the Federal Funds Effective Rate, respectively.
"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:
Facility Fee (in basis Eurodollar Margin (in basis
Index Debt Ratings: points) points)
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Category 1: > or = A+/A1 5.50 12.00
Category 2: A/A2 6.00 14.00
Category 3: A-/A3 7.00 23.00
Category 4: BBB+/Baa1 9.00 31.00
Category 5: BBB/Baa2 11.00 39.00
Category 6: BBB-/Baa3 12.50 50.00
Category 7: < BBB-/Baa3 17.50 57.50
For purposes of the foregoing, (i) if either 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 7;
(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 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
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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 Canadian Administrative Agent, in
substantially the form of Exhibit D or any other form approved by the Canadian
Administrative Agent.
"Australian Administrative Agent" means Citisecurities Limited (ABN 51 008
489 610) in its capacity as Australian administrative agent for the lenders
party to the Australian Credit Agreement and any successor thereto.
"Australian Borrower" means Apache Energy Limited and each other Person
that becomes a borrower under the Australian Credit Agreement.
"Australian Credit Agreement" means that certain Credit Agreement of even
date herewith among the Australian Borrower, the Australian Lenders, the Global
Administrative Agent, the Australian Administrative Agent and the other agents
party thereto, as it may be amended, supplemented, restated or otherwise
modified and in effect from time to time.
"Australian Lenders" means the financial institutions listed on the
signature pages of the Australian Credit Agreement and their respective
successors and assigns.
"Australian Loan Documents" means the Australian Credit Agreement, any
notes, any guaranties, any assignment agreements, and the agreement with respect
to fees, together with all exhibits, schedules and attachments thereto, and all
other agreements, documents, certificates, financing statements and instruments
from time to time executed and delivered pursuant to or in connection with any
of the foregoing.
"Authorized Officer" means, with respect to any Borrower, the Chairman,
the Vice Chairman, the President, the Executive Vice President and Chief
Financial Officer and the Vice President and Treasurer of such Borrower, and any
officer or employee of such Borrower specified as such to the Canadian
Administrative Agent and the Global Administrative Agent in writing by any of
the aforementioned officers of such Borrower, or, with respect to Parent, the
Chairman, the President, the Executive Vice President and Chief Financial
Officer and the Vice President and Treasurer of Parent, and any officer or
employee of Parent specified as such to the
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Canadian Administrative Agent and the Global Administrative Agent in writing by
any of the aforementioned officers of Parent.
"Availability Period" means, with respect to any Lender, the period from
and including the Global Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitment of such Lender;
provided, however, that no Commitment of any Lender shall terminate prior to the
Maturity Date except as provided in Sections 2.6, 2.8, 4.1, 8.2, 8.3 and 10.4.
"Borrower" means Apache Canada Ltd., a corporation organized under the
laws of the Province of Alberta, Canada and each other Person that becomes an
Additional Borrower pursuant to Section 2.20.
"Borrowing" means 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.
"Borrowing Request" means a request by Borrower for a Borrowing in
accordance with Section 2.3, in substantially the form of Exhibit E or any other
form approved by the Canadian Administrative Agent and the Global Administrative
Agent.
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in Calgary, Alberta, Toronto, Ontario and New York,
New York are authorized or required by law to remain closed; provided that, when
used in connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"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 Co-Documentation Agents" means The Toronto-Dominion Bank and BNP
Paribas (Canada), each in its capacity as Canadian co-documentation agent for
the Lenders hereunder.
"Canadian Co-Syndication Agents" means Bank of Montreal and Union Bank of
California, N.A., Canada Branch, each in its capacity as Canadian co-syndication
agent for the Lenders hereunder.
"Capital" means the consolidated shareholder's equity of Parent and its
Subsidiaries plus the consolidated Debt of Parent and its Subsidiaries.
"Capitalized Lease" means, with any respect to a Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"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.
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"Certificate of Extension" means a certificate of Parent and Borrower,
executed by an Authorized Officer and delivered to the Global Administrative
Agent and the Canadian Administrative Agent, in a form acceptable to the Global
Administrative Agent and the Canadian Administrative Agent, which requests an
extension of the then scheduled Maturity Date pursuant to Section 2.6.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.16(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Combined Commitments" means the commitment of each Combined Lender under
the Combined Credit Agreements, as such commitment may be reduced, increased or
terminated from time to time pursuant to the Combined Loan Documents and, if any
such commitments are no longer in effect under any Combined Credit Agreement,
the aggregate unpaid principal amount of the outstanding loans for which the
applicable commitment is no longer in effect under such Combined Credit
Agreement. The initial amount of each Combined Lender's Commitment is set forth
on Schedule 2.1 to the applicable Combined Credit Agreement, or in a Assignment
and Acceptance (as defined in this Agreement and the U.S. Credit Agreement) or
in a Substitution Certificate (as defined in the Australian Credit Agreement) or
pursuant to which such Combined Lender shall have assumed its Combined
Commitment, as applicable. The initial aggregate amount of the Combined Lenders'
Combined Commitments is $750,000,000.
"Combined Commitment Utilization" means, for any period, the ratio of (i)
the aggregate principal amount of then outstanding Combined Loans (other than
any Competitive Loans (as defined in the U.S. Credit Agreement)) to (ii) the
then aggregate amount of the Combined Commitments.
"Combined Credit Agreements" means this Agreement, the Australian Credit
Agreement and the U.S. Credit Agreement.
"Combined Lenders" means the Lenders hereunder, the Australian Lenders and
the U.S. Lenders.
"Combined Loan Documents" means the Loan Documents, the Australian Loan
Documents and the U.S. Loan Documents.
"Combined Loans" means the loans made by the Combined Lenders to Borrower,
U.S. Borrower and Australian Borrower pursuant to the Combined Loan Documents.
"Combined Required Lenders" means Combined Lenders having in the aggregate
51% of the aggregate total Combined Commitments under the Combined Loan
Documents.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans, as such commitment may be (a) reduced from time to time
pursuant to Section 2.8,
5
(b) reduced or increased from time to time pursuant to Section 2.6 or pursuant
to assignments by or to such Lender pursuant to Section 10.4 and (c) terminated
pursuant to Sections 4.1, 8.2 or 8.3. The amount of the Commitment represents
such Lender's maximum Credit Exposure hereunder. The initial amount of each
Lender's Commitment is set forth on Schedule 2.1, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$150,000,000.
"Commitment Utilization Margin" means, on any date, if the Combined
Commitment Utilization is less than 50%, then an amount equal to zero basis
points per annum (0.00 bps) and, if the Combined Commitment Utilization is
greater than or equal to 50%, then an amount equal to 10.00 basis points per
annum. Changes in the Commitment Utilization Margin will occur automatically
without prior notice.
"Competitive Loan" shall have the meaning set forth in the U.S. Credit
Agreement.
"Consolidated Assets" means the total assets of the Parent and its
subsidiaries which would be shown as assets on a consolidated balance sheet of
Parent and its subsidiaries prepared in accordance with GAAP.
"Consolidated Tangible Net Worth" means (i) the consolidated shareholder's
equity of Parent and its Subsidiaries (determined in accordance with GAAP), less
(ii) the amount of consolidated intangible assets of Parent and its
Subsidiaries, plus (iii) the aggregate amount of any non-cash write downs, on a
consolidated basis, by Parent and its Subsidiaries during the term hereof.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Lender's Loans at such time.
"Debt" of any Person means indebtedness, including capital leases, shown
as debt on a consolidated balance sheet of such Person prepared in accordance
with GAAP.
"Declining Lenders" is defined in Section 2.6(c).
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of America.
"Environmental Laws" means all applicable federal, state, provincial,
territorial or local statutes, laws, ordinances, codes, rules and regulations
(including consent decrees and administrative orders) relating to public health
and safety and protection of the environment
6
(including, for example and without limitation, the Environmental Protection and
Enhancement Act (Alberta) and the Canadian Environmental Protection Act).
"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.
"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 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 federal, or any provincial or territorial, government of
Canada, 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 federal, or any provincial or territorial,
government of Canada or any similar tax imposed by any other jurisdiction in
which Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.16(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from Borrower with respect
to such withholding tax pursuant to Section 2.16(a).
"Existing Global Credit Facilities" means (i) that certain Credit
Agreement [U.S. Credit Agreement], dated as of June 3, 2002, among Apache
Corporation, the lenders party thereto, JPMorgan Chase Bank, as global
administrative agent, and the other agents party thereto, (ii) that certain
Credit Agreement [Australian Credit Agreement], dated as of June 3, 2002, among
Apache Energy Limited (ACN 009 301 964), the lenders party thereto, JPMorgan
Chase Bank, as global administrative agent, and the other agents party thereto,
and (iii) that certain Credit Agreement [Canadian Credit Agreement], dated as of
June 3, 2002, among Apache Canada Ltd., the lenders party thereto, JPMorgan
Chase Bank, as global administrative agent, and the other agents party thereto.
"Facility Fee" is defined in Section 2.11(a).
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"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.
"Foreign Lender" means any Lender that is a non-resident of Canada for
purposes of the Income Tax Act (Canada). For purposes of this definition, Canada
and each province and territory thereof shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent with the most recent financial
statements of Parent, Borrower and their Subsidiaries delivered to the Lenders
pursuant to the Combined Loan Documents.
"Global Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as global administrative agent for the Combined Lenders.
"Global Effective Date" means a date agreed upon by Parent, Borrower, the
Canadian Administrative Agent and the Global Administrative Agent as the date on
which the conditions specified in Section 4.1 of each Combined Credit Agreement
are satisfied (or waived in accordance with Section 10.2 of each Combined Credit
Agreement).
"Global Effectiveness Notice" means a notice and certificate of Parent and
Borrower properly executed by an Authorized Officer of Parent and Borrower,
respectively, addressed to the Combined Lenders and delivered to the Global
Administrative Agent and the Canadian Administrative Agent, in sufficient number
of counterparts to provide one for each such lender and each agent under each
Combined Credit Agreement, whereby Parent certifies satisfaction of all the
conditions precedent to the effectiveness under Section 4.1 of each Combined
Credit Agreement.
"Governmental Authority" means the government of Canada, any other nation
or any political subdivision thereof, whether state, provincial, territorial or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guaranty" means that certain Guaranty, dated as of May 12, 2005, by
Parent in favor of the Lenders and the other Lender Parties (as defined
therein), in substantially the form of Exhibit F or any other form approved by
the Global Administrative Agent and the Canadian Administrative Agent, as such
Guaranty may from time to time be amended, supplemented, restated, reaffirmed or
otherwise modified.
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"Hazardous Material" means (a) any "hazardous substance," as defined by
CERCLA; (b) any "hazardous waste," as defined by the Resource Conservation and
Recovery Act; or (c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
Environmental Law.
"Indebtedness" of any Person means all (i) Debt, and (ii) guaranties or
other contingent obligations in respect of the Debt of any other Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, non-credit enhanced, long-term
indebtedness for borrowed money of Parent that is not guaranteed by any other
Person or subject to any other credit enhancement.
"Interest Election Request" means a request by Borrower to convert or
continue a Borrowing in accordance with Section 2.7, in substantially the form
of Exhibit E or any other form approved by the Global Administrative Agent and
the Canadian Administrative Agent.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, and (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.
"Interest Period" means the period commencing on the date of any
Eurodollar Borrowing and ending on the numerically corresponding day, or, with
the consent of the Canadian Administrative Agent, such other day, in the
calendar month that is one, two, three or six months (or, with the consent of
each Lender, nine or twelve months) thereafter, as Borrower may elect, provided,
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Judgment Currency" is defined in Section 2.19(b).
"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
9
comparable to those currently provided on such page of such Service, as
reasonably determined by the Global Administrative Agent, the Canadian
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 (rounded upwards, if necessary, to the next 1/16 of 1%) at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Global Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means any mortgage, pledge, lien, encumbrance, charge, or security
interest of any kind, granted or created to secure Indebtedness; provided,
however, that, with respect to any prohibitions of Liens on Property, the
following transactions shall not be deemed to create a Lien to secure
Indebtedness; (i) production payments and (ii) liens provided by statute and
created in favor of Canadian governmental entities to secure partial, progress,
advance, or other payments intended to be used primarily in connection with air
or water pollution control.
"Loan Document" means this Agreement, the Guaranty, any Borrowing Request,
any Interest Election Request, any Certificate of Extension, any 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.
"Material Adverse Effect" means, as to any matter, that such matter could
reasonably be expected to materially and adversely affect the assets, business,
properties, condition (financial or otherwise) of Parent and its Subsidiaries
taken as a whole. No matter shall be considered to result, or be expected to
result, in a Material Adverse Effect unless such matter causes Parent and its
Subsidiaries, on a consolidated basis, to suffer a loss or incur a cost equal to
at least ten percent (10%) of Parent's Consolidated Tangible Net Worth.
"Maturity Date" means the Original Maturity Date, or such other later date
as may result from any extension requested by Borrower and Parent and consented
to by some or all of the Lenders pursuant to Section 2.6.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto
that is a nationally recognized rating agency in the United States.
"Obligations" means, at any time, the sum of (i) the outstanding principal
amount of any Loans plus (ii) all accrued and unpaid interest and Facility Fees
plus (iii) all other obligations of Borrower or any Subsidiary to any Lender or
any Agent, whether or not contingent, arising under or in connection with any of
the Loan Documents.
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"Original Maturity Date" means May 12, 2010.
"Other Currency" is defined in Section 2.19(a).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Parent" means Apache Corporation, a corporation organized under the laws
of the State of Delaware.
"Person" means any natural person, corporation, limited liability company,
unlimited liability company, joint venture, partnership, firm, association,
trust, government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Property" means (i) any property owned or leased by Borrower or any
Subsidiary, or any interest of Borrower or any Subsidiary in property, which is
considered by Borrower to be capable of producing oil, gas, or minerals in
commercial quantities, (ii) any interest of Borrower or any Subsidiary in any
refinery, processing or manufacturing plant owned or leased by Borrower or any
manufacturing plant owned or leased by Borrower or any Subsidiary, (iii) any
interest of Borrower or any Subsidiary in all present and future oil, gas, other
liquid and gaseous hydrocarbons, and other minerals now or hereafter produced
from any other Property or to which Borrower or any Subsidiary may be entitled
as a result of its ownership of any Property, and (iv) all real and personal
assets owned or leased by Borrower or any Subsidiary used in the drilling,
gathering, processing, transportation, or marketing of any oil, gas, and other
hydrocarbons or minerals, except (a) any such real or personal assets related
thereto employed in transportation, distribution or marketing or (b) any
interest of Borrower or any Subsidiary in, any refinery, processing or
manufacturing plant, or portion thereof, which property described in clauses (a)
or (b), in the opinion of the Board of Directors of Borrower, is not a principal
plant or principal facility in relation to the activities of Borrower and its
Subsidiaries taken as a whole.
"Register" has the meaning set forth in Section 10.4.
"Regulation U" means any of Regulations T, U or X of the Board of
Governors of the Federal Reserve System of the United States from time to time
in effect and shall include any successor or other regulations or official
interpretations of said Board or any successor Person relating to the extension
of credit for the purpose of purchasing or carrying margin stocks applicable to
member banks of the Federal Reserve System or any successor Person.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Replacement Lenders" is defined in Section 2.6(c)(ii).
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"Required Lenders" means Lenders having in the aggregate 51% of the
aggregate total Commitments, or, if the Commitments have been terminated,
Lenders holding 51% of the aggregate unpaid principal amount of the outstanding
Obligations.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 690, et seq., as amended from time to time.
"Restricted Subsidiary" means any Subsidiary of Borrower or Parent that
owns any asset representing or consisting of an entitlement to production from,
or other interest in, reserves of oil, gas or other minerals in place located in
the United States, Canada or Australia, including, without limitation, with
respect to the Parent, the Borrower and the Australian Borrower, or is otherwise
designated as such by Parent in writing to the Global Administrative Agent.
"S&P" means Standard & Poor's and any successor thereto that is a
nationally-recognized rating agency in the United States.
"subsidiary" means, with respect to any Person, any corporation or other
similar entity of which more than 50% of the outstanding capital stock (or other
equity) having ordinary voting power to elect a majority of the Board of
Directors of such corporation or entity (irrespective of whether or not at the
time capital stock or any other class or classes of such corporation or entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person.
"Subsidiary" means any subsidiary of Borrower or Parent; provided,
however, that in all events the following Persons shall not be deemed to be
Subsidiaries of the Parent or any of its Subsidiaries: Apache Offshore
Investment Partnership, a Delaware general partnership, Apache Offshore
Petroleum Limited Partnership, a Delaware limited partnership, Main Pass 151
Pipeline Company, a Texas general partnership, and Apache 681/682 Joint Venture,
a Texas joint venture.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by Borrower
of this Agreement and the other Loan Documents, the borrowing of Loans and the
use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBO Rate or the Alternate Base 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.
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"U.S. Base Rate" means the rate of interest per annum announced from time
to time by the Canadian Administrative Agent as the reference rate used by it
for determining interest rates charged on U.S. Dollar commercial loans made in
Canada; each change in the U.S. Base Rate shall be effective from and including
the date such change is announced as being effective.
"U.S. Borrower" means Apache Corporation, a Delaware corporation, and each
other Person that becomes a borrower under the U.S. Credit Agreement.
"U.S. Credit Agreement" means that certain Credit Agreement of even date
herewith among the U.S. Borrower, the U.S. Lenders, the Global Administrative
Agent, and the other agents party thereto, as it may be amended, supplemented,
restated or otherwise modified and in effect from time to time.
"U.S. Lenders" means the financial institutions listed on the signature
pages of the U.S. Credit Agreement and their respective successors and assigns.
"U.S. Loan Documents" means the U.S. Credit Agreement, any notes, any
assignment agreements, and the agreement with respect to fees, together with all
exhibits, schedules and attachments thereto, and all other agreements,
documents, certificates, financing statements and instruments from time to time
executed and delivered pursuant to or in connection with any of the foregoing.
SECTION 1.2 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a "Eurodollar
Loan"). Borrowings also may be classified and referred to by Type (e.g., a
"Eurodollar 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 Canadian
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Administrative Agent and the Global Administrative Agent that Borrower requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Canadian Administrative Agent and the
Global Administrative Agent notify Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.1 Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans in U.S. Dollars to Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in (a) such Lender's Credit Exposure exceeding such Lender's
Commitment or (b) the Credit Exposures exceeding the total Commitments. Subject
to the conditions set forth herein, Borrower may borrow, prepay and reborrow
Loans. Apache Canada and any Additional Borrowers shall be jointly and severally
liable for all Obligations.
SECTION 2.2 Loans and Borrowings.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar 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
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 Loans made in connection therewith). At the time that
each ABR 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 Loans made in connection therewith);
provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments. Borrowings of more than one
Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of ten (10) Eurodollar Borrowings outstanding.
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(d) Notwithstanding any other provision of this Agreement, Borrower shall
not be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.3 Requests for Borrowings. To request a Borrowing, Borrower
shall notify the Canadian Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 1:00 p.m., Toronto time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than noon, Toronto 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 Canadian
Administrative Agent of a written Borrowing Request in a form approved by the
Canadian 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 Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar 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 Canadian
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.4 [Intentionally omitted].
SECTION 2.5 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 1:00
p.m., Toronto time, to the account of the Canadian Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Canadian 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
Canadian Administrative Agent executed by two Authorized Officers of Apache
Canada and two Authorized Officers of any Additional Borrower.
(b) Unless the Canadian Administrative Agent shall have received notice
from a Lender prior to the proposed time of any Borrowing that such Lender will
not make available to the Canadian
15
Administrative Agent such Lender's share of such Borrowing, the Canadian
Administrative Agent may assume that such Lender has made such share available
on the requested date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Canadian Administrative Agent, then the
applicable Lender and Borrower severally agree to pay to the Canadian
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 Canadian Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate or a rate determined by the Canadian Administrative Agent in
accordance with banking industry rules in Canada 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 Canadian Administrative Agent,
then such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.6 Extension of Maturity Date and of Commitments.
(a) Subject to the other provisions of this Agreement and provided that no
Event of Default has occurred and is continuing, the total Commitments shall be
effective for an initial period from the Global Effective Date to the Original
Maturity Date; provided that the Maturity Date, and concomitantly the total
Commitments, may be extended for successive one year periods expiring on the
date which is one (1) year from the then scheduled Maturity Date. If Parent and
Borrower shall request in a Certificate of Extension delivered to the Canadian
Administrative Agent and the Global Administrative Agent at least 45 days prior
to a date which is an anniversary of the Global Effective Date that the Maturity
Date be extended for one year from the then scheduled Maturity Date, then the
Canadian Administrative Agent shall promptly notify each Lender of such request
and each Lender shall notify the Canadian 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 Canadian
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 Canadian Administrative Agent pursuant to
clause (a) of this Section 2.6 of their agreement to extend the Maturity Date,
then the Canadian Administrative Agent shall so notify the Global Administrative
Agent, each Lender and Borrower, and such extension shall be effective without
other or further action by any party hereto for such additional one year period.
(c) If Lenders constituting at least the Required Lenders approve the
extension of the then scheduled Maturity Date (such Lenders agreeing to extend
the Maturity Date herein called the "Accepting Lenders") and if one or more
Lenders shall notify, or be deemed to notify, the Canadian 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 Canadian Administrative Agent shall promptly so notify Borrower and
the Accepting Lenders, (B) the Accepting Lenders shall, upon Borrower's election
to extend the then
16
scheduled Maturity Date in accordance with clause (i) or (ii) below, extend the
then scheduled Maturity Date and (C) Borrower shall, pursuant to a notice
delivered to the Canadian 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 Canadian 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 Canadian 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 Canadian 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 Canadian Administrative Agent and the Global
Administrative Agent (which shall promptly notify the Lenders thereof) no
later than the tenth (10th) day following the date by which 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 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 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
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.
(b) To make an election pursuant to this Section, Borrower shall notify
the Canadian Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.3 if Borrower were
requesting a Borrowing 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 Canadian 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".
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.
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(d) Promptly following receipt of an Interest Election Request, the
Canadian 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 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 Canadian 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 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
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 Credit Exposures would exceed the total Commitments.
(c) Borrower shall notify the Canadian 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 Canadian 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 Canadian
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.9 Repayment of Loans; Evidence of Debt.
(a) Borrower hereby unconditionally promises to pay to the Canadian
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Maturity Date or, if earlier, the date on which the
Commitment of such Lender relating to such Loan is terminated (except for
termination of the Commitment of the assigning Lender pursuant to Section
10.4(b)).
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(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 Canadian Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the 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 Canadian
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 Canadian 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 Canadian Administrative Agent and the Global Administrative
Agent). Thereafter, the Loans evidenced by such promissory notes and interest
thereon shall at all times (including after assignment pursuant to Section 10.4)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if any such promissory note is a registered
note, to such payee and its registered assigns).
SECTION 2.10 Prepayment of Loans.
(a) Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to prior notice in accordance
with paragraph (b) of this Section.
(b) Borrower shall notify the Canadian Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 1:00 p.m., Toronto time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than noon, Toronto 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, the Canadian Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.2. Each prepayment of a Borrowing
shall be applied ratably to the
20
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 Canadian 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 Credit Exposure after its
Commitment terminates, then such Facility Fee shall continue to accrue on the
daily amount of such Lender's Credit Exposure from and including the date on
which its Commitment terminates to but excluding the date on which such Lender
ceases to have any Credit Exposure. Accrued Facility Fees shall be payable in
arrears on the first day of April, July and October and the second day of
January of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any Facility Fees accruing after the date on which the Commitments terminate
shall be payable on demand. All Facility Fees shall be computed on the basis of
a year of 365 days (or 366 days in a leap year) and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) Borrower agrees to pay to the Canadian Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between Borrower and the Canadian Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Canadian Administrative Agent for
distribution, in the case of Facility Fees, to the Lenders. Fees paid shall not
be refundable under any circumstances.
SECTION 2.12 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest on the
daily amount outstanding at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest on
the daily amount outstanding at the LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by Borrower hereunder is not paid when
due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding 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.
21
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and on the Maturity Date; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar 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.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base 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 or LIBO Rate shall be determined by the Canadian Administrative Agent,
and such determination shall be conclusive absent demonstrable error.
(f) Interest Act Waiver. To the extent permitted by applicable law, any
provision of the Interest Act (Canada) or the Judgment Interest Act (Alberta)
which restricts any rate of interest set forth herein shall be inapplicable to
this Agreement and is hereby waived by Borrower.
(g) Nominal Rate. The theory of deemed reinvestment shall not apply to the
calculation of interest or payment of fees or other amounts hereunder,
notwithstanding anything contained in this Agreement, acceptance or other
evidence of indebtedness or in any other Loan Document now or hereafter taken by
any Agent or any Lender for the obligations of Borrower under this Agreement, or
any other instrument referred to herein, and all interest and fees payable by
Borrower to the Lenders, shall accrue from day to day, computed as described
herein in accordance with the "nominal rate" method of interest calculation.
(h) Interest Act. Where, in this Agreement, a rate of interest or fees is
to be calculated on the basis of a 360-day year, such rate is, for the purpose
of the Interest Act (Canada), equivalent to the said rate (i) multiplied by the
actual number of days in the one year period beginning on the first day of the
period of calculation and (ii) divided by 360.
SECTION 2.13 Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(i) the Canadian Administrative Agent determines (which
determination shall be conclusive absent demonstrable error) that adequate
and reasonable means do not exist for ascertaining the LIBO Rate for such
Interest Period; or
(ii) the Canadian Administrative Agent is advised by the Required
Lenders that the LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
22
then the Canadian Administrative Agent shall give notice thereof to Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Canadian 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 Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that 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; or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar 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 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.
(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
23
such Lender's intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.15 Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar 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 Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice may be revoked under Section 2.10(b) and is
revoked in accordance therewith) or (d) the assignment of any Eurodollar 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 LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive,
together with the calculation thereof, pursuant to this Section shall be
delivered to Borrower and to the Canadian Administrative Agent and shall be
conclusive absent demonstrable error. Borrower shall pay to the Canadian
Administrative Agent for the account of such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.16 Taxes.
(a) Any and all payments by or on account of any obligation of Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if Borrower shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Canadian Administrative Agent, the Global Administrative Agent
or Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Borrower shall pay the Canadian Administrative Agent, the Global
Administrative Agent and each Lender, within 10 days after written demand
therefor, the full
24
amount of any Indemnified Taxes or Other Taxes paid by the Canadian
Administrative Agent, the Global Administrative Agent or such Lender, as the
case may be, on or with respect to any payment by or on account of any
obligation of Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto (other than any such penalties or interest arising through the
failure of the Canadian Administrative Agent, the Global Administrative Agent or
Lender to act as a reasonably prudent agent or lender, respectively), whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to Borrower by a Lender, or by either the
Canadian Administrative Agent or the Global Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent demonstrable error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by Borrower to a Governmental Authority, Borrower shall deliver to the
Canadian 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 Canadian 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
Canadian 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., Toronto time, on the date
when due, in immediately available funds, without set-off or counterclaim. All
such payments shall be made to the Canadian Administrative Agent, 200 Bay
Street, 12th floor, South Tower, Toronto, Ontario, M5J 2W7, attention: Agency
Services Group, telephone (416) 842-3901, facsimile: (416) 842-4023, except that
payments pursuant to Sections 2.14, 2.16 and 10.3 shall be made directly to the
Persons entitled thereto. The Canadian Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Canadian 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
25
then due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties. If insufficient funds are
received due to Borrower's entitlement to withhold amounts on account of
Excluded Taxes in relation to a particular Lender, such insufficiency shall not
be subject to this Section 2.17(b) but shall be withheld from and shall only
affect payments made to such Lender.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). 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 Canadian Administrative Agent shall have received notice
from Borrower prior to the date on which any payment is due to the Canadian
Administrative Agent for the account of the Lenders hereunder that Borrower will
not make such payment, the Canadian 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 Canadian 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 Canadian Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Canadian Administrative Agent in accordance with banking industry rules in
Canada 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 Canadian Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Canadian 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.
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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 Canadian Administrative Agent 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 to an assignee designated by
Borrower and 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 Canadian Administrative Agent and the Global Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or Borrower (in the case of all other amounts), (iii)
the assignee and assignor shall have entered into an Assignment and Acceptance,
and (iv) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments.
SECTION 2.19 Currency Conversion and Currency Indemnity.
(a) Payments in Agreed Currency. Borrower shall make payment relative to
any Obligation in the currency (the "Agreed Currency") in which the Obligation
was effected. If any payment is received on account of any Obligation in any
currency (the "Other Currency") other than the Agreed Currency (whether
voluntarily or pursuant to an order or judgment or the enforcement thereof or
the realization of any security or the liquidation of Borrower or otherwise
howsoever), such payment shall constitute a discharge of the liability of
Borrower hereunder and under the other Loan Documents in respect of such
obligation only to the extent of the amount of the Agreed Currency which the
relevant Lender or Agent, as the case may be, is able to purchase with the
amount of the Other Currency received by it on the Business Day next following
such receipt in accordance with its normal procedures and after deducting any
premium and costs of exchange.
27
(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 not a non-resident
of Canada for purposes of the Income Tax Act (Canada) and which is domiciled in
Canada may become an Additional Borrower with respect hereto, and shall be bound
by and entitled to the benefits and obligations of this Agreement as a Borrower
hereunder to the same extent as any other Borrower, upon the fulfillment of the
following conditions:
(i) Resolutions and Officers' Certificates. Such Person shall
deliver all the items identified in Section 4.1(a) with respect to such
Person.
(ii) Certificate. An Authorized Officer of each Borrower shall have
delivered to the Global Administrative Agent and the Canadian
Administrative Agent a certificate stating that such Person is a
Restricted Subsidiary of the Parent which is not a non-resident of Canada
for purposes of the Income Tax Act (Canada) and which is domiciled in
Canada.
28
(iii) No Default. No Default or Event of Default shall have occurred
and be continuing.
(iv) Representations and Warranties. The representations and
warranties in Article III hereto are true and correct with respect to such
Person, mutatis mutandis, as of the date such Person executes the
Additional Borrower Counterpart described in clause (v) below.
(v) Additional Borrower Counterpart. Such Person shall execute an
Additional Borrower Counterpart to this Agreement, substantially in the
form of Exhibit G (the "Additional Borrower Counterpart") or such other
agreement in form and substance satisfactory to the Global Administrative
Agent and the Canadian Administrative Agent.
(vi) Opinions of Counsel. The Global Administrative Agent and the
Canadian Administrative Agent shall have received legal opinions, dated as
of the date such Person executes the Additional Borrower Counterpart
described above, addressed to the Agents and the Lenders, having
substantially the same coverage as those opinions attached hereto as
Exhibits A and B and in form and substance acceptable to the Global
Administrative Agent and the Canadian Administrative Agent, in their
reasonable discretion.
(vii) Approval. The Global Administrative Agent and the Canadian
Administrative Agent shall have approved the addition of such Person as an
Additional Borrower, such approval not to be unreasonably withheld.
(viii) Identification Requirements. Such Person shall provide such
evidence as is reasonably requested by either Global Administrative Agent
or the Canadian Administrative Agent, on behalf of itself or any Lender,
to comply with all necessary "know your customer" or other similar checks
under all applicable laws and regulations.
(ix) Notice. The Global Administrative Agent, the Canadian
Administrative Agent and each Lender shall have received prior written
notice from an Authorized Officer of each then current Borrower of an
Additional Borrower becoming party to this Agreement at least five (5)
Business Days prior to the date selected for such Additional Borrower to
become party to this Agreement.
(b) Upon fulfillment of the conditions in this Section 2.20(a), the Global
Administrative Agent will promptly notify each Lender of the date that such
Person becomes an Additional Borrower hereunder.
ARTICLE III
Representations and Warranties
In order to induce the Lenders and the Agents to enter into this Agreement
and the Lenders to make Loans hereunder, Borrower represents and warrants unto
the Agents and each Lender as set forth in this Article III.
29
SECTION 3.1 Organization. Borrower and each of its Subsidiaries is a
corporation or other legal entity, in either case duly incorporated or otherwise
properly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite authority,
permits and approvals, and is in good standing to conduct its business in each
jurisdiction in which its business is conducted where the failure to so qualify
would have a Material Adverse Effect.
SECTION 3.2 Authorization and Validity. The execution, delivery and
performance by Borrower of this Agreement and each other Loan Document executed
or to be executed by it, are within Borrower's corporate or partnership powers,
as applicable, have been duly authorized by all necessary corporate or
partnership action on behalf of it, and do not (a) contravene Borrower's
articles of incorporation or other organizational documents, as the case may be;
(b) contravene any material contractual restriction, law or governmental
regulation or court decree or order binding on or affecting Borrower or any
Subsidiary; or (c) result in, or require the creation or imposition of, any
Lien, not permitted by Section 7.1, on any of Borrower's or any Subsidiary's
properties. This Agreement constitutes, and each other Loan Document executed by
Borrower will, on the due execution and delivery thereof, constitute, the legal,
valid and binding obligations of Borrower enforceable in accordance with their
respective terms subject as to enforcement only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditor rights generally and to general principles of equity.
SECTION 3.3 Government Approval and Regulation. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by Borrower of this Agreement or any other Loan
Document. Neither Parent or Borrower nor any of their Subsidiaries is an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 3.4 Unfunded Pension Liabilities. The unfunded pension or similar
liabilities of Parent, Borrower and their Subsidiaries do not in the aggregate
exceed $100,000,000.
SECTION 3.5 Regulation U. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a purpose which violates, or would be
inconsistent with, Regulation U. Terms for which meanings are provided in
Regulations U are used in this Section with such meanings.
SECTION 3.6 Taxes. Borrower and each of its Subsidiaries has to the best
knowledge of Borrower after due investigation filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside
30
on its books or which the failure to file or pay could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.7 Subsidiaries; Restricted Subsidiaries. Schedule 3.7 hereto
contains an accurate list of all of the presently existing Subsidiaries,
including, without limitation, Restricted Subsidiaries, of Borrower as of the
date of this Agreement, setting forth their respective jurisdictions of
incorporation or organization and the percentage of their respective capital
stock or, the revenue share attributable to the general and limited partnership
interests, as the case may be, owned by Borrower or other Subsidiaries. All of
the issued and outstanding shares of capital stock of such Subsidiaries which
are corporations have been duly authorized and issued and are fully paid and
non-assessable.
ARTICLE IV
Conditions
SECTION 4.1 Effectiveness. This Agreement shall become effective upon the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Section 4.1.
(a) Resolutions and Officers Certificates. The Canadian Administrative
Agent and the Global Administrative Agent shall have received from
Borrower a certificate, dated the Global Effective Date, of the
Secretary or Assistant Secretary of Borrower as to (i) resolutions
of its governing board, then in full force and effect 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 Canadian Administrative Agent and the
Global Administrative Agent shall have received a certificate,
signed by an Authorized Officer of Parent and Borrower, stating that
either (i) Parent or its Subsidiaries have repaid in full and
terminated the Existing Global Credit Facilities concurrently with
the effectiveness of the Combined Credit Agreements or (ii) the
Existing Global Credit Facilities have been terminated in full prior
to the effectiveness of the Combined Credit Agreements .
(c) Opinions of Counsel. The Global Administrative Agent shall have
received opinions, dated the Global Effective Date, addressed to the
Canadian Administrative Agent and the Global Administrative Agent,
the other Agents and all Lenders, from (i) Bennett Jones LLP,
counsel to Borrower, in substantially the form attached hereto as
Exhibit A, and (ii) Thompson & Knight LLP, U.S. counsel to Borrower,
in substantially the form attached hereto as Exhibit B.
31
(d) Closing Fees and Expenses. The Canadian 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 Canadian Administrative Agent and the
Global Administrative Agent shall have received a certificate,
signed by an Authorized Officer of Borrower, stating that (i) the
audited consolidated financial statements of Parent and its
Subsidiaries for fiscal year 2004 and (ii) the report and
accompanying financial statements of Parent, Borrower and its
Subsidiaries for fiscal year 2004 (collectively, the "2004
Financials") fairly present Parent's and Borrower's consolidated
financial condition and results of operations and that prior to the
Global Effective Date no material adverse change in the condition or
operations of Parent or Borrower and its Subsidiaries, taken as a
whole, from that reflected in the 2004 Financials has occurred and
is continuing.
(f) Environmental Warranties. In the ordinary course of its business,
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 Canadian Administrative Agent and 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 Canadian Administrative Agent and
the Global Administrative Agent shall have received the Global
Effectiveness Notice.
(h) Other Combined Credit Agreements. The Canadian Administrative Agent
shall have received copies of the executed (i) U.S. Credit Agreement
and the other U.S. Loan Documents and (ii) Australian Credit
Agreement and the other Australian Loan Documents.
(i) Guaranty. The Canadian Administrative Agent and the Global
Administrative Agent shall have received an executed Guaranty for
Borrower.
(j) Litigation. The Canadian Administrative Agent and Global
Administrative Agent shall have received a certificate, signed by an
Authorized Officer of Parent,
32
stating that no litigation, arbitration, governmental proceeding,
Tax claim dispute or administrative or other proceeding shall be
pending or, to the knowledge of Parent, threatened against Parent or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which purports to affect the legality,
validity or enforceability of this Agreement or any other Loan
Document.
(k) Other Documents. The Canadian Administrative Agent and the Global
Administrative Agent shall have received such other instruments and
documents as any of the Agents or their counsel may have reasonably
requested.
The Canadian Administrative Agent shall notify Borrower, the other Agents and
the Lenders of the Global Effective Date, and such notice shall be conclusive
and binding. Notwithstanding the foregoing, the obligations of the Lenders to
make Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00
p.m., Toronto time, on May 31, 2005 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.2 All Loans. The obligation of each Lender to fund any Loan
which results in an increase in the aggregate outstanding principal amount of
Loans under this Agreement on the occasion of any Borrowing shall be subject to
the satisfaction of each of the conditions precedent set forth in this Section
4.2.
(a) Compliance with Warranties and No Default. Both before and after
giving effect to any Borrowing, the following statements shall be
true and correct: (1) the representations and warranties set forth
in Article III shall be true and correct with the same effect as if
then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct as of such earlier date); and (b) no Default or Event of
Default shall have then occurred and be continuing.
(b) Borrowings. The Canadian Administrative Agent shall have received a
Borrowing Request for any Borrowing.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and all Obligations
shall have been paid in full and unless the Required Lenders shall otherwise
consent in writing, Borrower covenants and agrees with the Lenders that:
SECTION 5.1 Financial Reporting and Notices. Borrower will furnish, will
cause to be furnished or will assist Parent in furnishing, to each Lender, the
Canadian Administrative Agent and the Global Administrative Agent copies of the
following financial statements, reports, notices and information:
33
(a) within 90 days after the end of each Fiscal Year of Borrower, a copy
of the financial statements for Borrower and its Subsidiaries for
such fiscal year, including therein consolidated balance sheets of
Borrower and its Subsidiaries as of the end of such fiscal year and
consolidated statements of earnings and cash flow of Borrower and
its Subsidiaries for such fiscal year, all prepared in accordance
with GAAP in each case certified by an Authorized Officer of
Borrower, such signature deemed to be a certification that such
financial statements present fairly in accordance with GAAP the
financial position of Borrower and its Subsidiaries;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of Borrower commencing with the fiscal
quarter ending June 30, 2005, unaudited consolidated balance sheets
of Borrower and its Subsidiaries as of the end of such fiscal
quarter and consolidated statements of earnings and cash flow of
Borrower and its Subsidiaries for such fiscal quarter and for the
period commencing at the end of the previous fiscal year and ending
with the end of such fiscal quarter, all prepared in accordance with
GAAP certified by an Authorized Officer of Borrower, such signature
deemed to be a certification that such financial statements present
fairly in accordance with GAAP the financial position of Borrower
and its Subsidiaries;
(c) together with the financial statements described in (a) and (b)
above, a compliance certificate, in substantially the form of
Exhibit C or any other form approved by the Canadian Administrative
Agent and the Global Administrative Agent, executed by an Authorized
Officer of Parent, an Authorized Officer of Apache Canada and an
Authorized Officer of any Additional Borrower;
(d) within five (5) days after the occurrence of each Default, a
statement of an Authorized Officer of Parent and an Authorized
Officer of Borrower setting forth details of such Default and the
action which Parent and Borrower have taken and propose to take with
respect thereto;
(e) promptly after the sending or filing thereof, copies of all material
public filings, reports and communications from Parent or Borrower,
and all reports and registration statements which Parent or Borrower
or any of their Subsidiaries files with the Securities and Exchange
Commission, any national securities exchange or any federal or
provincial securities regulatory body in Canada;
(f) such other information respecting the financial condition or
operations of Borrower or any of its Subsidiaries as any Lender
through the Canadian 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.
34
SECTION 5.3 Maintenance of Properties. Borrower will, and will cause each
of its Subsidiaries to, maintain, preserve, protect and keep valid title to, or
valid leasehold interest in, all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges or claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to Section 7.1
and except for imperfections and other burdens of title thereto as do not in the
aggregate materially detract from the value thereof or for the use thereof in
their businesses (taken as a whole).
SECTION 5.4 Insurance. Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies (subject to self-insured retentions) insurance with respect to its
properties and business against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses.
SECTION 5.5 Books and Records. Borrower will, and will cause each of its
Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions and permit the Canadian Administrative Agent
or the Global Administrative Agent and the other Agents and each Lender through
the Canadian Administrative Agent or the Global Administrative Agent or any of
their respective authorized representatives, during normal business hours and at
reasonable intervals, to visit all of its offices, to discuss its financial
matters with its officers and to examine (and, at the expense of the Canadian
Administrative Agent, the Global Administrative Agent or such other Agent or
Lender or, if a Default or Event of Default has occurred and is continuing, at
the expense of Borrower, photocopy extracts from) any of its books or other
records.
SECTION 5.6 [Intentionally omitted].
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 or (ii) for Borrower's and its Subsidiaries'
general corporate or partnership purposes, including any non-hostile
acquisitions.
ARTICLE VI
Financial Covenants
Until the Commitments have expired or been terminated and all Obligations
shall have been paid in full and unless the Required Lenders shall otherwise
consent in writing, Borrower covenants and agrees with the Lenders that:
SECTION 6.1 Ratio of Total Debt to Capital. Parent will not permit its
ratio (expressed as a percentage) of (i) the consolidated Debt of Parent and its
Subsidiaries to (ii) Capital to be greater than 60% at the end of any fiscal
quarter beginning with the fiscal quarter ending June 30, 2005.
35
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, to Parent or to
another Restricted Subsidiary or Liens on assets of an
Unrestricted Subsidiary securing Indebtedness of an Unrestricted
Subsidiary owing to Borrower, to Parent, to a Restricted
Subsidiary or to another Unrestricted Subsidiary;
(v) Liens existing on the Global Effective Date set forth on Schedule
7.1;
(vi) Liens arising under operating agreements;
(vii) Liens reserved in oil, gas and/or mineral leases for bonus rental
payments and for compliance with the terms of such leases;
(viii) Liens pursuant to partnership agreements, oil, gas and/or mineral
leases, farm-out agreements, division orders, contracts for the
sale, delivery, purchase, exchange, or processing of oil, gas
and/or other hydrocarbons, unitization and pooling declarations
and agreements, operating agreements, development agreements,
area of mutual interest agreements, forward sales of oil, natural
gas and natural gas liquids, and other agreements which are
customary in the oil, gas and other mineral exploration,
development and production business and in the business of
processing of gas and gas condensate production for the
extraction of products therefrom;
36
(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;
(xiv) Liens or any rights of distress reserved in or exercisable under
any lease or sublease to which it is a lessee which secure the
payment of rent or compliance with the terms of such lease or
sublease, provided that such rent is not then overdue and it is
then in compliance in all material respects with such terms;
(xv) Liens in favor of a government or public authority within Canada
resulting from the deposit of cash or bonds as security for the
performance of any of its obligations (other than for the payment
of money) made in the ordinary course of its business, provided
that such security is required or requested pursuant to any
applicable law, and the obligations secured thereby are not
overdue (or if overdue are being contested by it diligently and
in good faith by appropriate proceedings);
(xvi) Liens to secure its performance in connection with bids or
tenders submitted by it, or contracts (other than contracts for
the payment of money) or leases of real property (other than
Capitalized Leases) or licenses to which it is a party, all such
Liens being granted in the ordinary course of its business,
provided that such performance obligations are not overdue (or if
overdue are being contested by it diligently and in good faith by
appropriate proceedings); and
(xvii) in addition to Liens permitted by clauses (i) through (xvi)
above, Liens on property or assets of Parent, Borrower and any of
their Subsidiaries if the aggregate Indebtedness of all such
Persons secured thereby does not exceed five percent (5%) of
Parent's Consolidated Assets; provided that nothing in this
definition shall in and of itself constitute or be deemed to
constitute an agreement or acknowledgment by the Global
Administrative Agent, the Canadian Administrative Agent or any
Lender that the Indebtedness subject to or secured by
37
any such Lien ranks (apart from the effect of any Lien included
in or inherent in any such Liens) in priority to the Obligations.
SECTION 7.2 Mergers. Borrower will not liquidate or dissolve, amalgamate
with, consolidate with, or merge into or with, any other Person, or sell, lease
or otherwise transfer all or substantially all of its assets unless (a) Borrower
is the survivor of such amalgamation, merger or consolidation, and (b) no
Default or Event of Default has occurred and is continuing or would occur after
giving effect thereto.
SECTION 7.3 Asset Dispositions. Borrower will not, and will not permit any
of its Restricted Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to all
or substantially all of its assets. Notwithstanding the foregoing, nothing
herein shall prohibit any transfer of any assets from any Borrower to any
Subsidiary of such Borrower, from any Subsidiary of a Borrower to such Borrower
or from a Subsidiary of a Borrower to another Subsidiary of such Borrower.
SECTION 7.4 Transactions with Affiliates. Borrower will not, and will not
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist any arrangement or contract with any of its other Affiliates unless such
arrangement or contract or group of arrangements or contracts, as the case may
be, are conducted on an arms-length basis.
SECTION 7.5 Restrictive Agreements. Borrower will not, and will not permit
any of its Subsidiaries to, enter into any agreement (excluding this Agreement
or any other Loan Document) limiting the ability of Borrower to amend or
otherwise modify this Agreement or any other Loan Document. Borrower will not,
and will not permit any of its Restricted Subsidiaries to, enter into any
agreement which restricts or prohibits the ability of any Restricted Subsidiary
to make any payments, directly or indirectly, to Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Restricted Subsidiary to make any payment, directly or indirectly,
to Borrower.
SECTION 7.6 Guaranties. Parent and Borrower will not, and will not permit
any of their Restricted Subsidiaries to, guaranty any Indebtedness not included
in the consolidated Debt of Parent and its Subsidiaries in an aggregate
outstanding principal amount at any time exceeding $100,000,000.
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
38
Days) in the payment when due of any interest, fee or of any other
obligation hereunder.
(b) Breach of Warranty. Any representation or warranty of Borrower made
or deemed to be made hereunder or in any other Loan Document or any
other writing or certificate furnished by or on behalf of Borrower
to the Global Administrative Agent, the Canadian Administrative
Agent, any other Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document is or
shall be false or misleading when made in any material respect.
(c) Non-Performance of Covenants and Obligations. Borrower or Parent
shall default in the due performance and observance of any of its
obligations under Section 7.2 or under Article VI.
(d) Non-Performance of Other Covenants and Obligations. Borrower or
Parent shall default in the due performance and observance of any
other agreement contained herein or in any other Loan Document, and
such default shall continue unremedied for a period of 30 days after
notice thereof shall have been given to Borrower by the Global
Administrative Agent, the Canadian Administrative Agent, or the
Required Lenders.
(e) Default on Other Indebtedness. A default shall occur in the payment
when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any direct payment obligation of
Parent, Borrower or any of their Restricted Subsidiaries in any
amount in excess of $100,000,000.
(f) [Intentionally omitted].
(g) 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, receiver and manager,
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, receiver and manager, 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, receiver and manager, 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, the Canadian Administrative Agent,
each other Agent and each Lender to appear in any court conducting
any relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents; (d) permit
or suffer to exist the commencement of any bankruptcy, insolvency,
reorganization, debt arrangement or other case or proceeding under
any
39
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of Borrower or any of its
Restricted Subsidiaries, and, if any such case or proceeding is not
commenced by Borrower or such Restricted Subsidiary, such case or
proceeding shall be consented to or acquiesced in by Borrower or
such Restricted Subsidiary or shall result in the entry of an order
for relief or shall remain for 60 days undismissed, provided that
Borrower and each Restricted Subsidiary hereby expressly authorizes
the Global Administrative Agent, the Canadian 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. Notwithstanding parts (c) and (d) of this Section 8.1(g),
during the 60 day periods referred to therein, and for the sole
purposes of (i) voting at any meeting of creditors of Borrower which
may take place during such 60 day period or (ii) having standing and
participating in proceedings or matters arising out of (c) or (d)
above where any Agent or Lender is acting to preserve, protect or
defend its rights under the Loan Documents, the Lenders, at their
sole option, shall be deemed to have accelerated repayment pursuant
to Section 8.3 and the Indebtedness of Borrower hereunder shall be
deemed to have become due and payable, but such deeming shall not of
itself be considered a Default hereunder.
(h) Judgments. Any judgment or order for the payment of money in an
amount of $100,000,000 or more in excess of valid and collectible
insurance in respect thereof or in excess of an indemnity with
respect thereto reasonably acceptable to the Required Lenders shall
be rendered against Parent, Borrower or any of their Restricted
Subsidiaries and either (a) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or (b) such
judgment shall have become final and non-appealable and shall have
remained outstanding for a period of 60 consecutive days.
(i) Change in Control. Parent shall fail to own or control, directly or
indirectly, all 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 U.S. Loan Documents or the Australian
Loan Documents shall occur; provided that the occurrence of a
"Default" as defined in the U.S. Loan Documents or the Australian
Loan Documents shall constitute a Default under this Agreement;
provided further that if such "Default" is cured or waived under the
U.S. Loan Documents or the Australian 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.
40
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 Canadian
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to Borrower declare all of the outstanding principal amount of the Loans
and all other obligations hereunder to be due and payable and the Commitments
(if not theretofore terminated) to be terminated, whereupon the full unpaid
amount of such Loans and other obligations shall be and become immediately due
and payable, without further notice, demand or presentment, and the Commitments
shall terminate.
ARTICLE IX
Agents
Each of the Lenders hereby irrevocably appoints JPMorgan Chase Bank as
Global Administrative Agent, Royal Bank of Canada as Canadian Administrative
Agent, Bank of Montreal and Union Bank of California, N.A., Canada Branch, as
Canadian Co-Syndication Agents, and The Toronto-Dominion Bank and BNP Paribas
(Canada) as Canadian Co-Documentation Agents, and authorizes each such Agent to
take such actions on its behalf and to exercise such powers as are delegated to
such Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
Any bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder.
The Agents shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) the
Agents shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) each Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that such Agent is required to exercise in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as expressly set
forth herein, each Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to Borrower or any
of its Subsidiaries that is communicated to or obtained by the bank serving as
such Agent or any of its Affiliates in any capacity. Each Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2) or in the absence of its own gross negligence or willful misconduct. Each
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to such Agent by Borrower or a Lender, and such
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity,
41
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to such Agent. None of the Persons identified
on the facing page of this Agreement as the "Co-Lead Arrangers and Joint
Bookrunners" (the "Arrangers"), the Canadian Co-Documentation Agents or the
Canadian Co-Syndication Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Combined
Loan Document other than, except in the case of the Arrangers, those applicable
to all Lenders as such.
The Canadian Administrative Agent, the Global Administrative Agent and the
other Agents shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. The Canadian Administrative Agent, the
Global Administrative Agent and the other Agents also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The
Canadian Administrative Agent, the Global Administrative Agent and the other
Agents may consult with legal counsel (who may be counsel for Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Any Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by such Agent. Any
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of such Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as an Agent.
Subject to the appointment and acceptance of a successor Global
Administrative Agent or Canadian Administrative Agent as provided in this
paragraph, the Global Administrative Agent or the Canadian 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 or
Canadian Administrative Agent gives notice of its resignation, then the retiring
Global Administrative Agent or Canadian Administrative Agent may, on behalf of
the Lenders, appoint a successor Global Administrative Agent or Canadian
Administrative Agent which shall be a bank with an office in New York, New York,
or Toronto, Canada, respectively, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Global Administrative Agent or Canadian
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Global Administrative Agent or Canadian Administrative Agent, and the
retiring Global Administrative Agent or Canadian Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by
Borrower to a successor Global Administrative Agent or Canadian Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between Borrower and such successor. After the Global
42
Administrative Agent's or Canadian Administrative Agent's resignation hereunder,
the provisions of this Article and Section 10.3 shall continue in effect for the
benefit of such retiring Global Administrative Agent or Canadian Administrative
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while it was acting as
Global Administrative Agent or Canadian Administrative Agent, respectively.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.1 Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Borrower, to:
Apache Corporation
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
43
Houston, Texas 77056-4400
Telephone: (713) 296-6204
Facsimile: (713) 296-6458
(b) if to the Global Administrative Agent, to:
JPMorgan Chase Bank, N.A.
Loan & Agency Services Group
1111 Fannin Street, 10th Floor
Houston, Texas 77002-8069
Attention: Rose Salvacion
Telephone: (713) 750-2501
Facsimile: (713) 427-6307
with a copy to:
JPMorgan Chase Bank, N.A.
600 Travis, 20 CTH 86
Houston, Texas 77002
Attention: Peter Licalzi
Telephone: (713) 216-8870
Facsimile: (713) 216-4117
(c) if to the Canadian Administrative Agent, to:
Royal Bank of Canada
200 Bay Street
12th floor, South Tower
Toronto, Ontario, M5J 2W7
Canada
Attention: Agency Services Group
Telephone: (416) 842-3901
Facsimile: (416) 842-4023
with a copy to:
Royal Bank of Canada
2800 Post Oak Blvd., Suite 5700
Houston, Texas 77056
USA
Attention: Linda Stephens
Telephone: (713) 403-5669
Facsimile: (713) 403-5624
(d) if to any other Lender, to it at its address (or telecopy number)
provided to the Global Administrative Agent, the Canadian Administrative Agent
and Borrower or as set forth in its Administrative Questionnaire.
44
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, the Canadian
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Global
Administrative Agent, the Canadian Administrative Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by Borrower therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Global Administrative Agent,
the Canadian Administrative Agent or any Lender may have had notice or knowledge
of such Default at the time.
(b) Any of the Combined Loan Documents or any provision thereof may be
waived, amended or modified pursuant to an agreement or agreements in writing
entered into by Borrower and the Combined Required Lenders or by Borrower and
the Global Administrative Agent and the Canadian Administrative Agent with the
consent of the Combined Required Lenders; provided that the same waiver,
amendment or modification is requested by Parent in connection with each of the
Combined Credit Agreements; and provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of (i) the Lenders
described in the first proviso of Section 10.2(c) without the prior written
consent of each Lender affected thereby and (ii) the Global Administrative Agent
or the Canadian Administrative Agent without the prior written consent of the
Global Administrative Agent or the Canadian Administrative Agent, respectively.
(c) Except as provided for in Section 10.2(b) above, neither this
Agreement nor any other Loan Document nor any provision hereof or thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by Borrower and the Required Lenders or by Borrower and the
Global Administrative Agent and the Canadian 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
45
required thereby, without the written consent of each Lender, or (v) change any
of the provisions of this Section or the definition of "Required Lenders",
"Combined Required Lenders" or any other provision hereof or thereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or thereunder or make any determination or grant any consent
hereunder or thereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Global Administrative Agent or the Canadian
Administrative Agent hereunder or thereunder without the prior written consent
of the Global Administrative Agent or the Canadian Administrative Agent,
respectively.
SECTION 10.3 Expenses; Indemnity; Damage Waiver.
(a) Borrower shall pay (i) all reasonable out-of-pocket expenses incurred
by the Agents and their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents (on a solicitor and his own client
basis), 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 (on a solicitor and
his own client basis) for the Agents or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or this
Agreement.
(b) Borrower shall indemnify the Agents and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee"), WHETHER OR NOT RELATED TO ANY NEGLIGENCE OF THE INDEMNITEE,
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel (or a solicitor and his own client
basis) for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations hereunder
or the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or the actual or proposed use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether brought by a third party or by the
Borrower and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (i) resulted
from the gross negligence or willful misconduct of such Indemnitee or (ii) arise
in connection with any issue in litigation commenced by Borrower or any of its
Subsidiaries against any Indemnitee for which a final judgment is entered in
favor of Borrower or any of its Subsidiaries against such Indemnitee.
46
(c) To the extent that Borrower fails to pay any amount required to be
paid by it to the Global Administrative Agent or the Canadian Administrative
Agent under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Global Administrative Agent or the Canadian Administrative Agent,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Global Administrative Agent or the Canadian Administrative
Agent, respectively.
(d) To the extent permitted by applicable law, Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions
or any Loan or the use of the proceeds thereof, except for any such claim
arising from such Indemnitee's gross negligence or willful misconduct.
(e) All amounts due under this Section shall be payable not later than
thirty (30) days after written demand therefor.
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, the Canadian Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees which are not
non-residents of Canada for purposes of the Income Tax Act (Canada) 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 Borrower, the Canadian Administrative Agent 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 Canadian Administrative Agent and the Global Administrative
Agent) shall be in increments of $1,000,000 and not less than $10,000,000 unless
each of Borrower, the Canadian Administrative Agent 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, (iv) the parties to each assignment
shall execute and
47
deliver to the Canadian Administrative Agent and the Global Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500 to the Canadian Administrative Agent, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Canadian Administrative Agent and the
Global Administrative Agent an Administrative Questionnaire; and provided
further that any consent of Borrower otherwise required under this paragraph
shall not be required if an Event of Default under Section 8.1 has occurred and
is continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
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 Canadian Administrative Agent and the Global Administrative Agent,
acting for this purpose as an agent of Borrower, shall maintain at one of its
offices in Toronto, Canada, and The City of New York, respectively, 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 Canadian Administrative Agent, the Global
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed 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 referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Canadian Administrative Agent and 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, the Canadian
Administrative Agent or the Global Administrative Agent, sell participations to
one or more banks or other entities which are not non-residents of Canada for
purposes of the Income Tax Act (Canada) (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
48
solely responsible to the other parties hereto for the performance of such
obligations, (iii) Borrower, the Canadian Administrative Agent, the Global
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (iv) if such Participant is not a Lender
or an Affiliate of a Lender, such Lender shall have given notice to Borrower of
the name of the Participant and the amount of such participation. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.2(c) that
affects such Participant. Subject to paragraph (f) of this Section, Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by 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.
SECTION 10.5 Survival. All covenants, agreements, representations and
warranties made by Borrower herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Canadian Administrative Agent, the Global
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16, 2.17, 2.19 and 10.3 and Article IX shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.6 Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Canadian
Administrative Agent constitute the entire contract among the parties relating
to the
49
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 Canadian Administrative Agent and the Global
Administrative Agent and when the Canadian Administrative Agent and the Global
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.8 Right of Setoff. If an Event of Default shall have occurred
and be continuing and the Obligations of Borrower shall have been accelerated,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of any Borrower against any of and
all the obligations of each Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE PROVINCE
OF ALBERTA AND OF CANADA APPLICABLE THEREIN.
(b) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE
OF ALBERTA, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURTS OF THE PROVINCE OF
ALBERTA. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE
50
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY
RIGHT THAT THE AGENTS OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AGAINST BORROWER OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN THE FIRST
SENTENCE OF PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.
(d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE PROVINCE OF ALBERTA. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT
OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
SECTION 10.10 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.11 Confidentiality. Each of the Agents and the Lenders agrees
to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory or self-regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of Borrower or
(h) to the extent such Information (A) becomes publicly available other than as
a result of a breach of this Section by any Person or (B) becomes available to
any Agent or any Lender on a non-confidential basis from a source other than
Borrower or any Person obligated to maintain the confidentiality of such
Information. Prior to disclosing any Information under clause (c) above, the
Agent or Lender required or asked to make such disclosure shall make a good
faith effort to give Borrower prior notice of such proposed disclosure to permit
Borrower to attempt to obtain a protective order or other appropriate injunctive
relief. For the purposes of this Section, "Information" means all
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information received from Borrower relating to Borrower or its business, other
than any publicly available information and such information that is available
to any Agent or any Lender on a non-confidential basis prior to disclosure by
Borrower; provided that, in the case of information received from Borrower after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 10.12 Interest Rate Limitation. It is the intention of the parties
hereto to conform strictly to applicable interest, usury and criminal laws and,
anything herein to the contrary notwithstanding, the obligations of Borrower to
a Lender or any Agent under this Agreement shall be subject to the limitation
that payments of interest shall not be required to the extent that receipt
thereof would be contrary to provisions of law applicable to such Lender or
Agent limiting rates of interest which may be charged or collected by such
Lender or Agent. Accordingly, if the transactions contemplated hereby would be
illegal, unenforceable, usurious or criminal under laws applicable to a Lender
or Agent (including the laws of any jurisdiction whose laws may be mandatorily
applicable to such Lender or Agent notwithstanding anything to the contrary in
this Agreement or any other Loan Document but subject to Section 2.12 hereof)
then, in that event, notwithstanding anything to the contrary in this Agreement
or any other Loan Document, it is agreed as follows:
(i) the provisions of this Section shall govern and control;
(ii) the aggregate of all consideration which constitutes interest
under applicable law that is contracted for, taken, reserved, charged or
received under this Agreement, or under any of the other aforesaid
agreements or otherwise in connection with this Agreement by such Lender
or Agent shall under no circumstances exceed the maximum amount of
interest allowed by applicable law (such maximum lawful interest rate, if
any, with respect to each Lender and the Agent herein called the "Highest
Lawful Rate"), and any excess shall be cancelled automatically and if
theretofore paid shall be credited to Borrower by such Lender or Agent
(or, if such consideration shall have been paid in full, such excess
refunded to Borrower);
(iii) all sums paid, or agreed to be paid, to such Lender or Agent
for the use, forbearance and detention of the indebtedness of Borrower to
such Lender or Agent hereunder or under any Loan Document shall, to the
extent permitted by laws applicable to such Lender or Agent, as the case
may be, be amortized, prorated, allocated and spread throughout the full
term of such indebtedness until payment in full so that the actual rate of
interest is uniform throughout the full term thereof;
(iv) if at any time the interest provided pursuant to this Section
or any other clause of this Agreement or any other Loan Document, together
with any other fees or compensation payable pursuant to this Agreement or
any other Loan Document and deemed interest under laws applicable to such
Lender or Agent, exceeds that amount which would have accrued at the
Highest Lawful Rate, the amount of interest and any such fees or
compensation to accrue to such Lender or Agent pursuant to this Agreement
52
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 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]
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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 CANADA LTD.
By:
----------------------------------
Name: Matthew W. Dundrea
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A., as Global
Administrative Agent
By:___________________________________
Name:
Title:
ROYAL BANK OF CANADA, as Canadian
Administrative Agent
By:___________________________________
Name:
Title:
ROYAL BANK OF CANADA, as Lender
By:___________________________________
Name:
Title:
BANK OF MONTREAL, as a Canadian Co-
Syndication Agent and as Lender
By:___________________________________
Name:
Title:
[SIGNATURE PAGE TO CANADIAN CREDIT AGREEMENT]
S - 1
UNION BANK OF CALIFORNIA, N.A.,
CANADA BRANCH, as a Canadian Co-
Syndication Agent and as Lender
By:_________________________________________
Name:
Title:
THE TORONTO-DOMINION BANK, as a Canadian Co-
Documentation Agent and as Lender
By:_________________________________________
Name:
Title:
BNP PARIBAS (CANADA), as a Canadian Co-
Documentation Agent and as Lender
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH, as Lender
By:_________________________________________
Name:
Title:
[SIGNATURE PAGE TO CANADIAN CREDIT AGREEMENT]
S - 2