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Exhibit 10.3
________________________________________________________________________________
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of July 13, 1993
among
APACHE CORPORATION
and
VARIOUS COMMERCIAL LENDING INSTITUTIONS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Collateral Agent
and
CHEMICAL BANK,
as Co-Agent
________________________________________________________________________________
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FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of July 13, 1993, (the Fourth Amendment"), is among APACHE CORPORATION, a
Delaware corporation (the "Company"), the various commercial lending
institutions as are or may become parties hereto (the "Lenders"), THE FIRST
NATIONAL BANK OF CHICAGO, as Administrative Agent (in such capacity, the
"Administrative Agent") and Collateral Agent (in such capacity, the"Collateral
Agent"), and CHEMICAL BANK, as Co-Agent (the "Co-Agent").
W I T N E S S E T H:
1. The Company, the Lenders, the Administrative Agent, the
Collateral Agent and the Co-Agent are parties to that certain Amended and
Restated Credit Agreement, dated as of April 15, 1992 (the "Original Amended
and Restated Credit Agreement").
2. The Original Amended and Restated Credit Agreement has been
amended prior to the date hereof (the Original Amended and Restated Credit
Agreement, as so amended, herein called the "Amended and Restated Credit
Agreement").
3. The Company has acquired capital stock in HERC (as hereinafter
defined).
4. As a result of the acquisition by the Company of stock in
HERC, the Company, the Lenders, the Administrative Agent, the Collateral Agent
and the Co-Agent wish to amend the Amended and Restated Credit Agreement as
follows:
I. AMENDMENTS TO AMENDED AND RESTATED CREDIT AGREEMENT.
A. Section 1.1 of the Amended and Restated Credit Agreement is
hereby amended by inserting the following definitions in proper alphabetical
order:
"HEL" means Hadson Energy Limited, a Western Australia
corporation.
"HERC" means Hadson Energy Resources Corporation, a Delaware
corporation.
B. The first sentence of the definition of "Affiliate" appearing
in Section 1.1 of the Amended and Restated Credit Agreement is hereby amended
in its entirety as follows:
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"Affiliate" of any Person means any Person directly or
indirectly controlling, controlled by, or under direct or indirect
common control of such Person and in the case of the Company or any
Subsidiary shall include Key, APCOP, and NGC, but shall not include
(except for the purposes of Sections 11.9 and 15.9) HERC or HEL.
C. The definition of "Subsidiary" appearing in Section 1.1 of the
Amended and Restated Credit Agreement is hereby amended in its entirety as
follows:
"Subsidiary" means MW Petroleum, MWJR, each Drilling
Partnership and any other person more than 50% of the outstanding
voting securities of which shall at the time be owned or controlled,
directly or indirectly, by the Company or by one or more subsidiaries
or by the Company and one or more Subsidiaries; provided, that not
withstanding the foregoing, the term Subsidiary shall not include
APCOP or, for the purposes of Article VIII (except for Sections 8.10,
8.15, and 8.16), Article IX, Article XI (except for Sections 11.2 and
11.9) and Article XII (except for Section 12.1 insofar as the
representation or warranty which is breached or shall be false was
made pursuant to Section 8.10, Section 8.15 or Section 8.16), HERC or
HEL.
D. Clause (b) of Section 9.1 of the Amended and Restated Credit
Agreement is hereby amended in its entirety as follows:
"(b) as soon as available and in any event within 45 days after the
close of the first three quarterly periods of each fiscal year, for
itself, consolidated unaudited balance sheets as of the close of each
such period and consolidated profit and loss and reconciliation of
surplus statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter."
II. EFFECTIVENESS. This Fourth Amendment shall become effective
as of the date hereof when the Administrative Agent shall have received (a)
counterparts hereof duly executed by the Company, the Lenders, the
Administrative Agent, the Collateral Agent and the Co-Agent (or, in the case of
any party as to which an executed counterpart shall not have been received,
telegraphic, telex, or other written confirmation from such party of execution
of a counterpart hereof by such party) and (b) the consent and acknowledgement
(herein called the "Consent"), substantially in the form of Exhibit A hereto,
of MW Petroleum Corporation, a Colorado corporation ("MW Petroleum").
III. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce
the Lenders, the Administrative Agent, the Collateral Agent and the Co-Agent to
enter into this Fourth Amendment, the Company hereby reaffirms, as of the date
hereof, its representations and warranties in their entirety contained in
Article VIII of the Amended and Restated Credit Agreement (except with respect
to HERC and HEL except for the representations and warranties contained in
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Sections 8.10, 8.15, and 8.16) and in all other documents executed pursuant
thereto (except to the extent such representations and warranties relate solely
to an earlier date) and additionally represents and warrants as follows:
(i) The Company is a corporation, and MW Petroleum, MWJR
Petroleum Corporation, a Delaware corporation ("MWJR"), and each other
Subsidiary (except for HERC and HEL) 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.
(ii) The Company has the corporate power and authority and
legal right to execute and deliver this Fourth Amendment and to
perform its obligations hereunder. MW Petroleum has the corporate
power and authority and legal right to execute and deliver its Consent
and to perform its obligations thereunder. The execution and delivery
by the Company of this Fourth Amendment, and the execution and
delivery by MW Petroleum of its Consent, and the performance of their
obligations hereunder and thereunder have been duly authorized by
proper corporate proceedings, and this Fourth Amendment and the
Amended and Restated Credit Agreement as amended hereby, with respect
to the Company, and its Consent, with respect to MW Petroleum,
constitute legal, valid and binding obligations of the Company and MW
Petroleum, enforceable against the Company and MW Petroleum in
accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
(iii) No Default or Unmatured Default has occurred and is
continuing as of the date hereof.
(iv) There has been no material adverse change (a) in the
businesses, assets, properties, operations, condition (financial or
otherwise) or results of operations or prospects of the Company and
its Subsidiaries (except for HERC and HEL) or MW Petroleum and its
Subsidiaries from April 15, 1992, (b) affecting the rights and
remedies of the Lenders under and in connection with this Fourth
Amendment, the Amended and Restated Credit Agreement as amended by
this Fourth Amendment, the Notes and the Collateral Documents or (c)
in the ability of the Company to perform its obligations under this
Fourth Amendment, the Amended and Restated Credit Agreement as amended
by this Fourth Amendment, the Notes or the Collateral Documents to
which it is a party, or the obligation of MW Petroleum to perform its
obligations pursuant to its Guaranty and the Collateral Documents to
which it is a party.
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(v) There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of
any of their officers threatened against or affecting the Company or
its Subsidiaries (except for HERC and HEL) or MW Petroleum or its
Subsidiaries which is or could have a Material Adverse Effect.
IV. DEFINED TERMS. Except as amended hereby, terms used herein
when defined in the Amended and Restated Credit Agreement shall have the same
meanings herein unless the context otherwise requires.
V. REAFFIRMATION OF CREDIT AGREEMENT. This Fourth Amendment
shall be deemed to be an amendment to the Amended and Restated Credit
Agreement, and the Amended and Restated Credit Agreement, as amended hereby, is
hereby ratified, approved and confirmed in each and every respect. All
references to the Amended and Restated Credit Agreement herein and in any other
document, instrument, agreement or writing shall hereafter be deemed to refer
to the Amended and Restated Credit Agreement as amended hereby.
VI. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL LENDERS.
All obligations of the Company and rights of the Lenders, the Administrative
Agent, the Collateral Agent and the Co-Agent and any other holders of the Notes
expressed herein shall be in addition to and not in limitation of those
provided by applicable law.
VII. SEVERABILITY OF PROVISIONS. Any provision in this Fourth
Amendment that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Fourth Amendment are
declared to be severable.
VIII. COUNTERPARTS. This Fourth Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
IX. HEADINGS. Article and section headings in this Fourth
Amendment are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Fourth Amendment.
X. SUCCESSORS AND ASSIGNS. This Fourth Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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XI. NOTICE. THIS WRITTEN FOURTH AMENDMENT TOGETHER WITH THE
AMENDED AND RESTATED CREDIT 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 BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the Company, the Lenders, the Administrative
Agent, the Collateral Agent and the Co-Agent have executed this Fourth
Amendment as of the date first above written.
APACHE CORPORATION
By:/s/ CLYDE E. MCKENZIE
Name: Clyde E. McKenzie
Title: Vice President and Treasurer
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THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
and Collateral Agent
By:/s/ T. THOMAS CHENG
Title: Vice President
CHEMICAL BANK, as Co-Agent
By:/s/ R. POTTER
Title: Managing Director
BANK OF MONTREAL, Individually and as
Lead Manager
By:/s/ ROBERT ROBERTS
Title: Director
NATIONSBANK, Individually and as Lead Manager
By:/s/ JO A. TAMALIS
Title: Senior Vice President
TEXAS COMMERCE BANK, N.A.
By:/s/ LORI VETTERS
Title: Vice President
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CHRISTIANIA BANK OF KREDITKASSE
By:/s/ DEBRA DICKAHUTH
Title: Vice President
By:/s/ JAHN O. ROISING
Title: Vice President
THE BANK OF NOVA SCOTIA
By:/s/ M. VANOTTERLOO
Title: Vice President
THE CHASE MANHATTAN BANK, N.A.
By:/s/ BETTYLOU J. ROBERT
Title: Vice President
MIDLAND BANK PLC, NEW YORK BRANCH
By:/s/ PETER G. R. DODDS
Title: Executive Director
ROYAL BANK OF CANADA
GRAND CAYMAN (NORTH AMERICAN #2) BRANCH
By:/s/ MICHAEL A. COLE
Title: Manager
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NBD BANK, N.A.
By:/s/ DOUGLAS R. LIFTMAN
Title: 2nd Vice President
BANQUE INDOSUEZ
By:/s/ N. M. GAETZ
Title: Senior Vice President
By:/s/ EDWARD J. GILLIARD
Title: Vice President
BANQUE PARIBAS
By:/s/ D. W. MALEY, JR.
Title: Senior Vice President
By:/s/ KARIM RASHID
Title: Assistant Treasurer
CIBC, INC.
By:/s/ JULIA COLLINS
Title: Vice President
CENTRAL BANK DENVER
By:/s/ MONTE E. DECKERD
Title: Vice President
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THE FIRST NATIONAL BANK OF BOSTON
By:/s/ MICHAEL KANE
Title: Director
THE FUJI BANK, LIMITED - HOUSTON AGENCY
By:/s/ SOICHI YOSHIDA
Title: Vice President & Manager
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as successor by merger to Security
Pacific National Bank
By:/s/ JOHN ROBINSON
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By:/s/ RICHARD A. ERBERT
Title: Vice President
UNION BANK
By:/s/ RICHARD P. DEGREY
Title: Vice President
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UNITED BANK OF DENVER NATIONAL ASSOCIATION
By:/s/ TOM FONCANNON
Title: Vice President
ABN-AMRO BANK N.V. - HOUSTON AGENCY
By:/s/ MICHAEL N. OAKES
Title: Vice President
By:/s/ M. TRIBOLET
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:/s/ STEVEN A. TULIP
Title: Vice President
J.P. MORGAN DELAWARE
By:/s/ PHILIP S. DETJENS
Title: Vice President
CITIBANK, N.A.
By:/s/ CAROLYN R. BODMER
Title: Vice President
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EXHIBIT A TO FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
CONSENT AND ACKNOWLEDGMENT
The undersigned, by its signature hereto, acknowledges and agrees to
the terms and conditions of that certain Fourth Amendment to Amended and
Restated Credit Agreement dated as of July 13, 1993 (the "Amendment"). The
undersigned acknowledges and reaffirms its obligations owing to the Lenders,
the Administrative Agent, the Collateral Agent and the Co-Agent under its
Guaranty and agrees that such Guaranty shall remain in full force and effect.
Although the undersigned has been informed by the Company of the matters set
forth in the Amendment, and the undersigned has acknowledged and agreed to
same, the undersigned understands that the Lenders have no duty to notify the
undersigned or to seek the undersigned's acknowledgment or agreement, and
nothing contained herein shall create such a duty as to any transactions
hereafter.
Capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Amended and Restated Credit Agreement, dated as
of April 15, 1992, by and among Apache Corporation, the various commercial
lending institutions parties thereto, The First National Bank of Chicago, as
Administrative Agent and Collateral Agent, and Chemical Bank, as Co-Agent, as
amended.
MW PETROLEUM CORPORATION
By:/s/ CLYDE E. MCKENZIE
Name: Clyde E. McKenzie
Title: Vice President and Treasurer
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