1
EXHIBIT 10.2
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 1, 1995
among
APACHE CORPORATION,
and
THE LENDERS NAMED HEREIN,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Arranger
and
CHEMICAL BANK,
as Co-Agent and Arranger
2
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND TERMS OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.3. Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.4. Accounting and Financial Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE II THE FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.1. The Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(a) Description of Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(b) Facility Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(c) All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(d) Revolving Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2. Extension of Termination Date and of Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3. Borrowing Base and Aggregate Available Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Initial Borrowing Base; Scheduled Semi-Annual and Discretionary Determinations of the Borrowing
Base; Procedures for Determination of the Borrowing Base . . . . . . . . . . . . . . . . . . . . 22
(b) Determination of Borrowing Base at Request of Company . . . . . . . . . . . . . . . . . . . . . 23
(c) Criteria for Determination of the Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Redeterminations of Borrowing Base Upon Material Adverse Effect . . . . . . . . . . . . . . . . 23
(e) Redetermination of Borrowing Base Upon Material Changes . . . . . . . . . . . . . . . . . . . . 24
(f) Reduction of Aggregate Available Commitment Upon Sales of Certain Properties . . . . . . . . . . 24
(g) Title Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.4. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.5. Facility Fee; Other Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Agents' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III BORROWING; SELECTING RATE OPTIONS; ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.1. Method of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.3. Method of Selecting Rate Options and Interest Periods for Revolving Loans . . . . . . . . . . . . . . . 26
3.4. Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Competitive Bid Quote Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Invitation for Competitive Bid Quotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Submission and Contents of Competitive Bid Quotes . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Notice to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Acceptance and Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(f) Allocation by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.5. Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.6. Continuation and Conversion Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.7. Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.8. Rate after Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.9. Interest Payment Dates; Determination of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . 30
(a) Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Determination of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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3.10. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions . . . . . . . . . . . 31
3.11. Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV MANDATORY PAYMENTS; REDUCTIONS OF COMMITMENTS; ETC. . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(a) Mandatory Prepayment on Account of Excess of Outstandings Over Aggregate Available Commitment 32
(b) Mandatory Prepayment on Account of Sales of Certain Properties Included in the Borrowing Base 32
(c) [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(d) Mandatory Prepayment on Account of Extraordinary Sales of Properties . . . . . . . . . . . . . 32
(e) Application of Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.3. Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.4. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.5. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.6. Voluntary Reductions of Commitments and the Non-conforming Borrowing Base . . . . . . . . . . . . . . 34
4.7. Voluntary and Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI CHANGE IN CIRCUMSTANCES; TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.2. Availability of Rate Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.3. Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.4. Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.5. Increased Capital Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.7. Lender Statements; Survival of Indemnity; Substitution of Lenders; Limitation on Claims by Lenders . 37
6.8. Withholding Tax Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VII CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.1. Conditions of Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.2. Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VIII REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1. Corporate Existence and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.3. No Conflict; Government Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.5. Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.7. Litigation and Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.10. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.11. Regulation-U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.12. Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.13. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.14. Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.15. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.16. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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8.17. Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.18. Post-Retirement Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
8.20. Environmental Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IX AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.1. Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.2. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.3. Notice of Default, Unmatured Default, Litigation and Material Adverse Effect . . . . . . . . . . . . 47
9.4. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.8. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.10. Operation of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.11. Delivery of Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.12. Environmental Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.13. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.14. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
9.15. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(a) Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE X FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.1. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.2. Ratio of EBITDDA to Consolidated Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE XI NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.1. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.2. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.3. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.4. Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.5. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.6. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.7. Restricted Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.8. Rental Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.10. Negative Pledges, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.11. Regulation U Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.12. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.13. Hedging Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
11.14. Approval of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.1. Breach of Warranties and Misleading Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.2. Nonpayment of Notes, Fees and other Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.3. Breach of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.4. [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.5. Non-Compliance with this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.6. Cross-Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.7. Voluntary Dissolution and Insolvency Proceedings and Actions . . . . . . . . . . . . . . . . . . . . 57
12.8. Involuntary Insolvency Proceedings or Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.9. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.10. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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12.11. Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.12. Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.13. Other Defaults Under Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.14. Failure of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
12.15. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE XIII ACCELERATION, WAIVERS, AMENDMENTS, REMEDIES; RELEASES . . . . . . . . . . . . . . . . . . . . . . . . 58
13.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
13.3. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XIV GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.1. Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.2. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.5. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.6. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.7. Reimbursement of Costs and Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 60
(a) Reimbursement of Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(b) Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
14.8. Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
14.9. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
14.10. Nonliability of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
14.11. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
14.12. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
14.13. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE XV THE ADMINISTRATIVE AGENT, THE ARRANGERS
AND THE ENGINEERING BANKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.1. Appointment of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.3. General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.4. No Responsibility for Loans, Recitals, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.5. Action on Instructions of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.6. Employment of Agents and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.7. Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
15.8. Reimbursement and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
15.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
15.10. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
15.11. Certain Successor Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XVI SETOFF; RATABLE PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
16.1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
16.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XVII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 65
17.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
17.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
17.3. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
17.4. Dissemination of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
17.5. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XVIII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
18.1. Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
18.2. Change of Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
iv
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE XIX COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE XX NO ORAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
EXHIBIT A-1 REVOLVING NOTE (Revolving Loans)
EXHIBIT A-2 COMPETITIVE BID NOTE (Competitive Bid Loans)
EXHIBIT B FORM OF LEGAL OPINION
EXHIBIT C APACHE CORPORATION COMPLIANCE CERTIFICATE
EXHIBIT D ASSIGNMENT AGREEMENT
EXHIBIT E COMPETITIVE BID QUOTE REQUEST
EXHIBIT F CONTINUATION/CONVERSION NOTICE
EXHIBIT G MAYER, BROWN & PLATT OPINION
EXHIBIT H INVITATION FOR COMPETITIVE BID QUOTES
EXHIBIT I CONSENT, ACKNOWLEDGEMENT AND AGREEMENT
EXHIBIT J CONFIDENTIALITY AGREEMENT
EXHIBIT K COMPETITIVE BID QUOTE
EXHIBIT L FORM OF GUARANTY
SCHEDULE A COMMITMENTS UNDER APRIL 1994 AGREEMENT
SCHEDULE B ALTERNATE BASE RATE SPREAD, EURODOLLAR SPREAD, FACILITY FEE RATES
SCHEDULE 8.8 SUBSIDIARIES
SCHEDULE 11.1 INDEBTEDNESS; LIENS
SCHEDULE 11.3 CERTAIN PROPERTIES
SCHEDULE 11.12 INVESTMENTS
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amended and Restated Credit Agreement, dated as of March 1,
1995, 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
and Arranger and Chemical Bank, as Co-Agent (the "Co-Agent") and as Arranger.
RECITALS:
1. The Company, the Lenders, The First National Bank of
Chicago as Administrative Agent and as Collateral Agent and Chemical Bank, as
Co-Agent have heretofore entered into that certain Reducing Revolving Credit
and Term Loan Agreement, dated as of July 1, 1991, that certain Amendment No.
1, dated as of November 1, 1991 and that certain Amendment No. 2, dated as of
December 1, 1991 (as so amended, the "July 1991 Agreement"), pursuant to which
the Lenders agreed to make Term Loans and Revolving Loans (each as defined in
the July 1991 Agreement and herein called, respectively, the "1991 Term Loans"
and the "1991 Revolving Loans").
2. In order to restructure the indebtedness incurred by the
Company to the Lenders pursuant to the July 1991 Agreement, the Company, the
Lenders, the Administrative Agent, the Collateral Agent and the Co-Agent
entered into that certain Amended and Restated Credit Agreement, dated as of
April 15, 1992, a first amendment thereto, dated July 21, 1992, a second
amendment thereto dated December 31, 1992, the Third Amendment to Amended and
Restated Credit Agreement, dated as of April 30, 1993, and the Fourth Amendment
to Amended and Restated Credit Agreement, dated as of July 13, 1993 (as so
amended, the "April 1992 Agreement"), pursuant to which the Lenders agreed to
make Revolving Loans (as defined in the April 1992 Agreement and herein called
"1992 Revolving Loans").
3. In order to restructure the indebtedness incurred by the
Company to the Lenders pursuant to the July 1991 Agreement, as renewed,
restated extended and converted into 1992 Revolving Loans pursuant to the April
1992 Agreement, the Company, the Lenders, the Administrative Agent, the
Collateral Agent and the Co-Agent for the Lenders entered into that certain
Second Amended and Restated Credit Agreement dated as of April 30, 1994 (the
"April 1994 Agreement") pursuant to which the Lenders agreed to make Revolving
Loans (as defined in the April 1994 Agreement and herein called "1994 Revolving
Loans"), each in an aggregate amount not to exceed the amount set forth beside
the name of such bank on Schedule A.
4. On the terms and subject to the conditions of this
Agreement, all 1994 Revolving Loans of the Lenders to the Company outstanding
on the Effective Date (as hereinafter defined) shall, on the Effective Date, be
renewed, restated, extended and converted into (but shall not be deemed to be
repaid) Revolving Loans under this Agreement.
5. The Company, the Lenders, the Administrative Agent, the
Co-Agent and the Arrangers hereby amend the April 1994 Agreement and restate
the April 1994 Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS AND TERMS OF CONSTRUCTION
1.1. Definitions. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except
8
where the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and the plural forms
thereof):
"Accepting Lender" is defined in Section 2.2.
"Acknowledgment of Guaranty" means an acknowledgment to guaranty,
substantially in the form of Exhibit I hereto, dated the Effective Date, duly
executed and delivered to the Administrative Agent by each of MW Petroleum and
Apache Energy Resources.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Company or any of the Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency).
"Administrative Agent" means The First National Bank of Chicago in its
capacity as administrative agent for the Lenders pursuant to Article XV, and
not in its individual capacity as a Lender or in its capacity as an Engineering
Bank or Arranger, and any successor Administrative Agent appointed pursuant to
Article XV.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders or any of them to the Company
on the same Borrowing Date, at the same Rate Option (or on the same interest
basis in the case of a Competitive Bid Loan) and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any Person directly or indirectly
controlling, controlled by or under direct or indirect common control of such
Person, but shall not, in the case of the Company or any Subsidiary, include
(except for the purposes of Sections 11.9 and 15.9) Apache Energy Limited or
its Subsidiaries. A Person shall be deemed to control another Person if the
controlling Person owns directly or indirectly 20% or more of any class of
voting securities of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
"Agents" means each of the Administrative Agent, the Arrangers, the
Co-Agent and the Engineering Banks.
"Aggregate Available Commitment" means, as of the time a determination
thereof is to be made, the lesser of (x) the Aggregate Commitment, and (y) the
sum of the Borrowing Base plus the then effective Non-conforming Borrowing
Base, as such Aggregate Available Commitment shall be reduced from time to time
pursuant to Section 2.3(a), (d), (e) or (f) or Section 4.2(d).
"Aggregate Commitment" means, as of the time a determination thereof
is to be made, the sum of the Commitments of all the Lenders hereunder, being
$1,000,000,000 as of the date hereof, and as reduced from time to time after
the date hereof pursuant to Sections 4.2(d), 4.6 and 13.1.
"Aggregate Unavailable Commitment" means, as of the time a
determination thereof is to be made, the difference between (x) the Aggregate
Commitment and (y) the Aggregate Available Commitment.
2
9
"Agreement" means this Third Amended and Restated Credit Agreement, as
it may be amended, supplemented, restated or otherwise modified and in effect
from time to time.
"Agreement Accounting Principles" means, on any date, those generally
accepted accounting principles applied in preparing the financial statements
referred to in Section 8.4.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Advances, a fluctuating rate of interest per annum equal to the
higher of (i) the Corporate Base Rate, and (ii) the Federal Funds Effective
Rate most recently determined by the Administrative Agent plus 1/2%. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Company
and the Lenders of changes in the Alternate Base Rate.
"Alternate Base Rate Spread" means the applicable rate per annum set
forth in Schedule B.
"Anniversary Date" means any March 1, with the first such date being
March 1, 1996.
"Annual Certificate of Extension" means a certificate of the Company,
executed by an Authorized Officer and delivered to the Administrative Agent,
which requests an extension of the then scheduled Termination Date pursuant to
Section 2.2.
"Apache Energy Limited" means Apache Energy Limited, an Australian
corporation, f/k/a Hadson Energy Limited.
"Apache Energy Resources" means Apache Energy Resources Corporation, a
Delaware corporation, f/k/a Hadson Energy Resources Corporation.
"Apache Guaranty" means that certain Guaranty, dated as of April 30,
1994, by Apache Energy Resources in favor of the Agents and the Lenders, as
such may be amended, supplemented, restated, reaffirmed or otherwise modified
from time to time.
"Approved Engineers" means Ryder Scott Company Petroleum Engineers or
Netherland, Sewell & Associates, Inc. or other independent petroleum engineers
of recognized standing and experience in the evaluation of hydrocarbon reserves
who each of the Engineering Banks and the Required Lenders determine to be
acceptable.
"Approved Engineers' Report" means a report prepared (except to the
extent set forth below) and certified by the Approved Engineers and furnished
by the Company to the Lenders pursuant to Section 9.1(d) or (e) which shall set
forth (i) the estimated volume and rate of production of Hydrocarbons which may
reasonably be expected to be produced from Proved Reserves for each Property,
(ii) a computation of the projected gross revenues from Proved Reserves
attributable to each Property, (iii) a computation of the future net revenues
for each Property, showing separately net revenues from Proved Developed
Producing Reserves, Proved Developed Non-Producing Reserves and Proved
Undeveloped Reserves, and (iv) projections as to the amount of Proved Reserves
for each Property, showing separately Proved Developed Producing Reserves,
Proved Developed Non-Producing Reserves and Proved Undeveloped Reserves;
provided, that such Properties shall not include Properties the subject of
Limited Recourse Indebtedness permitted by Section 11.1(d) or Properties on
which a Lien has been granted pursuant to the facility described in item 1 of
Schedule 11.1. The Approved Engineers' Report shall be prepared using economic
parameters (including
3
10
pricing, inflation and discount rate) provided by the Engineering Banks and in
accordance with established criteria generally accepted in the oil and gas
industry for use by independent petroleum engineers in making determinations
and appraisals of hydrocarbon reserves, including assumptions, estimates and
projections as to production expenses, availability of reserves and rates of
production; provided, however, that in preparing such report, the Approved
Engineers need only make an independent evaluation of Properties comprising not
less than (x) 70% in value of the Properties included in the most recent
Approved Engineers' Report and (y) 80% in value of any Properties not included
in the most recent Approved Engineers' Report, and may review the evaluation by
the Company's petroleum engineers in accordance with the foregoing criteria of
the remainder of the Properties. The Engineering Banks may, in their sole
discretion after consulting with the Company, require modification of any
assumption, projection or estimate which they (acting reasonably) find
unacceptable.
"April 1992 Agreement" is defined in Recital 2.
"April 1994 Agreement" is defined in Recital 3.
"Arranger" means each of First Chicago and Chemical in their
respective capacities as arranger pursuant to Article XV and not in their
respective individual capacities as a Lender, an Engineering Bank, the
Administrative Agent, or the Co-Agent, as the case may be.
"Assignment Agreement" means an agreement executed by an assignor
Lender and an assignee Lender pursuant to Section 17.3 substantially in the
form of Exhibit D hereto.
"Authorized Officer" means any officer of the Company, acting singly,
specified as such to the Administrative Agent in writing by the Vice
President/Treasurer.
"Borrowing Base" means the Borrowing Base then in effect calculated
and established in accordance with the terms and provisions of Section 2.3.
"Borrowing Date" means any Business Day on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 3.3.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day other than Saturday or Sunday on
which banks are open for business in Chicago and New York and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day other than Saturday or Sunday on which banks are
open for business in Chicago and New York.
"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 Agreement Accounting Principles.
"Capitalized Lease Obligations" means, with respect to a Person, the
amount of the obligations of such Person under Capitalized Leases which would
be shown as a liability on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more
than one year after such time, issued or guaranteed by the United
States Government;
4
11
(b) commercial paper, maturing not more than nine
months from the date of issue, which is issued by any Agent or any
Agent's holding company, or by
(i) a corporation (other than the Company
or an Affiliate of the Company) organized under the laws of
any state of the United States or of the District of
Columbia and rated A-1 by Standard & Poor's Corporation or
P-1 by Moody's Investors Service, Inc., or
(ii) any Lender (or its holding company)
which has (or which at the time is a subsidiary of a
holding company which has) a Qualified Long Term Rating;
(c) any certificate or deposit or banker's acceptance,
maturing not more than one year after such time, which is issued by
any Agent or any Agent's holding company, or by either
(i) a commercial banking institution that
is a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of not
less than $500,000,000, which has (or which at the time is
a subsidiary of a holding company which has) a Qualified
Long Term Rating, or
(ii) any Lender which has (or which is a
subsidiary of a holding company which has) a Qualified Long
Term Rating; or
(d) any repurchase agreement entered into with any
Agent or any Lender (or other commercial banking institution of the
stature referred to in clause (c)(i)) which
(i) is secured by a fully perfected
security interest in any obligation of the type described
in any of clauses (a) through (c); and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than 100%
of the repurchase obligation of such Lender or Agent (or
other commercial banking institution) thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System List.
"Change in Control" means:
(a) the failure by the Company to own, free
and clear of all Liens or encumbrances, 100% of the
outstanding capital stock of each of MW Petroleum and
Apache Energy Resources on a fully diluted basis or the
failure of MW Petroleum to own, free and clear of all Liens
or encumbrances, 100% of the outstanding capital stock of
MWJR on a fully diluted basis, except as a result of the
merger of any of MW Petroleum, Apache Energy Resources and
MWJR into the Company pursuant to Section 11.2; or
(b) any Unrelated Person or any Unrelated
Persons acting together which would constitute a Group,
together with any Affiliates or Related Persons thereof (in
each case also constituting Unrelated Persons), shall at
any time either
5
12
(i) Beneficially Own more than 20% of the aggregate voting power of
all classes of Voting Stock of the Company or (ii) succeed in having
sufficient of its or their nominees elected to the Board of Directors
of the Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company after such
election who is an Affiliate or Related Person of such Person or
Group, shall constitute a majority of the Board of Directors of the
Company. As used herein (A) "Beneficially Own" means "beneficially
own" as defined in Rule 13d-3 of the Securities Exchange Act of 1934,
as amended, or any successor provision thereto; (B) Group" means a
"group" for purposes of Section 13(d) of the Securities Exchange Act
of 1934, as amended; (C) Unrelated Person" means at any time any
Person other than the Company or any Subsidiary and other than any
trust for any employee benefit plan of the Company or any Subsidiary
of the Company; (D) "Related Person" of any Person shall mean any
other Person owning (1) 5% or more of the outstanding common stock of
such Person or (2) 5% or more of the Voting Stock of such Person; and
(E) "Voting Stock" of any Person shall mean capital stock of such
Person which ordinarily has voting power for the election of directors
(or persons performing similar functions) of such Person, whether at
all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Chemical" means Chemical Bank in its individual capacity and its
successors.
"Claims" is defined in Section 14.7.
"Co-Agent" is defined in the Preamble.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified and in effect from time to time.
"Commitment" means, with respect to each Lender, the obligation of
such Lender to make Loans not exceeding the amount set forth as its Commitment
opposite its signature below or in the relevant Assignment Agreement, as such
amount may be modified from time to time pursuant to the provisions of this
Agreement, including any Assignment Agreement executed by such Lender and its
Assignee Lender and delivered pursuant to Section 17.3 and any reduction
pursuant to Sections 4.6, or 13.1; it being understood, however, that a change
in the Borrowing Base does not constitute a modification of any Commitment.
"Company" is defined in the Preamble.
"Company's Engineers' Report" means a report prepared by the Company's
engineering staff and certified by the Company's head of Technical Services and
furnished by the Company to the Lenders pursuant to Section 9.1(f) which shall
set forth (i) the estimated volume and rate of production of Hydrocarbons which
may reasonably be expected to be produced from Proved Reserves for each
Property, (ii) a computation of the projected gross revenues from Proved
Reserves attributable to each Property, (iii) a computation of the future net
revenues for each Property, showing separately net revenues from Proved
Developed Producing Reserves, Proved Developed Non-Producing Reserves and
Proved Undeveloped Reserves and (iv) projections as to the amount of Proved
Reserves for each Property, showing separately Proved Developed Producing
Reserves, Proved Developed Non-Producing Reserves and Proved Undeveloped
Reserves; provided, that such Properties shall not include Properties the
subject of Limited Recourse Indebtedness permitted by Section 11.1(d) or
Properties on which a Lien has been granted pursuant to the facility described
in item 1 of Schedule 11.1. The
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13
Company's Engineers' Report shall be prepared using economic parameters
(including pricing, inflation and discount rate) provided by the Engineering
Banks and in accordance with established criteria generally accepted in the oil
and gas industry for use by independent petroleum engineers in making
determinations and appraisals of hydrocarbon reserves, including assumptions,
estimates and projections as to production expenses, availability of reserves
and rates of production. The Engineering Banks may, in their sole discretion
after consulting with the Company, require modification of any assumption,
projection or estimate which they (acting reasonably) find unacceptable.
"Competitive Bid Advance" means a borrowing hereunder consisting of
the aggregate amount of the several Competitive Bid Loans made by some or all
of the Lenders to the Company at the same time, having the same Stated Maturity
Date and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 3.4(e).
"Competitive Bid Loan" means, with respect to a Lender, a competitive
bid loan made by such Lender pursuant to Section 2.1 and Section 3.4 as the
result of a Competitive Bid Borrowing Notice from the Company requesting a
Competitive Bid Advance.
"Competitive Bid Margin" means the margin above or below the
applicable Eurodollar Base Rate or Alternate Base Rate offered for a Bid Loan,
expressed as a percentage (rounded to the nearest 1/16 of 1%) to be added or
subtracted from the Eurodollar Base Rate or the Alternate Base Rate, as
applicable.
"Competitive Bid Note" means a promissory note in substantially the
form of Exhibit "A-2" hereto, with applicable insertions, duly executed and
delivered to the Administrative Agent by the Company for the account of a
Lender and payable to the order of such Lender, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit K hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 3.4(c).
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit E hereto completed and delivered by the
Company to the Administrative Agent in accordance with Section 3.4(a).
"Consolidated Interest Expense" means, for any period for which a
determination thereof is to be made, total interest expense, whether paid or
accrued (but excluding that attributable to Capitalized Leases), of the Company
and the Consolidated Subsidiaries on a consolidated basis including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing.
"Consolidated Net Income" means, for any period for which a
determination thereof is to be made, the net income (or loss) after taxes of
the Company and the Consolidated Subsidiaries on a consolidated basis for such
period taken as a single accounting period; provided that there shall be
excluded the income (or loss) of any Affiliate of the Company or other Person
(other than a Consolidated Subsidiary of the Company) in which any Person
(other than the Company or any of the Consolidated Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of the Consolidated
Subsidiaries by such Affiliate or other Person during such period.
"Consolidated Subsidiary" means, as of the time a determination
thereof is to be made, any Subsidiary or other entity the accounts of which
would be
7
14
consolidated with those of the Company in its consolidated financial statements
if such statements were prepared as of such date.
"Consolidated Tangible Net Worth" means, as of the time a
determination thereof is to be made, the consolidated stockholders' equity of
the Company and the Consolidated Subsidiaries, less their consolidated
intangible assets, all determined as of such date in accordance with Agreement
Accounting Principles.
"Contingent Obligation" means, with respect to any Person as of the
time a determination thereof is to be made, any agreement, undertaking or
arrangement by which such Person guarantees, endorses or otherwise becomes or
is contingently liable (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
invest in, a debtor, or otherwise to assure a creditor against loss) in respect
of any Indebtedness, obligation or other liability of itself or any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares
or partnership interests of any other Person, or is liable in respect of the
obligations of a partnership of which such Person is a partner.
"Continuation/Conversion Notice" means a notice by means of telecopy
or telephone (confirmed in writing promptly thereafter if by telephone) of
continuation or conversion, which notice shall specify the principal amount to
be continued or converted, the date of such continuation or conversion, the
type of Revolving Loan and, if such Revolving Loan is to be a Revolving
Eurodollar Loan, the Interest Period, which notice, when delivered by telecopy
or confirmed in writing, shall be substantially in the form of Exhibit "F" and
executed on behalf of the Company by an Authorized Officer.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any Subsidiary, are treated
as a single employer under Section 414(b) or 414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Debt" means all Indebtedness of the type referred to in clauses (i),
(ii), (iii), (iv) and (v) of the definition of Indebtedness.
"Debt/Capitalization Ratio" means, as of the time a determination
thereof is to be made, the ratio expressed as a decimal of (x) the aggregate
outstanding amount of the consolidated Debt of the Company and its Consolidated
Subsidiaries, to (y) the sum of the consolidated stockholders' equity of the
Company and its Consolidated Subsidiaries plus the aggregate outstanding amount
of the consolidated Debt of the Company and its Consolidated Subsidiaries;
provided, however, that for purposes of the definitions of Alternate Base Rate
Spread and Eurodollar Spread and for purposes of Section 2.5(a) the
Debt/Capitalization Ratio on each day commencing on the forty-fifth (45th) day
following the end of a calendar quarter shall be deemed to be the lesser of (a)
the Debt/ Capitalization Ratio as of the end of such calendar quarter and (b)
the Debt/Capitalization Ratio as of the final day of the month following the
end of such calendar quarter, in each case based on a certificate received by
the Administrative Agent and the Lenders from the Vice President and Treasurer
of the Company pursuant to Section 9.1(k), provided further that until the
forty-fifth (45th) day following the calendar quarter ending March 31, 1995,
the Debt/Capitalization Ratio shall be deemed to be in the range of 0.550 to
0.599 for purposes of the definition of Alternate Base Rate Spread and
Eurodollar Spread.
"Declining Lender" is defined in Section 2.2.
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"Default" means an event described in Article XII.
"DEKALB" means DEKALB Energy Company, a Delaware corporation.
"DEKALB Merger" means the Acquisition by XPX Acquisitions, Inc., a
Delaware corporation ("XPX") wholly with the Company's common stock (except for
cash for (i) fractional shares, (ii) payments in respect of dissenters' rights
and (iii) certain employee options), of, and the subsequent merger with and
into, DEKALB, with DEKALB as the survivor.
"DEKALB Notes" means (i) DEKALB Energy Company 10% Notes due April 15,
1998 issued in an original aggregate amount not in excess of $50,000,000, and
(ii) DEKALB Energy Company 9-7/8% Notes due July 15, 2000 issued in an original
aggregate amount not in excess of $75,000,000, both issued pursuant to that
certain Indenture, dated as of April 1, 1988, between DEKALB and Continental
Illinois National Bank and Trust Company of Chicago, a national banking
association, as Trustee (the "DEKALB Trustee"), as modified and supplemented by
that certain First Supplemental Indenture, dated as of April 1, 1988, between
DEKALB and the DEKALB Trustee.
"Drilling Partnership" means each general and limited partnership in
existence and which has not been dissolved by action of the general partner at
the Effective Date (other than Apache Offshore Investment Partnership) whose
sole general partner and managing partner, if any, is the Company, and which is
engaged principally in the business of exploration for, and the production of,
oil and gas.
"EBITDDA" means, for any period for which a determination thereof is
to be made, without duplication, the sum of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) depreciation
expense and depletion expense, (iv) amortization expense, (v) federal and state
taxes, (vi) other non-cash charges and expenses and (vii) any losses arising
outside of the ordinary course of business which have been included in the
determination of Consolidated Net Income; less any gains arising outside of the
ordinary course of business which have been included in the determination of
Consolidated Net Income, all as determined on a consolidated basis for the
Company and the Consolidated Subsidiaries.
"Effective Date" means a date agreed upon by the Company, the
Arrangers and the Administrative Agent as the date on which the conditions
precedent set forth in Section 7.1 of this Agreement have been satisfied.
"Effectiveness Notice" means a notice and certificate of the Company
properly executed by an Authorized Officer addressed to the Lenders and
delivered to the Administrative Agent, in sufficient number of counterparts to
provide one for each Lender, whereby the Company certifies satisfaction of all
the conditions precedent to the effectiveness of this Agreement under Section
7.1.
"Engineering Bank" means each of First Chicago and Chemical in their
respective capacities as Engineering Banks.
"Environmental Law" means any federal, state, or local statute, or
rule or regulation promulgated thereunder, any judicial or administrative order
or judgment or written administrative request to which the Company or any
Subsidiary is party or which are applicable to the Company or any Subsidiary or
the Properties (whether or not by consent), and any provision or condition of
any permit, license or other governmental operating authorization, relating to
(A) protection of the environment, persons or the public welfare from actual or
potential exposure for the effects of exposure to any actual or potential
release, discharge, spill or emission (whether past or present) of, or
regarding the manufacture, processing, production, gathering, transportation,
importation, use, treatment,
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storage or disposal of, any chemical, raw material, pollutant, contaminant or
toxic, corrosive, hazardous, or non-hazardous substance or waste, including
petroleum; or (B) occupational or public health or safety.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Advance" means a Eurodollar Bid Rate Advance or a
Eurodollar Revolving Advance.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 3.4.
"Eurodollar Base Rate" means, with respect to a Eurodollar Revolving
Advance or a Eurodollar Bid Rate Advance for the relevant Interest Period, the
rate determined by the Administrative Agent to be the arithmetic average of the
rates reported to the Administrative Agent by each Reference Lender as the rate
at which deposits in U.S. dollars are offered by such Reference Lender to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of such Reference Lender's relevant Eurodollar
Revolving Loan or, in the case of a Eurodollar Bid Rate Loan, the amount of the
Eurodollar Bid Rate Loan requested by the Company, and having a maturity
approximately equal to such Interest Period. If any Reference Lender fails to
provide such quotation to the Administrative Agent, then the Administrative
Agent shall determine the Eurodollar Base Rate on the basis of the quotations
of the remaining Reference Lender.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (i)
the Eurodollar Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the Company.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan which bears
interest at the Eurodollar Bid Rate.
"Eurodollar Loan" means a Eurodollar Bid Rate Loan or a Eurodollar
Revolving Loan.
"Eurodollar Revolving Advance" means a Revolving Advance which bears
interest at a Eurodollar Rate.
"Eurodollar Revolving Loan" means a Revolving Loan which bears
interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Loan or Advance for each
day during the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to that Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to that
Interest Period, plus (ii) the Eurodollar Spread applicable to that day. The
Eurodollar Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.
"Eurodollar Spread" means the applicable rate per annum set forth in
Schedule B.
"Federal Funds Effective Rate" means, for any period for which a
determination thereof is made, a fluctuating interest rate per annum equal for
each day during such period to (i) the weighted average of the rates on
overnight
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federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the preceding Business Day) by the Federal Reserve Bank of
New York; or (ii) if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors and assigns.
"Floating Bid Rate" means, with respect to a Floating Bid Rate Loan
made by a given Lender, the sum of (i) the Alternate Base Rate, changing when
and as the Alternate Base Rate changes, and (ii) the Competitive Bid Margin
offered by such Lender and accepted by the Company.
"Floating Bid Rate Advance" means a Competitive Bid Advance which
bears interest at the Floating Bid Rate.
"Floating Bid Rate Loan" means a Competitive Bid Loan which bears
interest at the Floating Bid Rate.
"Floating Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth the Competitive Bid Margin for Floating Bid Rates pursuant to
Section 3.4.
"Floating Rate Revolving Advance" means a Revolving Advance which
bears interest at the Floating Revolving Rate.
"Floating Rate Revolving Loan" means a Revolving Loan which bears
interest at the Floating Revolving Rate.
"Floating Revolving Rate" means a rate per annum equal to the sum of
the Alternate Base Rate, changing when and as the Alternate Base Rate changes,
plus the Alternate Base Rate Spread, in effect from time to time.
"Guarantor" means each of MW Petroleum, Apache Energy Resources and
any Subsidiary of the Company which is a guarantor pursuant to a Guaranty in
favor of the Agents and the Lenders delivered pursuant to Section 9.11.
"Guaranty" means the MW Guaranty, the Apache Guaranty and each other
Guaranty delivered pursuant to Section 9.11, in each case as such Guaranty may
from time to time be amended, supplemented, restated, reaffirmed or otherwise
modified.
"Hazardous Material" means
i. any "hazardous substance", as defined by CERCLA;
ii. any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
iii. any petroleum, crude oil or any fraction thereof;
iv. any hazardous, dangerous or toxic chemical,
material, waste or substance within the meaning of any Environmental
Law;
v. any radioactive material, including any naturally
occurring radioactive material, and any source, special or by-product
material as defined in 42 U.S.C. Section 2011 et. seq., and any
amendments or reauthorizations thereof;
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vi. asbestos-containing materials in any form or condition; or
vii. polychlorinated biphenyls in any form or condition.
"Hydrocarbon Interests" means leasehold and other interests in or
under leases with respect to property located in the United States of America
and any other countries acceptable to the Required Lenders, mineral fee
interests, production sharing contracts, overriding royalty and royalty
interests, net profit interests and production payment interests, insofar and
only insofar as such interests relate to Hydrocarbons located in the United
States of America and any other countries acceptable to the Required Lenders,
including any reserved or residual interests of whatever nature.
"Hydrocarbons" means oil, gas and all other liquid or gaseous
hydrocarbons and all products refined therefrom and all other minerals and
substances including, sulfur, geothermal steam, water, carbon dioxide, helium
and any and all other minerals, ores or substances of value and the products
and proceeds therefrom.
"include" or "including" means including without limiting the
generality of any description preceding such terms, and, for purposes of this
Agreement and each other Loan Document, the parties hereto agree that the rule
of ejusdem generis shall not be applicable to limit a general statement, which
is followed by or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
"Indebtedness" means, with respect to a Person, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services, including obligations payable out of
Hydrocarbon production, other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade, (iii)
obligations, whether or not assumed, secured by Liens (other than Liens
permitted by Section 11.5, clauses (a) through (d) or clauses (f) through (h))
or payable out of the proceeds of production from property now or hereafter
owned or acquired by such Person, (iv) obligations which are evidenced by
notes, bonds, debentures, acceptances, or other instruments, (v) Capitalized
Lease Obligations, (vi) liabilities under interest rate swap, exchange, collar
or cap agreements and all other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or currency exchange rates,
(vii) liabilities under commodity hedge, commodity swap, exchange, collar or
cap agreements, fixed price agreements and all other agreements or arrangements
designed to protect a person against fluctuations in oil or gas prices, and
(viii) obligations, contingent or otherwise, relative to the amount of all
letters of credit, whether or not drawn, and (ix) all Contingent Obligations of
such Person in respect of any of the foregoing; provided, however, that such
term shall not include any amounts included as deferred credits on the
financial statements of such Person or of a consolidated group including such
Person, determined in accordance with Agreement Accounting Principles; provided
further that for purposes of the foregoing clauses (ii) and (iii), obligations
pursuant to any oil, gas and/or mineral leases, farm-out agreements, division
orders, contracts for the 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, 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 shall not be Indebtedness.
"Indemnified Person" is defined in Section 14.7.
"Interest Period" means, with respect to a Eurodollar Bid Rate Advance
or a Eurodollar Revolving Advance, a period of one (1), two (2), three (3) or,
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subject to availability, six (6) months commencing on a Business Day selected
by the Company pursuant to this Agreement. Such Interest Period shall end on
(but exclude) the day which corresponds numerically to such date one (1), two
(2), three (3) or six (6) months thereafter, provided, however, that if there
is no such numerically corresponding day in such next, second, third or sixth
succeeding month, such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month.
Notwithstanding the foregoing, with respect only to Eurodollar Revolving Loans
and Eurodollar Bid Rate Loans outstanding prior to the ninetieth day following
the Closing Date (or such earlier date communicated to the Company by the
Arrangers), (i) the Company may, select such other Interest Periods as the
Lenders may from time to time agree commencing on a Business Day selected by
the Company and ending on (but excluding) the day such number of days after
such date and (ii) the Company may not select any Interest Period ending after
such ninetieth day (or such earlier date communicated to the Company by the
Arrangers). If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day; provided, however, that if said next succeeding Business Day falls in the
next month, such Interest Period shall end on the immediately preceding
Business Day.
"International" means Apache International, Inc., a Delaware
corporation, Subsidiaries of Apache International, Inc., and Subsidiaries of
the Company which own properties or conduct operations or propose to own
properties or conduct operations exclusively outside of the United States of
America, except for Apache Energy Resources, Subsidiaries of Apache Energy
Resources, Apache Energy Limited, and Apache Overseas, Inc.
"Investment" means, with respect to any Person, any loan, advance,
extension of credit (excluding accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital
by such Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, notes, debentures or other securities of any other
Person made by such Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit H hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 3.4(b).
"July 1991 Agreement" is defined in Recital 1.
"Lenders" means the financial institutions listed on the signature
pages of this Agreement and their respective successors and assigns in
accordance with Section 17.3 (including any commercial lending institution
becoming a party hereto pursuant to an Assignment Agreement) or otherwise by
operation of law.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Lender, the Administrative Agent or any Arranger.
"Lien" means any interest in assets or property securing an obligation
owed to, or a claim by, a Person other than the owner of the asset or property,
whether such interest is based on the common law, statute or contract, and
whether such obligation or claim is fixed or contingent, and including any
security interest, mortgage, pledge, lien, claim, charge, encumbrance, contract
for deed, installment sales contract, production payment, lessor's interest
under a Capitalized Lease or analogous instrument, in, of or on any Person's
assets or properties in favor of any other Person.
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"Limited Recourse Indebtedness" is defined in Section 11.1.
"Loan" means any of the Revolving Loans and the Competitive Bid Loans.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Assignment Agreements, and the agreement with respect to fees described in
Section 2.5(b), 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.
"MW Guaranty" means that certain Guaranty, dated as of July 1, 1991,
by MW Petroleum Corporation, a Delaware corporation, as assumed by MW Petroleum
pursuant to that certain Assumption Agreement, dated as of December 24, 1991,
as amended, supplemented, reaffirmed, restated or otherwise modified.
"MW Petroleum" means MW Petroleum Corporation, a Colorado corporation.
"MWJR" means MWJR Petroleum Corporation, a Delaware corporation.
"Material Adverse Effect" means with respect to any matter that such
matter (i) could reasonably be expected to materially and adversely affect the
assets, business, properties, condition (financial or otherwise), prospects, or
results of operations of the Company and its Subsidiaries, taken as a whole, or
the value or condition of the Properties taken as a whole, or the ability of
the Company or any Subsidiary to perform its respective obligations under any
of the Loan Documents or (ii) has been brought by or before any court or
arbitrator or any governmental body, agency or official, and draws into
question or otherwise has or reasonably could be expected to have a material
adverse effect on the validity or enforceability of any material provision of
any Loan Document against any obligor party thereto or the rights, remedies and
benefits available to the Agents and the Lenders under the Loan Documents.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement to which the Company or any member of the Controlled Group
is a party and to which more than one employer is obligated to make
contributions.
"1992 Revolving Loans" is defined in Recital 2.
"1994 Revolving Loans" is defined in Recital 3.
"1995 Engineers' Report" means those certain engineering reports of
the Company's engineers, Ryder Scott Company Petroleum Engineers, dated as of
January 25, 1995 with respect to the Properties, copies of which have been
delivered to each of the Lenders.
"Non-conforming Borrowing Base" means the amount by which outstanding
Advances may exceed the Borrowing Base then in effect, but in no event shall
such Non-conforming Borrowing Base exceed (a) $135,000,000 prior to May 10,
1996, (b) $85,000,000 on and after May 10, 1996 through November 4, 1996 and
(c) $0.0 thereafter, as such Non-conforming Borrowing Base may be reduced
pursuant to Section 4.2(d) or 4.6 or as a result of a redetermination of the
Borrowing Base or reduction in the Aggregate Available Commitment, provided
that at no time shall the Non-conforming Borrowing Base be increased.
"Note" means any Revolving Note or any Competitive Bid Note.
"Notice of Assignment" is defined in Section 17.3(b).
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"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid facility fees, and all other
obligations of the Company or any Subsidiary to any Lender or any Agent,
whether or not contingent, arising under or in connection with any of the Loan
Documents, and all obligations in respect of any interest rate swap or interest
rate cap or collar agreement or other interest rate hedging agreement entered
into by the Company or any Subsidiary with any Lender.
"Offshore" means Apache Offshore Petroleum Limited Partnership, a
Delaware limited partnership.
"or" as used in this Agreement is not exclusive.
"Original Revolving Loans" is defined in Recital 1.
"Original Term Loans" is defined in Recital 1.
"Original Termination Date" means March 1, 2000.
"Participant" is defined in Section 17.2(a).
"Payment Date" means the second day of January and the first day of
each April, July and October of each calendar year, commencing April 1, 1995.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or any
department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Company or any member of the Controlled Group may
have any liability.
"Projections" means the Company's Operations and Financial Summary
Data consisting of the Company Case dated 2/15/95 and the Liquidating Case
dated 2/2/95.
"Properties" means Hydrocarbon Interests and the properties now or
hereafter pooled or unitized with Hydrocarbon Interests; all presently existing
or future unitization, pooling agreements and declarations of pooled units and
the units created thereby (including without limitation all units created under
orders, regulations and rules of any governmental body or agency having
jurisdiction) which may affect all or any portion of the Hydrocarbon Interests;
all operating agreements, contracts and other agreements which relate to any of
the Hydrocarbon Interests or the production, sale, purchase, exchange or
processing of Hydrocarbons from or attributable to such Hydrocarbon Interests
and such properties; all Hydrocarbons in and under and which may be produced
and saved or attributable to the Hydrocarbon Interests and such properties; all
Hydrocarbons in and under and which may be produced and saved or attributable
to the Hydrocarbon Interests and such properties, the lands covered thereby and
all oil in tanks and all rents, issues, profits, proceeds, products, revenues
and other incomes from or attributable to the Hydrocarbon Interests and such
properties; all tenements, hereditaments, appurtenances and properties in
anywise appertaining, belonging, affixed or incidental to the Hydrocarbon
Interests, properties, rights, titles, interests and estates described or
referred to above, including any and all property, real or personal, now owned
or hereinafter acquired and situated upon, used, held for use or useful in
connection with the operating, working or development of any of such
Hydrocarbon Interests or
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property (excluding drilling rigs, automotive equipment or other personal
property which may be on such premises for the purpose of drilling a well or
for other similar temporary uses) and including any and all oil wells, gas
wells, injection wells or other wells, buildings, structures, fuel separators,
liquid extraction plants, plant compressors, pumps, pumping units, field
gathering systems, tanks and tank batteries, fixtures, valves, fittings,
machinery and parts, engines, boilers, meters, apparatus, equipment,
appliances, tools, implements, cables, wires, towers, casing, tubing and rods,
surface leases, rights-of-way, easements and servitudes together with all
additions, substitutions, replacements, accessions and attachments to any and
all of the foregoing in each case which are owned by the Company or any
Subsidiary.
"Proved Developed Non-Producing Reserves" means, with respect to the
Properties, those quantities of Hydrocarbons, estimated with reasonable
certainty, as demonstrated by geological and engineering data, to be
economically recoverable from the Properties by producing methods under
existing economic conditions using existing equipment and operating methods
from locations which are behind the casing of existing wells or at minor depths
below the present bottom of such wells and which are expected to be produced
through these wells in the predictable future, where a relatively small
expenditure is required for completion or recompletion to make such
Hydrocarbons available for production.
"Proved Developed Producing Reserves" means, with respect to the
Properties, those quantities of Hydrocarbons, estimated with reasonable
certainty, as demonstrated by geological and engineering data, to be
economically recoverable from the Properties by producing methods under
existing economic conditions using existing equipment and operating methods
from existing completion intervals open for production in existing wells.
"Proved Reserves" means, with respect to the Properties, the sum of
Proved Developed Producing Reserves, Proved Developed Non-Producing Reserves
and Proved Undeveloped Reserves.
"Proved Undeveloped Reserves" means, with respect to the Properties,
those quantities of Hydrocarbons, estimated with reasonable certainty, as
demonstrated by geological and engineering data, to be economically recoverable
from the Properties by producing methods under existing economic conditions
using existing equipment, or equipment for which there is a reasonable
expectation of or commitment to installation in the future, and operating
methods from (i) existing wells where a relatively large expenditure is
required for completion or recompletion and (ii) new wells on undrilled
locations (a) which are direct offsets to existing wells then or previously
open for production, (b) which are within known proved productive limits of the
subject formation, estimated with reasonable certainty, (c) which conform to
existing completion intervals for existing wells and (d) which will be
developed with a reasonable degree of certainty.
"Purchase and Sale Agreement" means that certain Purchase and Sale
Agreement dated December 22, 1994 by and between Texaco and the Company, as the
same may be amended, supplemented or otherwise modified from time to time.
"Purchaser" is defined in Section 17.3(a).
"Qualified Long Term Rating" means in respect of any Person, a Person
which has publicly traded debt securities rated either A- or higher by Standard
& Poor's Corporation or A(3) or higher by Moody's Investors Service, Inc.
"Rate Option" means the Eurodollar Rate or the Floating Rate.
"Rating Agency" means each of Duff & Phelps Credit Rating Company,
Moody's Investors Service, Inc. and Standard & Poor's Corporation.
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"Reference Lenders" means First Chicago and Chemical.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors or any successor Person relating to reserve requirements applicable
to member banks of the Federal Reserve System or any successor Person.
"Regulation U" means any of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations of said
Board of Governors 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.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 2.2.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such waivers in
accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means, as of any date of determination, Lenders
(including First Chicago and Chemical) having in the aggregate at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders holding at least 66-2/3% of the then outstanding principal
amount of the Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or regulations issued from time to time by the Board
of Governors of the Federal Reserve System) which is then applicable to assets
or liabilities consisting of and including with a maturity equal to that of the
"Eurocurrency Liabilities", as defined in Regulation D, having a term
approximately equal or comparable to such Interest Period.
"Revolving Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Revolving Loans made by the Lenders or any of
them to the Company on the same Borrowing Date, at the same Rate Option and, in
the case of Eurodollar Revolving Loans, for the same Interest Period.
"Revolving Loan" means, with respect to a Lender, a revolving loan
made by such Lender pursuant to Sections 2.2 and 3.3 as the result of a
Borrowing Notice from the Company requesting an Advance.
"Revolving Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto (with appropriate insertions and deletions), duly executed
and delivered to the Administrative Agent by the Company and payable to the
order of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Sale" means any sale, transfer, assignment, lease, conveyance,
exchange, swap or other disposition.
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"Schedules" means Schedules A, 8.8, 11.1 and 11.12 hereto.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of
the Controlled Group.
"Solvent" means, with respect to any Person at any time, a condition under
which
the fair saleable value of such Person's assets
is, on the date of determination, greater than the total amount of
such Person's liabilities (including contingent and unliquidated
liabilities) at such time;
such Person is able to pay all of its liabilities
as such liabilities mature; and
such Person does not have unreasonably small
capital with which to conduct its business.
For purposes of this definition
(i) the amount of a Person's contingent or
unliquidated liabilities at any time shall be that amount
which, in light of all the facts and circumstances then
existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(ii) the "fair saleable value" of an asset
shall be the amount which may be realized within a
reasonable time either through collection or sale of such
asset at its regular market value; and
(iii) the "regular market value" of an asset
shall be the amount which a capable and diligent business
person could obtain for such asset from an interested buyer
who is willing to purchase such asset under ordinary
selling conditions.
"Stated Maturity Date" is defined in Section 3.4(a).
"Subordinated Indebtedness" means any Indebtedness described in
Schedule 11.1 as subordinated indebtedness and any Indebtedness of the Company
or any of its Subsidiaries permitted pursuant to Section 11.1(c).
"Subsidiary" means, with respect to any Person, 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 such Person; provided, that
with respect to the Company, Subsidiaries shall include 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; further provided, that, notwithstanding the
foregoing, Subsidiaries of the Company shall not include, 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), Apache Energy
Limited and its Subsidiaries.
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"Termination Date" means the Original Termination Date, or such other
later date as may result from any extension requested by the Company and
consented to by the Lenders pursuant to Section 2.2.
"Texaco" means Texaco Exploration and Production Inc., a Delaware
corporation.
"Texaco Acquisition" means the acquisition by the Company pursuant to
the Purchase and Sale Agreement of Properties as described therein.
"Transferee" is defined in Section 17.4.
"Unfunded Liabilities" means, (i) in the case of Single Employer
Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value of all
Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans, and (ii) in the case of Multiemployer
Plans, the withdrawal liability that would be incurred by the Controlled Group
if all members of the Controlled Group completely withdrew from all
Multiemployer Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Utilized Commitment" means the sum of the aggregate outstanding
principal amount of Loans. With respect to each Lender, its share, in dollars,
of the Utilized Commitment shall be calculated as the sum of the aggregate
outstanding principal amount of such Lender's Loans.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly
or indirectly, by the Company or one or more Wholly-Owned Subsidiaries, or by
the Company and one or more Wholly-Owned Subsidiaries, or any similar business
organization which is so owned or controlled.
1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Schedule and Exhibit
hereto and in each Note, Borrowing Notice, Competitive Bid Borrowing Notice,
Continuation/Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
1.3. Cross References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article, Section,
Exhibit or Schedule are references to such Article or Section of or Schedule or
Exhibit to this Agreement or such other Loan Document, as the case may be, and,
unless otherwise specified, references in any Article, Section or definition to
any clause are references to such clause of such Article, Section or
definition.
1.4. Accounting and Financial Determination. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder, and all financial statements required to be delivered hereunder or
thereunder, shall be prepared in accordance with, the Agreement Accounting
Principles.
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ARTICLE II
THE FACILITIES
2.1. The Facility.
(a) Description of Facility. On the Effective Date,
all outstanding 1994 Revolving Loans shall be renewed, restated,
extended and converted into (but shall not be deemed to be repaid)
Revolving Loans under this Agreement; provided, however, that from and
including the Effective Date the Eurodollar Spread applicable with
respect to such renewed, restated, extended and converted 1994
Revolving Loans shall be determined pursuant to this Agreement. On
the terms and subject to the conditions set forth in this Agreement
(including satisfaction of the conditions precedent set forth
in Article VII), the Lenders grant to the Company a revolving credit
facility pursuant to which, and upon the terms and conditions herein
set out:
(i) each Lender severally agrees to make
Revolving Loans to the Company in
accordance with this Section and
Article III; and
(ii) each Lender may, in its sole
discretion, make bids to make
Competitive Bid Loans to the Company in
accordance with this Section and
Article III.
(b) Facility Amount. In no event may the aggregate
principal amount of all outstanding Loans (including both the
Revolving Loans and the Competitive Bid Loans) exceed the Aggregate
Available Commitment and no Lender shall be obligated to make any Loan
hereunder if, after giving effect to such Loan, the sum of the
aggregate outstanding principal amount of all Loans would exceed the
Aggregate Available Commitment (as then in effect after giving effect
to any reductions thereof to be effectuated on such day).
(c) All Loans. Subject to the terms and conditions of
this Agreement, the Company may borrow, repay and reborrow all Loans
made under this Agreement at any time prior to the Termination Date.
The obligations of the Lenders to make Loans shall cease on the
Termination Date, and any and all Loans outstanding on such date shall
be due and payable on such date.
(d) Revolving Advances. Each Revolving Advance
hereunder shall consist of borrowings made from the several Lenders
ratably in proportion to the amounts of their respective Commitments.
The aggregate outstanding amount of Competitive Bid Loans shall reduce
each Lender's portion of the Aggregate Available Commitment ratably in
the proportion such Lender's Commitment bears to the Aggregate
Commitment regardless of which Lender or Lenders makes such
Competitive Bid Loans.
(e) Competitive Bid Loans. In addition to Revolving
Loans pursuant to Section 2.1(d), but subject to the terms and
conditions of this Agreement (including, without limitation, the
limitation set forth in Section 2.1(b) as to the maximum aggregate
principal amount of all outstanding Loans hereunder, the Company may,
as set forth in this Section 2.1(e) and Article III, at any time
request the Lenders, prior to the Termination Date, to make offers to
make Competitive Bid Advances to the Company. Each Lender may, but
shall have no obligation to, make such offers and the Company may, but
shall have no obligation to, accept such offers.
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2.2. Extension of Termination Date and of Commitment.
(a) Subject to the other provisions of this Agreement,
the Aggregate Commitment shall be effective for an initial period from
the Effective Date to the Original Termination Date; provided that the
Aggregate Commitment, and concomitantly the Termination Date, may be
extended for successive one year periods expiring on the date which is
one (1) year from the then scheduled Termination Date. If the Company
shall request in an Annual Certificate of Extension delivered to the
Administrative Agent concurrently with delivery of the Approved
Engineers' Report delivered prior to the then scheduled Termination
Date pursuant to Section 9.1(d) that the Aggregate Commitment be
extended for one year from the then scheduled Termination Date, then
the Administrative Agent shall promptly notify each Lender of such
request and each Lender shall notify the Administrative Agent, no
later than the next date by which each Lender is required, pursuant to
Section 2.3(a), to (i) approve or disapprove the Engineering Banks'
determination of the Borrowing Base and (ii) whether it, in the
exercise of its sole discretion, will extend the Termination Date for
such one year period. Any Lender which shall not timely notify the
Administrative Agent whether it will extend the Termination Date shall
be deemed to not have agreed to extend the Termination Date. No
Lender shall have any obligation whatsoever to agree to extend the
Termination Date. Any agreement to extend the Termination Date by any
Lender shall be irrevocable, except as provided in Section 2.2(c).
(b) If all the Lenders notify the Administrative Agent
pursuant to clause (a) of this Section 2.2 of their agreement to
extend the Termination Date (such Lenders agreeing to extend the
Termination Date herein called the "Accepting Lenders"), then the
Administrative Agent shall so notify each Lender and the Company, 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 Termination Date
and if one (1) or more of the Lenders shall notify, or be deemed to
notify, the Administrative Agent pursuant to clause (a) of this Section
2.2 that it will not extend the then scheduled Termination Date (such
Lenders herein called the "Declining Lenders"), then (A) the
Administrative Agent shall promptly so notify the Company and the
Accepting Lenders, (B) the Accepting Lenders shall, upon the Company's
election to extend the then scheduled Termination Date in accordance
with clause (i) or (ii) below, extend the then scheduled Termination
Date and (C) the Company shall pursuant to a notice delivered to the
Administrative Agent, the Accepting Lenders and the Declining Lenders,
no later than the fifth day following the date by which each Lender is
required, pursuant to Section 2.2(a), to approve or disapprove the
requested extension of the Aggregate Commitment, either:
(i) elect to extend the Termination Date
with respect to the Accepting Lenders and direct the
Declining Lenders to terminate their Commitments, which
termination shall become effective on the date which would
have been the Termination Date except for the operation of
this Section 2.2. On such date, (x) the Company shall
deliver a notice of the effectiveness of such termination
to the Declining Lenders with a copy to the Administrative
Agent and (y) the Company shall pay in full in immediately
available funds all Obligations of the Company owing to the
Declining Lenders 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
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purposes of Section 14.7, and shall cease to have any obligations or
any Commitment hereunder, other than to the Agents pursuant to Section
15.8 and the Administrative Agent shall promptly notify the Accepting
Lenders and the Company of the new Aggregate Commitment; or
(ii) elect to extend the Termination Date
with respect to the Accepting Lenders and, prior to or no
later than the then scheduled Termination Date, (A) to
replace one or more of the Declining Lender or Lenders with
another lender or lenders reasonably acceptable to the
Administrative Agent (such lenders herein called the
"Replacement Lenders") and (B) the Company shall pay in
full in immediately available funds all Obligations of the
Company owing to the Declining Lenders which are not being
replaced, as provided in clause (i) above; provided that
(x) the Replacement Lender or Lenders shall purchase, and
the Declining Lender or Lenders shall sell, the Notes of
the Declining Lender or Lenders being replaced and the
Declining Lender's or Lenders' rights hereunder without
recourse or expense to, or warranty by, such Declining
Lender or Lenders being replaced for a purchase price equal
to the aggregate outstanding principal amount of the Note
or Notes payable to such Declining Lender or Lenders plus
any accrued but unpaid interest on such Note or Notes and
accrued but unpaid fees in respect of such Declining
Lender's or Lenders' Loans and Commitments hereunder, and
(y) all obligations of the Company owing under or in
connection with this Agreement to the Declining Lender or
Lenders being replaced (including, without limitation, such
increased costs, breakage fees payable under Section 6.3
and all other costs and expenses payable to each such
Declining Lender) shall be paid in full in immediately
available funds to such Declining Lender or Lenders
concurrently with such replacement, and (z) upon the
payment of such amounts referred to in clauses (x) and (y),
the Replacement Lender or Lenders shall each constitute a
Lender hereunder and the Declining Lender or Lenders being
so replaced shall no longer constitute a Lender (other than
for purposes of Section 14.7), and shall no longer have any
obligations hereunder, other than to the Agents pursuant to
Section 15.8; or
(iii) elect to revoke and cancel the
extension request in such Annual Certificate of Extension
by giving notice of such revocation and cancellation to the
Administrative Agent (which shall promptly notify the
Lenders thereof) no later than the fifth day following the
date by which each Lender is required, pursuant to Section
2.2(a), to approve or disapprove the requested extension of
the Aggregate Commitment.
If the Company fails to timely provide the election notice referred to
in this clause (c), the Company shall be deemed to have revoked and cancelled
the extension request in the Annual Certificate of Extension and to have elected
not to extend the Aggregate Commitment, and the concomitant Termination Date
with respect to the Accepting Lenders, and on the then scheduled Termination
Date the Company shall repay in full all amounts outstanding under the Loans.
2.3. Borrowing Base and Aggregate Available Commitment.
(a) Initial Borrowing Base; Scheduled Semi-Annual and
Discretionary Determinations of the Borrowing Base; Procedures for
Determination of the Borrowing Base. The initial Borrowing Base shall
be $765,000,000. The Borrowing Base shall be redetermined upon
receipt by the Administrative Agent, the Engineering Banks and the
Lenders of the
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relevant Approved Engineers' Report or Company's Engineers' Report, as
the case may be, pursuant to Sections 2.3(b) or (e) or 9.1(d), (e) or
(f). The redeterminations of the Borrowing Base described in the
preceding sentence shall be made as follows: The Engineering Banks
shall make a determination of the Borrowing Base in accordance with
the criteria described in clause (c) of this Section 2.3, within
thirty (30) days after receipt of the Approved Engineers' Report or
the Company's Engineers' Report, as the case may be. Within ten (10)
days following such determination, the Administrative Agent shall
notify the Lenders in writing of such determination the amount, if
any, of the Non-conforming Borrowing Base and the resulting Aggregate
Available Commitment. Each Lender shall notify the Administrative
Agent in writing, by telex or by facsimile transmission whether it
approves or disapproves of any such determination within ten (10)
Business Days of its receipt of such notice from the Administrative
Agent; provided that any Lender which does not so notify the
Administrative Agent shall be deemed to have approved of such
determination. Upon the approval (or deemed approval) by the Required
Lenders, such determination shall thereafter be the Borrowing Base or
the Aggregate Available Commitment, as the case may be, and the
Administrative Agent shall within five (5) days of such approval
notify the Company in writing of such redetermined Borrowing Base.
The Administrative Agent shall promptly notify the Company and the
Lenders of any change in the Borrowing Base. Additionally, the
Aggregate Available Commitment may or will be reduced from time to
time as provided in Sections 2.3(d), (e) and (f), Section 4.2(d) and
Section 11.1.
(b) Determination of Borrowing Base at Request of
Company. The Company may request one Borrowing Base determination
between any regularly scheduled semi-annual redeterminations of the
Borrowing Base by delivery to the Administrative Agent, the
Engineering Banks and the Lenders of a written request for such
determination; provided that a deemed request for a determination of
the Borrowing Base pursuant to Section 11.1(c), (d) or (e) shall not
preclude the Company's requesting a Borrowing Base determination to
which it is otherwise entitled pursuant to this clause (b). In
connection with such determination the Company shall deliver to the
Administrative Agent, the Engineering Banks and the Lenders such
reports and information concerning the Properties (which may include
in the Engineering Banks' sole discretion an Approved Engineers'
Report or a Company's Engineers' Report as of such date) as the
Engineering Banks shall deem appropriate in its or their sole
discretion.
(c) Criteria for Determination of the Borrowing Base.
Each determination by the Engineering Banks and the approval by the
Required Lenders of the Borrowing Base attributable to the Properties
owned by the Company and its Subsidiaries including Properties owned
through partnerships (but not to exceed in each case an undivided
share of such Properties equal to the Company's ownership share of
such partnerships) shall be made by them in the exercise of their
respective sole discretion based on their then current engineering
criteria and oil and gas lending criteria, all as determined using the
then most recently received Approved Engineers' Report or Company's
Engineers' Report, as the case may be, and, subject to the approval of
the Required Lenders to the extent set forth in clause (a) of this
Section 2.3, shall be conclusive and binding in the absence of
manifest error.
(d) Redeterminations of Borrowing Base Upon Material
Adverse Effect. In the event of:
(i) the assertion or filing of any adverse
claim, defect or encumbrance affecting or purporting to
affect the title of the Company or any Subsidiary to any
Property; or
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(ii) any blow out or other casualty
affecting any Property or the production of oil and gas
therefrom; or
(iii) any withholding after one hundred
twenty (120) days following commencement of production by
any Person of sums due the Company or any Subsidiary in
respect of Hydrocarbons produced, which withholding results
from an allegation or claim affecting such Person's rights
to such payment;
which would have or be a Material Adverse Effect, the Engineering
Banks shall have the right in their sole discretion to reduce the
Borrowing Base, either temporarily or permanently, by the amount
included therein with respect to the interest as to which a claim,
defect, encumbrance, withholding or dispute has arisen or exists or a
casualty has occurred. The failure of the Engineering Banks to make
any such reduction upon receipt of any notice with respect to any such
claim, dispute or casualty shall not preclude their later election to
so reduce the Borrowing Base.
(e) Redetermination of Borrowing Base Upon Material
Changes. In the event that "material changes" occur between the dates
of determination of the Borrowing Base (i) in oil and/or gas prices,
(ii) in taxes, (iii) in anticipated rates or amounts of production
from any Properties included in the Borrowing Base, (iv) in the
Company's or any Subsidiary's, as the case may be, title or purported
title to the Properties, (v) in operating, lease, royalty and other
arrangements relating to the Properties, (vi) in operating costs with
respect to the Properties, or (vii) in the Company's anticipated
revenues as a result of the Company or any of its Subsidiaries'
granting a Lien upon any of its Properties securing Indebtedness
permitted by Section 11.1(g) or incurring Indebtedness permitted by
Section 11.1(g), then in any such event the Engineering Banks may, in
their sole discretion, redetermine the Borrowing Base in accordance
with the standards set forth in Section 2.3(c) prior to the receipt of
either a new Approved Engineers' Report or a new Company's Engineers'
Report by adjusting the Borrowing Base to reflect the changes which
have occurred. For the purposes hereof, "material changes" shall be
deemed to have occurred for purposes of this Section 2.3(e) when such
changes would in the aggregate result in a material decrease in the
Borrowing Base as determined by the Engineering Banks in their sole
and absolute discretion.
(f) Reduction of Aggregate Available Commitment Upon
Sales of Certain Properties. Upon consummation of the Sale of any
Property in the Borrowing Base constituting a permitted and designated
Sale under clause (iii) of Section 11.3, the Aggregate Available
Commitment shall be reduced on account of such Sale by an amount equal
to the proceeds of such Sale net of reasonable incidental brokerage
and legal costs actually paid to third parties, net of taxes
associated with such Sale payable in cash concurrently with the
consummation of such Sale, and net of federal and state income taxes
estimated to be due in respect of such Sale by the Company acting
reasonably and in good faith, provided reserves for such taxes are
established by the Company. Upon the consummation of the Sale of any
Property in the Borrowing Base constituting a permitted Sale under
clause (iv) of Section 11.3, the Aggregate Available Commitment shall
be reduced by an amount equal to the amount of the mandatory
prepayment, if any, required to be made under Section 4.2(d) on
account of such Sale.
(g) Title Warranty. Delivery to the Lenders of any
Approved Engineers' Report or Company's Engineers' Report shall be
deemed to be a reaffirmation as of the date of delivery of such report
of the representation and warranties in Section 8.14.
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2.4. [Intentionally Omitted.]
2.5. Facility Fee; Other Fees.
(a) Facility Fee.
(i) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility
fee for the period from (and including) the date
hereof to the Termination Date, at the applicable
rates per annum set forth in Schedule B on such
Lender's ratable portion of the Aggregate
Available Commitment as in effect from time to
time; provided, however, that a reduction in a
Lender's portion of the Aggregate Available
Commitment pursuant to Section 2.1(d) shall not
reduce such Lender's ratable portion of the
Aggregate Available Commitment for the purposes of
this Section 2.5(a)(i).
(ii) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility
fee for the period from (and including) the date
hereof to the Termination Date, at one-half of the
rates applicable per annum set forth in Schedule B
on such Lender's ratable portion of the Aggregate
Unavailable Commitment as in effect from time to
time; provided, however, that a reduction in a
Lender's portion of the Aggregate Available
Commitment pursuant to Section 2.1(d) shall not
reduce such Lender's ratable portion of the
Aggregate Unavailable Commitment for the purposes
of this Section 2.5(a)(ii).
Facility fees accruing pursuant to this Section 2.5(a) shall be
payable in arrears on each Payment Date hereafter and on the
Termination Date. In addition to the foregoing, the Company agrees to
pay all fees accruing prior to date hereof with respect to each
Lender's commitments under the April 1994 Agreement.
(b) Agents' Fees. The Company shall pay to each Agent
for its own respective account such fees in connection with this
Agreement as previously have been agreed in a writing among them (as
such writing may hereafter be amended, supplemented, restated or
otherwise modified and in effect).
ARTICLE III
BORROWING; SELECTING RATE OPTIONS; ETC.
3.1. Method of Borrowing.
(a) Revolving Loans. Not later than noon Chicago time
on each Borrowing Date for Revolving Loans, each Lender shall make
available its Loan or Loans, in funds immediately available in
Chicago, to the Administrative Agent at its address specified pursuant
to Article XVIII. The Administrative Agent will make the funds so
received from the Lenders with respect to Revolving Loans available to
the Company at the Administrative Agent's aforesaid address.
(b) Competitive Bid Loans. Not later than noon
Chicago time on the Borrowing Date specified for each Competitive Bid
Loan, each Lender whose Competitive Bid Quote in respect thereof the
Company accepted pursuant to Section 3.4(e) shall make available its
Competitive Bid Loan,
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in funds immediately available in Chicago, to the Administrative Agent
at its address specified pursuant to Article XVIII. The Administrative
Agent will make the funds so received from the Lenders with respect to
Competitive Bid Loans available to the Company at the Administrative
Agent's aforesaid address.
3.2. [Intentionally Omitted.]
3.3. Method of Selecting Rate Options and Interest Periods for
Revolving Loans. The Company shall select the Rate Option and Interest Period
applicable to each Revolving Advance from time to time. The Company shall give
the Administrative Agent irrevocable notice (a "Borrowing Notice") not later
than (a) 10:00 a.m. Chicago time on the Borrowing Date of each Floating Rate
Revolving Advance, and (b) 11:00 a.m. Chicago time at least three (3) Business
Days before the Borrowing Date for each Eurodollar Revolving Advance,
specifying:
(i) the Borrowing Date, which shall be a
Business Day, of such Revolving Advance,
(ii) the aggregate amount of such Revolving
Advance,
(iii) the Rate Option selected for such
Revolving Advance,
(iv) in the case of each Eurodollar
Revolving Advance, the Interest Period applicable thereto.
Each Eurodollar Revolving Advance shall bear interest from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined from time to
time as applicable to such Eurodollar Revolving Advance. The Company shall
select Interest Periods with respect to Eurodollar Revolving Advances so that
it is not necessary to pay a Eurodollar Revolving Advance prior to the last day
of the applicable Interest Period in order to make the mandatory repayment on
the Termination Date.
3.4. Competitive Bid Loans.
(a) Competitive Bid Quote Request. When the Company
wishes to request offers to make Competitive Bid Loans under this
Agreement, it shall transmit to the Administrative Agent by telex or
telecopy a Competitive Bid Quote Request substantially in the form
of Exhibit E hereto so as to be received no later than (i) 10:00 a.m.
(Chicago time) at least four Business Days prior to the Borrowing Date
proposed therein, in the case of a Eurodollar Auction or (ii) 9:00
a.m. (Chicago time) at least one Business Day prior to the Borrowing
Date proposed therein, in the case of a Floating Rate Auction
specifying:
(i) the proposed Borrowing Date, which
shall be a Business Day, for the proposed Competitive Bid
Advance;
(ii) the aggregate principal amount of such
Competitive Bid Advance;
(iii) whether the Competitive Bid Quotes
requested are to set forth a Eurodollar Bid Rate or a
Floating Bid Rate, or both;
(iv) in the case of each Floating Rate
Auction, the maturity date (relative to each Competitive
Bid Loan, its "Stated Maturity Date") for the proposed
Competitive Bid Advance (which Stated Maturity Date may not
be earlier than the date occurring
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seven (7) days after the proposed Borrowing Date of such
Competitive Bid Advance or later than the earlier of (x)
the date occurring 185 days after the proposed Borrowing
Date of such Competitive Bid Advance and (y) the
Termination Date); and
(v) in the case of each Eurodollar Bid Rate
Advance, the Interest Period applicable thereto (which may
not end after the Termination Date); provided that the
final day of the Interest Period applicable to each
Eurodollar Bid Rate Loan shall be the Stated Maturity Date
thereof.
The Company may request offers to make Competitive Bid
Loans for more than one Interest Period in a single Competitive Bid
Quote Request. No Competitive Bid Quote Request shall be given within
5 Business Days (or such other number of days as the Company and the
Administrative Agent may agree) of any other Competitive Bid Quote
Request. A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit E hereto shall be rejected, and
the Administrative Agent shall promptly notify the Company of such
rejection by telex or telecopy.
(b) Invitation for Competitive Bid Quotes. Promptly
and in any event before the close of business on the same Business Day
of receipt of a Competitive Bid Quote Request that is not rejected
pursuant to Section 3.4(a), the Administrative Agent shall send to each
of the Lenders by telex or telecopy an Invitation for Competitive Bid
Quotes substantially in the form of Exhibit H hereto, which shall
constitute an invitation by the Company to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with
this Section 3.4; provided that the Administrative Agent shall not be
required to send an Invitation for Competitive Bid Quotes to any
Lender that has failed to submit a Competitive Bid Quote after each of
the last three Invitations for Competitive Bid Quotes sent to such
Lender unless the Company or such Lender has given notice to the
Administrative Agent specifically referring to such Invitation for
Competitive Bid Quotes and requesting that this proviso not apply to
such Invitation for Competitive Bid Quotes, in which case this proviso
automatically shall not apply to such Invitation for Competitive Bid
Quotes.
(c) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans in response
to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the
requirements of this Section 3.4(c) and must be
submitted to the Administrative Agent by telex or
telecopy at its offices specified pursuant to
Article XVIII not later than (a) 10:00 a.m.
(Chicago time) at least three Business Days prior
to the proposed Borrowing Date, in the case of a
Eurodollar Auction or (b) 9:00 a.m. (Chicago time)
on the proposed Borrowing Date, in the case of a
Floating Rate Auction (or, in either case upon
reasonable prior notice to the Lenders, such other
time and date as the Company and the
Administrative Agent may agree); provided that
Competitive Bid Quotes submitted by First Chicago
may only be submitted if the Administrative Agent
or First Chicago notifies the Company of the terms
of the offer or offers contained therein not later
than 15 minutes prior to the latest time at which
the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to
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Articles VII and XII, any Competitive Bid Quote so
made shall be irrevocable except with the written
consent of the Administrative Agent given on the
instructions of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit K hereto and
shall in any case specify:
a. the proposed Borrowing Date, which
shall be the same as that set forth in the applicable
Invitation for Competitive Bid Quotes;
b. the Stated Maturity Date and the
principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $5,000,000 and an
integral multiple of $1,000,000, and (3) may not exceed the
principal amount of Competitive Bid Loans for which offers
were requested;
c. the Competitive Bid Margin offered for
each such Competitive Bid Loan;
d. the minimum amount, if any, of the
Competitive Bid Loan which may be accepted by the Company;
and
e. the identity of the quoting Lender.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
a. is not substantially in the form of
Exhibit K hereto or does not specify all of the information
required by Section 3.4(c)(ii);
b. contains qualifying, conditional or
similar language, other than any such language contained in
Exhibit K hereto;
c. proposes terms other than or in
addition to those set forth in the applicable Invitation
for Competitive Bid Quotes; or
d. arrives after the time set forth in
Section 3.4(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 3.4(c)(iii), then the Administrative Agent shall notify
the relevant Lender of such rejection as soon as practical.
(d) Notice to Company. The Administrative Agent shall
promptly notify the Company of the terms (i) of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 3.4(c)
and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative
Agent's notice to the Company shall specify the aggregate principal
amount of Competitive Bid Loans for which offers
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have been received for each Interest Period or Stated Maturity Date
specified in the related Competitive Bid Quote Request and the
respective principal amounts and Eurodollar Bid Rates or Floating Bid
Rates, as the case may be, so offered.
(e) Acceptance and Notice by Company. Not later than
(i) 11:00 a.m. (Chicago time) at least three Business Days prior to
the proposed Borrowing Date, in the case of a Eurodollar Auction or
(ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the
case of a Floating Rate Auction (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Company
and the Administrative Agent may agree), the Company shall notify the
Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 3.4(d); provided, however, that the
failure by the Company to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount and the Interest Period and
Stated Maturity Date of each offer that is accepted. The Company may
accept any Competitive Bid Quote in whole or in part (subject to the
terms of Section 3.4(c)(ii)d); provided that:
a. the aggregate principal amount of each
Competitive Bid Advance may not exceed the applicable
amount set forth in the related Competitive Bid Quote
Request;
b. acceptance of offers may only be made
on the basis of ascending Eurodollar Bid Rates or Floating
Bid Rates, as the case may be; and
c. the Company may not accept any offer
that is described in Section 3.4(c)(iii) or that otherwise
fails to comply with the requirements of this Agreement.
(f) Allocation by Administrative Agent. If offers are
made by two or more Lenders with the same Eurodollar Bid Rates or
Floating Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amount
of such offers; provided, however, that no Lender shall be allocated a
portion of any Competitive Bid Advance which is less than the minimum
amount which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same
Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such
Competitive Bid Advance allocated to each participating Lender.
3.5. Minimum Amount of Each Advance. Each requested Advance
shall be in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if
in excess thereof); provided, however, that any Floating Bid Rate Advance and
any Floating Rate Revolving Advance may be in the amount of the difference
between (i) the Aggregate Available Commitment minus (ii) the sum of the
outstanding principal amount of all Loans.
3.6. Continuation and Conversion Elections. By providing a
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m.
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Chicago time, in the case of a Eurodollar Revolving Loan, or 10:00 a.m. Chicago
time, in the case of a Floating Rate Revolving Loan, on a Business Day, the
Company may from time to time irrevocably elect, on, in the case of a
Eurodollar Revolving Loan, not less than three nor more than five, and in the
case of a Floating Rate Revolving Loan not less than one or more than three,
Business Days' notice, that all, or any portion in an aggregate minimum amount
of $5,000,000 and an integral multiple of $1,000,000 or the remaining balance
of any Revolving Loans be, in the case of Floating Rate Revolving Loans
converted into Eurodollar Revolving Loans or, in the case of Eurodollar
Revolving Loans converted into Floating Rate Revolving Loans or continued as
Eurodollar Revolving Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any Eurodollar Revolving Loan at
least three Business Days before the last day of the then current Interest
Period with respect thereto, such Eurodollar Revolving Loan shall, on such last
day, automatically convert to a Floating Rate Revolving Loan); provided,
however, that no portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, a Eurodollar Advance when any Default
has occurred and is continuing.
3.7. Telephonic Notices. The Company hereby authorizes the
Lenders and the Administrative Agent to extend Advances, effect Rate Option
selections and submit Competitive Bid Quotes based on telephonic notices made
by any Person or Persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Company. The Company agrees to deliver
promptly to the Administrative Agent a written confirmation of each telephonic
notice signed by an Authorized Officer. If the written confirmation differs in
any material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
3.8. Rate after Maturity. Except as provided in the next
sentence, any Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum equal to
the Floating Revolving Rate plus 2%. In the case of a Eurodollar Advance the
maturity of which is accelerated, such Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period, at the higher of the rate
(including the Eurodollar Spread or the Competitive Bid Margin, as applicable)
otherwise applicable to such Interest Period plus 2% per annum or the Floating
Revolving Rate plus 2% per annum.
3.9. Interest Payment Dates; Determination of Interest and Fees.
(a) Interest Payment Dates.
(i) Interest accrued and unpaid on each
Floating Rate Revolving Advance shall be payable on each
Payment Date and on any date on which such Floating Rate
Revolving Advance is paid or prepaid, whether due to
acceleration or otherwise. Interest accrued on each
Eurodollar Revolving Advance shall be payable on the last
day of its applicable Interest Period and on any date on
which such Eurodollar Revolving Advance is prepaid, whether
due to acceleration or otherwise. Interest accrued on each
Eurodollar Revolving Advance having an Interest Period
longer than three (3) months shall also be payable on the
last day of each three-month interval during such Interest
Period.
(ii) Interest on the outstanding principal
amount of Competitive Bid Loans shall be payable on the
Stated Maturity Date for each such Competitive Bid Loan;
provided, however, that in the case of a Eurodollar Bid
Rate Advance having an Interest Period longer than three
(3) months, interest accrued on such Eurodollar
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Bid Rate Advance shall also be payable on the last day of
each three-month interval during such Interest Period.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local
time) at the place of payment. If any payment of principal of, or interest on,
an Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day (except as provided in the
definition of Interest Period) and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
(b) Determination of Interest and Fees. Interest on
any Advance or portion thereof bearing interest at the Floating
Revolving Rate or the Floating Bid Rate and facility fees shall be
calculated for actual days elapsed on the basis of a 365- or, if
applicable, 366-day year, and all other interest and fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
Changes in the Alternate Base Rate Spread and the Eurodollar Spread
attributable to a change in the Debt/Capitalization Ratio or to a
change in the Company's Long-term Debt Rating, if any, shall be
effective on the forty-fifth (45th) day of a calendar quarter.
3.10. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each commitment reduction
notice, Borrowing Notice, Continuation/Conversion Notice, Competitive Bid Quote
Request and repayment notice received by it hereunder. The Administrative
Agent will notify each Lender of the Eurodollar Rate applicable to each
Eurodollar Advance promptly upon determination of such Eurodollar Rate and will
give each Lender prompt notice of each change in the Alternate Base Rate. Each
Reference Lender agrees to furnish timely information for the purpose of
determining the Eurodollar Rate.
3.11. Non-Receipt of Funds by the Administrative Agent. Unless
the Company or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Company, a payment of principal, interest, fees or
other amounts to the Administrative Agent for the account of the Lenders or any
Agent, that it does not intend to make such payment, the Administrative Agent
may assume that such payment has been made. The Administrative Agent may, but
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Company, as the case may be, has not in fact made such payment to the
Administrative Agent, the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Company, the interest rate applicable to the relevant Loan or, in the case of
payments in respect of interest, fees or other amounts, at a rate equal to the
Floating Rate.
ARTICLE IV
MANDATORY PAYMENTS; REDUCTIONS OF COMMITMENTS; ETC.
4.1. [Intentionally Omitted.]
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4.2. Mandatory Prepayments.
(a) Mandatory Prepayment on Account of Excess of
Outstandings Over Aggregate Available Commitment. In the event that
after giving effect to all other payments or prepayments required to
be made under this Section 4.2 on any Business Day the aggregate
outstanding principal amount of the Loans shall at any time exceed the
Aggregate Available Commitment, the Company shall within ninety (90)
days make a mandatory prepayment on the Loans in an amount equal to
such excess together with all interest accrued on the amount of such
prepayment to the date thereof. Notwithstanding that the Company
shall have a 90-day period in which to make any mandatory prepayment
specified in this Section 4.2(a), (i) the Company shall not be entitled
to borrow Loans during such period without meeting the test
under Section 2.1(b) and (ii) the Company shall make all other
prepayments and payments required under or in connection with this
Agreement as required; provided, that for purposes of the foregoing
provisions of this sentence the conversion of an outstanding
Eurodollar Loan into a Floating Rate Loan during such period shall not
be deemed to be the borrowing of a Loan.
(b) Mandatory Prepayment on Account of Sales of
Certain Properties Included in the Borrowing Base. Promptly upon the
consummation of any Sale of any Property included in the Borrowing
Base constituting (and designated by the Company in a notice to the
Administrative Agent as constituting) a permitted Sale under clause
(iii) of Section 11.3 and in any event within three (3) Business Days
thereof, the Company shall make a mandatory prepayment hereunder equal
to the amount, if any, by which the aggregate outstanding principal
amount of all Loans on the date of such mandatory prepayment exceeds
the Aggregate Available Commitment (as then in effect after giving
effect to any reduction thereof resulting from such Sale).
(c) [Intentionally Omitted.]
(d) Mandatory Prepayment on Account of Extraordinary
Sales of Properties. In the event the Company or any Subsidiary
proposes to consummate a Sale of any Property, which Sale is not
otherwise permitted under clause (i) or (ii) of Section 11.3 or
otherwise permitted and designated under clause (iii) of Section 11.3,
the Company shall promptly notify the Administrative Agent, the
Engineering Banks and the Lenders of such proposed Sale, which notice
shall describe such Property and, if known, the proposed terms of
Sale. In connection therewith the Company shall deliver to the
Administrative Agent, the Engineering Banks and the Lenders such
reports and information concerning such Property (which may include in
the Engineering Banks' sole discretion an Approved Engineers' Report
or a Company's Engineers' Report as of such date) and such Sale as
each of the Engineering Banks shall deem appropriate in its sole
discretion. Promptly following receipt of such report and
information, the Engineering Banks shall make a recommendation (and
the Administrative Agent shall notify the Lenders in writing of such
recommendation) of (A) if the Non-conforming Borrowing Base is $0.00,
whether they approve of such Sale and, if so approved, the amount of
prepayment that the Company shall be required to make under
this Section 4.2(d) (which amount shall also be the amount of the
reduction in the Aggregate Available Commitment pursuant to Section
2.3(f)), and (B) if the Non-conforming Borrowing Base is not $0.00,
whether to approve such sale, which recommendations shall be made by
the Engineering Banks in the exercise of their sole
discretion; provided, however, that in the event the Company or any
Subsidiary proposes to consummate a Sale with respect to a Property
not included within the Borrowing Base when the Non-conforming
Borrowing Base is $0.00, no mandatory prepayment shall be required;
and provided further, that in
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no event shall the Aggregate Available Commitment be reduced by an
amount in excess of the proceeds of such Sale net of costs, charges,
and taxes incidental to the Sale, as provided in Section 2.3(f) for
Sales pursuant to clause (iii) of Section 11.3; and provided further,
that until the Non-conforming Borrowing Base is $0.00, the Aggregate
Available Commitment automatically shall be reduced upon consummation
of any such approved Sale by an amount equal to the proceeds of such
Sale net of costs, charges and taxes incidental to such Sale. Each
Lender shall notify the Administrative Agent in writing, by telex or
by facsimile transmission whether it approves or disapproves (which
approval or disapproval shall be made by each Lender in the exercise
of its sole discretion) of such recommendation and of such Sale within
ten (10) Business Days of its receipt of such recommendation from the
Administrative Agent; provided, that any Lender which does not so
notify the Administrative Agent shall be deemed to have approved of
such Sale, and, if applicable, such amount of prepayment and such
reduction in the Aggregate Available Commitment. Upon the approval of
the Required Lenders, the Administrative Agent shall promptly notify
the Company of such determination. The Company promptly upon the
consummation of any such permitted Sale and in any event within three
(3) Business Days thereof, shall, if required, make a mandatory
prepayment hereunder in the amount so determined in accordance with
this clause (d) or, in the amount that the outstanding principal amount
of the Loans exceeds the Aggregate Available Commitment as so
automatically reduced, as the case may be.
(e) Application of Mandatory Prepayments. Each
mandatory prepayment made under this Section 4.2 shall be applied (i)
first, ratably among the Lenders with respect to any principal and
interest due in connection with Revolving Loans, (ii) second, after
all amounts described in clause (i) have been satisfied, ratably among
those Lenders for whom any payment of principal and interest is due in
connection with any Competitive Bid Loans and (iii) third, after all
amounts described in clauses (i) and (ii) have been satisfied, ratably
to any other Obligations then due.
4.3. Voluntary Prepayments. The Company may from time to time,
at its option, prepay outstanding Advances, upon three (3) Business Days' prior
notice to the Administrative Agent in the case of a Eurodollar Advance, or upon
one (1) Business Day's prior notice to the Administrative Agent in the case of
a Floating Rate Advance; provided that each such prepayment shall be in a
minimum aggregate amount of $4,000,000 or any integral multiple of $1,000,000
in excess thereof without penalty or premium, except that if such prepayment of
a Eurodollar Loan occurs prior to a last day of any applicable Interest Period,
the Company shall also pay the amount specified in Section 6.3 at the time of
such prepayment. Such prepayments shall be applied, at the Company's option,
against outstanding Revolving Loans and Competitive Bid Loans and against
installments or amounts due on account thereof in such order of application as
the Company shall direct; provided, that if the Company fails to direct an
order of application at or prior to the time of such notice of prepayment, then
such prepayments shall be applied (i) first, ratably among the Lenders with
respect to any principal and interest due in connection with Revolving Loans,
(ii) second, after all amounts described in clause (i) have been satisfied,
ratably among those Lenders for whom any payment of principal and interest is
due in connection with any Competitive Bid Loans and (iii) third, after all
amounts described in clauses (i) and (ii) have been satisfied, ratably to any
other Obligations then due; provided, further, that if, at the time of any such
prepayment, any Default shall have occurred and shall be continuing, then the
holders of the Obligations shall share such prepayment on a pro rata basis,
based on the respective amount of Obligations owing to each such holder
(whether or not matured and currently payable and whether consisting of
principal, accrued
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interest, fees, expenses, indemnities or other types of Obligations) as of the
date of occurrence of such Default.
4.4. Method of Payment. All payments of principal, interest,
and fees hereunder shall be made by noon (local time at the place of payment)
on the date when due in immediately available funds to the Administrative Agent
at the Administrative Agent's address specified pursuant to Article XVIII, or
at any other single Lending Installation of the Administrative Agent specified
not less than five (5) days prior to the date when due in writing by the
Administrative Agent to the Company and shall be applied (i) first, ratably
among the Lenders with respect to any principal and interest due in connection
with Revolving Loans, (ii) second, after all amounts described in clause (i)
have been satisfied, ratably among those Lenders for whom any payment of
principal and interest is due in connection with any Competitive Bid Loans and
(iii) third, after all amounts described in clauses (i) and (ii) have been
satisfied, ratably to any other Obligations then due; provided, however, that,
if, at the time of any such payment, any Default shall have occurred and shall
be continuing, then the holders of the Obligations shall share such payment on
a pro rata basis, based on the respective amount of Obligations owing to each
such holder (whether or not matured and currently payable and whether
consisting of principal, accrued interest, fees, expenses, indemnities or other
types of Obligations) as of the date of occurrence of such Default. As between
the Company and any Lender, the timely receipt of any payment by the
Administrative Agent from the Company for the account of such Lender shall
constitute receipt by such Lender. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds which the
Administrative Agent received at its address specified pursuant to Article
XVIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. Each of the Company and the
Administrative Agent shall be deemed to have complied with this Section 4.4
with respect to any payment if it shall have initiated a wire transfer to the
appropriate recipient thereof and furnished such recipient with the identifying
number of such wire transfer.
4.5. Notes. Each Lender is hereby authorized to record the
principal amount of each of its Loans and each repayment thereof, on the
schedule attached to each of its Notes, provided, however, that the failure to
so record shall not affect the Company's obligations under any such Note.
4.6. Voluntary Reductions of Commitments and the Non-conforming
Borrowing Base. The Company may permanently reduce the Aggregate Commitment or
the Non-conforming Borrowing Base in whole, or in part, ratably among the
Lenders, in a minimum aggregate amount of $5,000,000 or any integral multiple
of $1,000,000 in excess thereof; provided, however, that the amount of the
Aggregate Commitment may not be reduced to an amount which would cause it to be
less than the outstanding principal amount of the Loans and further provided
that any reduction of the Aggregate Commitment shall first reduce the portion
of the Aggregate Commitment attributable to the Non-conforming Borrowing Base
until the Non-conforming Borrowing Base is reduced to $0.00. All accrued
facility fees shall be payable on the effective date of any such reduction or
termination of the Aggregate Commitment.
4.7. Voluntary and Mandatory Prepayments. Any prepayments of
principal of the Loans, whether voluntary or mandatory, shall include accrued
interest to, but not including, the date of the prepayment on the principal
amount being prepaid.
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ARTICLE V
[Intentionally Omitted.]
ARTICLE VI
CHANGE IN CIRCUMSTANCES; TAXES
6.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any reasonable interpretation thereof, or
compliance of any Lender with such,
(a) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in determining
the interest rate applicable to Eurodollar Advances), or
(b) imposes any other condition the result of which is
to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to
the amount of Loans held or interest received, by an amount reasonably
deemed material by such Lender,
then, within 15 days of demand by such Lender, the Company shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender reasonably determines is attributable to
making, funding and maintaining its Loans and its Commitment.
6.2. Availability of Rate Options. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, (i) the Administrative Agent shall suspend the
availability of the Eurodollar Rate with respect to such Lender until such time
as such situation is no longer the case, (ii) any Eurodollar Loans from such
Lender then outstanding shall bear interest at the Floating Rate for the
remainder of the Interest Period applicable to such Loan and (iii) until such
time as such situation is no longer the case, any Eurodollar Advance made
thereafter shall consist of a Floating Rate Loan made by such Lender(s) and
Eurodollar Loans made by each other Lender. If the Required Lenders reasonably
determine that deposits of a type or maturity appropriate to match fund
Eurodollar Advances are not available, the Administrative Agent shall suspend
the availability of the Eurodollar Rate with respect to any Eurodollar Advances
made after the date of any such determination until such time as such situation
is no longer the case. If the Required Lenders determine that the Eurodollar
Rate does not accurately reflect the cost of making a Eurodollar Advance at
such Eurodollar Rate, then, if for any reason whatsoever the provisions of
Section 6.1 are inapplicable, the Administrative Agent shall suspend the
availability of the Eurodollar Rate with respect to any Eurodollar Advances
made on or after the date of any such determination until such time as such
situation is no longer the case and shall require any outstanding Eurodollar
Advances to be repaid.
6.3. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, conversion or otherwise
(except pursuant to Section 6.2), or a Eurodollar Advance is not made on the
date
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specified by the Company for any reason other than default by the Lenders, the
Company will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Advance (net of any cost or expense, unless Section 6.1, 6.5 or 6.6 is
applicable thereto, which the Lender would have incurred with respect to such
Eurodollar Advance had such prepayment or failure to fund not occurred).
6.4. Lending Installations. Each Lender may book its Loans at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
or facsimile notice to the Administrative Agent and the Company, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made. To the extent reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurodollar Loans to reduce any liability of the Company to such Lender under
Sections 6.1, 6.5 and 6.6 or to avoid the unavailability of a Rate Option under
Section 6.2, so long as such designation is not disadvantageous to such Lender
in the sole opinion of such Lender.
6.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender, or such controlling Person, as the case may
be, could have achieved but for the occurrence of any such circumstance (taking
into account such Person's policies as to capital adequacy), then, in any such
case upon notice from time to time by such Lender to the Company, the Company
shall immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Company. In determining such
amount, such Lender may use any method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable.
6.6. Taxes. All payments by the Company or any Guarantor of
principal of, and interest on, the Loans and all other amounts payable
hereunder and in connection herewith shall be made free and clear of and
without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Agent's or any Lender's, as
applicable, net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to
be made by the Company or any Guarantor hereunder or under any Loan Document is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Company will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent or
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the relevant Agent or Lender evidencing such payment to such
authority; and
(c) pay to the Administrative Agent for the account of
the Agents and the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each
Agent and Lender will equal the full amount such Agent or Lender would
have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Agent or any Lender,
with respect to any payment received by it hereunder or in connection herewith,
the relevant Agent or Lender may pay such Taxes and the Company will promptly
pay such additional amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by such Person after the
payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount such Person would have received had not such Taxes been
asserted.
If the Company fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Agents and Lenders, the required receipts or other required
documentary evidence, the Company shall indemnify the Agents and the Lenders
for any incremental Taxes, interest or penalties that may become payable by any
Agent or Lender as a result of any such failure. For purposes of this Section
6.6, a distribution hereunder by the Administrative Agent or any other Agent or
any Lender to or for the account of any Agent or Lender shall be deemed a
payment by the Company.
Notwithstanding the foregoing, if any Agent or any Lender not
incorporated or organized under the laws of the United States of America, or a
state thereof, fails to timely deliver the forms required to be delivered
pursuant to Section 6.8 in a situation in which timely delivery of such forms
would eliminate some or all requirements for withholding of United States
federal income taxes by the Company or any Guarantor in connection with
payments under this Agreement or the other Loan Documents, then the Company
shall not be required to pay or reimburse to the Lender or Agent any amount in
respect of such Taxes withheld that would not have been required to be withheld
if such Lender or Agent had timely delivered such forms.
6.7. Lender Statements; Survival of Indemnity; Substitution of
Lenders; Limitation on Claims by Lenders. Each Agent and Lender shall deliver
to the Company and the Administrative Agent a written statement of such Agent
or Lender, as the case may be, as to the amount due, if any, under Sections
6.1, 6.3, 6.5 or 6.6. Such written statement shall set forth in reasonable
detail the calculations upon which such Agent or Lender, as the case may be,
determined such amount and shall be final, conclusive and binding on the
Company in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement shall be payable on demand after receipt by the Company
of the written statement. The obligations of the Company under Sections 6.1,
6.3, 6.5 and 6.6 shall survive payment of the Obligations and termination of
this Agreement. In the event that any Lender shall deliver to the Company and
the Administrative Agent a written statement as to an amount due under Section
6.1, 6.3, 6.5 or 6.6, the Company may, at its sole expense and effort, require
such Lender to transfer and assign, without recourse (in accordance with
Section 17.3) all of its interests, rights and obligations under this Agreement
to an assignee which shall assume such assigned obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) such
assignment shall not conflict with any
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law, rule or regulation or order of any court or other governmental authority,
(ii) the Company shall have received a written consent of the Administrative
Agent and the Arrangers in the case of an entity that is not a Lender, which
consent shall not be unreasonably withheld, (iii) the Company or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it hereunder and all other amounts owed to it hereunder and the fee payable
to the Administrative Agent pursuant to Section 17.3(b) and (iv) that nothing
in the foregoing is intended or shall be construed as obligating any Lender to
locate such an assignee. The Company shall not be required to pay to any
Lender any amount under Section 6.1, 6.3, 6.5, or 6.6 in respect of any time or
period more than twelve months prior to the time such Lender notifies or bills
the Company of or for such amount.
6.8. Withholding Tax Exemption. At least five (5) Business Days
prior to the first date on which interest or fees are payable hereunder (but in
no event prior to the Effective Date) for the account of any Lender or any
Agent, each Lender or Agent that is not incorporated or organized under the
laws of the United States of America, or a state thereof, agrees that it will
deliver to each of the Company and the Administrative Agent two (2) duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender or Agent, as the case may be, is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each
Lender or Agent which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Company and the Administrative Agent two (2) additional
copies of such form (or a successor form) on or before the date that such form
expires (currently, three (3) successive calendar years for Form 1001 and one
(1) calendar year for Form 4224) or becomes obsolete or after the occurrence of
any event requiring a change in the most recent forms so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Administrative Agent, in each case certifying
that such Lender or Agent, as the case may be, is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender or Agent from duly
completing and delivering any such form with respect to it and such Lender or
Agent, as the case may be, advises the Company and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
ARTICLE VII
CONDITIONS PRECEDENT
7.1. Conditions of Effectiveness. The effectiveness of this
Agreement and the obligation of each Lender to make Loans hereunder, are
subject to the conditions precedent that the Company has furnished to the
Administrative Agent all of the following, each in form and substance
satisfactory to each of the Administrative Agent and the Arrangers, and each
(except for the Notes, of which only one original of each type shall be signed
for each Lender) in sufficient number of duly executed signed counterparts (or
photocopies thereof) to provide one for the Administrative Agent, the Arrangers
and each Lender:
(i) Copies of the Articles of Incorporation
of each of the Company, MW Petroleum and Apache Energy
Resources, together with all amendments, and certificates
of good standing, all of the foregoing certified by the
appropriate governmental officer in their respective
jurisdiction of incorporation and, in the case
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of certificates of good standing, in each jurisdiction in
which its business is conducted.
(ii) Copies, certified by the Secretary or
Assistant Secretary of each of the Company, Apache Energy
Resources, and MW Petroleum, of their respective By-Laws
and of their respective Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed
necessary by counsel for the Administrative Agent)
authorizing the execution, delivery and performance of the
Loan Documents and the Purchase and Sale Agreement.
(iii) Incumbency certificates, executed by
the Secretary or Assistant Secretary of each of the
Company, Apache Energy Resources, and MW Petroleum, which
shall identify by name and title and bear the signature of
the officers of the Company, Apache Energy Resources, and
MW Petroleum, respectively, authorized to sign the Loan
Documents and (in the case of the Company) to make
borrowings hereunder, upon which certificate the Agents and
the Lenders shall be entitled to rely until informed of any
change in writing by the Company, Apache Energy Resources,
or MW Petroleum, respectively.
(iv) Written opinions of the Company's, MW
Petroleum's, and Apache Energy Resources', counsel
acceptable to each of the Arrangers, addressed to the
Agents and the Lenders in substantially the form of Exhibit
"B" hereto, with such modifications, additions,
alterations, exceptions, assumptions and provisions as
shall be acceptable to each of the Arrangers.
(v) The Notes payable to the order of each
of the Lenders.
(vi) A certificate of an Authorized Officer
of the Company, satisfactory to each of the Arrangers,
regarding insurance maintained by the Company.
(vii) The Acknowledgment to Guaranty of each
of MW Petroleum and Apache Energy Resources.
(viii) The opinion of Mayer, Brown & Platt,
special counsel to the Administrative Agent and the
Arrangers, substantially in the form of Exhibit "G" hereto.
(ix) The Effectiveness Notice.
(x) A certificate, signed by the Vice
President/Treasurer of the Company, stating that on the
Effective Date no Default or Unmatured Default has occurred
and is continuing.
(xi) Copies of the Purchase and Sale
Agreement and any amendments or modifications in effect
with respect thereto, together with a plan of transition
agreed to in writing by Texaco with respect to the
Properties to be acquired pursuant to the Purchase and Sale
Agreement, in each case certified by an Authorized Officer
of the Company, together with the opinions of counsel for
Texaco and the Company required to be delivered pursuant to
the Purchase and Sale Agreement addressed to the Agents and
the Lenders.
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(xii) A certificate of an Authorized Officer
of the Company certifying, together with other evidence
satisfactory to the Administrative Agent, that, subject to
the recordation of the assignments to be executed and
delivered under the Purchase and Sale Agreement and the
title adjustment mechanism provided therein, the Company
will have defensible title to the Properties to be acquired
from Texaco under the Purchase and Sale Agreement.
(xiii) Evidence, in form and substance
satisfactory to the Arrangers that (1) the acquisition of
the Properties pursuant to the Purchase and Sale Agreement
shall have been consummated prior to or concurrently with
the initial Advance in compliance with applicable law
including the Hart-Scott-Rodino Antitrust Improvement Act
of 1976, as amended, and pursuant to the terms and
conditions set forth in the Purchase and Sale Agreement
without giving effect to waivers or amendments (except
waivers or amendments consented to by the Arrangers) and
(2) the purchase price for the acquisition and Sale shall
not exceed $597,000,000 in cash.
(xiv) A copy of the letter from Apache to
Texaco dated February 14, 1995, concerning the Properties
described in Schedule 11.3 regarding the Hugoton/Panhandle
properties to be sold to Cross Timbers Production Company
for $20 million, which is expected to close on or before
April 1, 1995, a description of the subject properties
being attached to such letter of February 14, 1995.
(xv) Such other instruments and documents as
any of the Arrangers or its counsel may have reasonably
requested.
The effectiveness of this Agreement and the obligation of each Lender
to make Loans hereunder, are further conditioned upon satisfaction of the
following on or prior to the Effective Date:
(a) the Administrative Agent shall have received the
fees to be received as set forth in the agreement with respect to fees
described inSection 2.5(b) and Chemical Bank shall have received the
fees described in the letter dated February 3, 1995.
(b) Upon the effectiveness of this Agreement, the
Administrative Agent, on behalf of the Company, shall have paid to
each bank listed in Schedule A, on the Effective Date, with proceeds
of the initial Loans made available hereunder, an amount equal to the
unpaid principal and accrued interest on all 1994 Revolving Loans made
by each such bank to the Company which are outstanding on the
Effective Date, plus all fees, costs (including, without limitation,
costs resulting from the repayment of such 1994 Revolving Loans prior
to the last day of the applicable Interest Period thereof, as more
fully described in Section 6.3 of the April 1994 Agreement) and
expenses payable to each such bank under the April 1994 Agreement,
which amounts shall be promptly delivered by the Administrative Agent
to each such bank at the address specified pursuant to Article XVIII
of the April 1994 Agreement or at any other address specified in a
notice received by the Administrative Agent from each such bank. The
Lenders and the Agents hereby consent to such repayment.
7.2. Each Advance. The Lenders shall not be required to make
any Advance unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default.
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(b) The representations and warranties contained in
Article VIII, including in Sections 8.3 and 8.7, or contained in any
other Loan Document are true and correct as of such Borrowing Date
except for changes in the Schedules hereto reflecting transactions
permitted by this Agreement.
(c) All legal requirements arising under or in
connection with the Loan Documents or applicable laws, rules or
regulations and incident to the making of such Advance shall be
satisfactory to the Arrangers and their respective counsel.
(d) No event, occurrence, action, inaction or other
item shall have occurred which could have or could cause a Material
Adverse Effect.
Each Borrowing Notice, Competitive Bid Borrowing Notice and
Continuation/Conversion Notice with respect to each Advance shall constitute a
representation and warranty by the Company that the conditions contained in
Sections 7.2(a) and 7.2(b) have been satisfied and, that after giving effect to
such Advance and the assignment or application of the proceeds thereof, the
outstanding Loans will not exceed the Aggregate Commitment.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders and the Agents that:
8.1. Corporate Existence and Standing. The Company is a
corporation, and each Subsidiary 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.
8.2. Authorization and Validity. The Company and each
Subsidiary has the corporate or partnership power and authority and legal right
to execute and deliver the Loan Documents and to perform its respective
obligations thereunder, and the Company has the corporate power and authority
and legal right to execute and deliver the Purchase and Sale Agreement and to
perform its obligations thereunder. The execution and delivery by the Company
and each Subsidiary of the Loan Documents to which it is a party and the
execution and delivery by the Company of the Purchase and Sale Agreement and
the performance in each case of the Company's and such Subsidiary's obligations
thereunder have been duly authorized by proper corporate or partnership
proceedings, and the Loan Documents and the Purchase and Sale Agreement have
been duly executed and delivered and constitute legal, valid and binding
obligations of the Company and each Subsidiary party thereto, in each case
enforceable against the Company and such Subsidiary in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
8.3. No Conflict; Government Consent. Neither the execution and
delivery by the Company and each Subsidiary of the Loan Documents and, in the
case of the Company, the Purchase and Sale Agreement, nor the consummation of
the transactions therein contemplated, nor compliance with the provisions
thereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Company or any Subsidiary or the
Company's or any Subsidiary's articles of incorporation or by-laws or
partnership agreement or the provisions of any indenture, instrument or
agreement to which the Company or any Subsidiary is a party or is subject, or
by which it, or its property, is bound,
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or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien in, of or on all or any part of the property of the
Company or any Subsidiary. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents or the Purchase and Sale
Agreement.
8.4. Financial Statements. The consolidated financial
statements of the Company dated December 31, 1993 heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition of the Company and the
Subsidiaries at such date and the consolidated results of their operations for
the period then ended.
8.5. Material Adverse Change. Since December 31, 1993, there
has been no change in the business, assets, properties, operations, condition
(financial or otherwise) or results of operations or prospects of the Company
and its Subsidiaries, Apache Energy Resources, or MW Petroleum and its
Subsidiaries or any legal or regulatory development which could have or be a
Material Adverse Effect.
8.6. Taxes. The Company and the Subsidiaries have filed all
United States federal tax returns and all other tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of the Company and
the Subsidiaries (other than MW Petroleum and MWJR) have been audited by the
Internal Revenue Service or, if no audit was performed, the statute of
limitations permitting such an audit has run, through the fiscal year ended
December 31, 1989. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. The charges, accruals and reserves on
the books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
8.7. Litigation and Contingent Obligations. 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 any Subsidiary which is or could have a Material
Adverse Effect. The Company and its Subsidiaries have no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 8.4.
8.8. Subsidiaries. Schedule 8.8 hereto contains an accurate
list of all of the presently existing Subsidiaries of the Company 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 the Company 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.
8.9. ERISA. The Unfunded Liabilities of all Plans do not in the
aggregate exceed $10,000,000. Each Plan complies in all material respects with
all applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Company nor any other members of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to terminate any Plan.
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8.10. Accuracy of Information. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
8.11. Regulation-U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Company and the Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
8.12. Material Agreements. Neither the Company nor any
Subsidiary is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in (i) any agreement to
which it is a party, which default might have a Material Adverse Effect, (ii)
any agreement or instrument evidencing or governing Indebtedness which default
might have a Material Adverse Effect or (iii) the Purchase and Sale Agreement
which default might have a Material Adverse Effect.
8.13. Compliance With Laws. The Company and the Subsidiaries
have complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Properties.
Neither the Company nor any of the Subsidiaries has received any notice to the
effect that it, its operations or the Properties are not in material compliance
with any of the requirements of applicable federal, state or local
environmental, health and safety statutes and regulations, or are the subject
of any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance
into the environment, whether from the Properties or elsewhere, which in any
case would have a Material Adverse Effect.
8.14. Title to Properties. Each of the Company and the
Subsidiaries has defensible title to substantially all of its properties
(including Properties acquired pursuant to the Purchase and Sale Agreement) and
assets, whether legal or beneficial, free and clear of any and all Liens other
than those Liens permitted by Section 11.5; provided, that for purposes of this
Section 8.14 the failure of title to any Property acquired pursuant to the
Purchase and Sale Agreement shall not be a breach of this Section 8.14, if and
so long as, the Company is diligently pursuing its recourse against Texaco
under the Purchase and Sale Agreement. The 1995 Engineers' Report refers to
and covers all of the reserves in the Properties as of the Effective Date and
such Report covers no reserves other than in such Properties.
8.15. Investment Company Act. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.16. Public Utility Holding Company Act. Neither the Company
nor any Subsidiary is 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.
8.17. Subordinated Indebtedness. The Obligations constitute
senior indebtedness which is entitled to the benefits of the subordination
provisions of all outstanding Subordinated Indebtedness.
8.18. Post-Retirement Benefits. The present value of the
expected cost of post-retirement medical and insurance benefits payable by the
Company and its
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Subsidiaries to its employees and former employees, as estimated by the Company
in accordance with reasonable procedures and assumptions deemed reasonable by
the Required Lenders, does not exceed $2,000,000.
8.19. Solvency. As of the Effective Date, (i) the Company is
Solvent, (ii) the Consolidated Subsidiaries of the Company on a consolidated
basis are Solvent and (iii) each Guarantor and its Consolidated Subsidiaries on
a consolidated basis is Solvent.
8.20. Environmental Warranties. In the ordinary course of its
business, the Company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and Properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including any capital or operating expenditures required
for clean-up or closure of Properties presently owned or operated, 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 Company has
reasonably concluded that, except as disclosed in writing by the Company to the
Lenders and the Agents, to the best of its knowledge after due inquiry:
(a) all facilities and property (including underlying
groundwater) owned, leased or operated by the Company or any
Subsidiary have been, and continue to be, owned, leased or operated by
the Company or any Subsidiary in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending
or threatened
(i) claims, complaints, notices or
inquiries to, or requests for information received by, the
Company or any Subsidiary with respect to any alleged
violation of any Environmental Law, that, singly or in the
aggregate, have or may reasonably be expected to have a
Material Adverse Effect, or
(ii) claims, complaints, notices or
inquiries to, or requests for information received by, the
Company or any Subsidiary regarding potential liability
under any Environmental Law or under any common law
theories relating to operations or the condition of any
facilities or property (including underlying groundwater)
owned, leased or operated by the Company or any Subsidiary
that, singly or in the aggregate, have, or may reasonably
be expected to have a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or previously owned or leased by the
Company or any Subsidiary that, singly or in the aggregate, have, or
may reasonably be expected to have, a Material Adverse Effect;
(d) the Company and each Subsidiary have been issued
and are in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to environmental
matters and necessary or desirable for their businesses;
(e) no property now or previously owned, leased or
operated by the Company or any Subsidiary is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, or, to the
extent that such
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listing may, singly or in the aggregate, have, or may reasonably be
expected to have a Material Adverse Effect, on the CERCLIS or on any
other federal or state list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned, leased or operated by the Company or any
Subsidiary that, singly or in the aggregate, have, or may reasonably
be expected to have, a Material Adverse Effect;
(g) none of the Company or any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, or, to the
extent that such listing may, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect, on the
CERCLIS or on any federal or state list or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to material claims against the Company or such
Subsidiary for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls,
radioactive materials or friable asbestos present at any property now
or previously owned or leased by the Company or any Subsidiary that,
singly or in the aggregate, have, or may reasonably be expected to
have, a Material Adverse Effect; and
(i) no condition exists at, on or under any property
now or previously owned or leased by the Company or any Subsidiary
which, with the passage of time, or the giving of notice or both,
would give rise to material liability under any Environmental Law
that, singly or in the aggregate have, or may reasonably be expected
to have a Material Adverse Effect.
ARTICLE IX
AFFIRMATIVE COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
9.1. Financial Reporting. The Company will maintain a system of
accounting established and administered in accordance with generally accepted
accounting principles, and furnish to the Lenders:
(a) As soon as available and in any event within 90
days after the close of each of its fiscal years, an unqualified audit
report certified by independent certified public accountants,
acceptable to the Required Lenders, prepared in accordance with
generally accepted accounting principles on a consolidated basis for
itself and its Consolidated Subsidiaries, including balance sheets as
of the end of such period, related profit and loss and reconciliation
of surplus statements, and a statement of cash flows, accompanied by a
certificate of said accountants to the effect that, in the course of
their examination necessary for their certification of the foregoing,
they have obtained no knowledge of any Default or Unmatured Default,
or if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
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(b) As soon as available and in any event within 45
days after the close of the first three quarterly periods of each of
its fiscal years, for itself and the Consolidated Subsidiaries,
consolidated unaudited balance sheets as at 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.
(c) Together with the financial statements required
under clauses (a) and (b), a compliance certificate in substantially
the form of Exhibit "C" hereto signed by its vice president/treasurer
and addressing the matters set forth therein.
(d) Promptly after December 31 of each calendar year,
commencing December 31, 1994, and in any event not later than March 15
of the next succeeding calendar year, an Approved Engineers' Report
prepared as of December 31 of such calendar year, in form and
substance satisfactory to the Engineering Banks.
(e) Within 45 days in the case of a Company's
Engineers' Report and 60 days in the case of an Approved Engineers'
Report, of any request by the Required Lenders in connection with any
(other than the scheduled semi-annual redeterminations of the
Borrowing Base) determination of the Borrowing Base pursuant to
Section 2.3(a), an Approved Engineers' Report or a Company's
Engineers' Report, as the case may be, prepared as of the date of such
request, in form and substance satisfactory to the Required Lenders.
(f) Promptly after June 30 of each calendar year and
in any event not later than September 15 of such calendar year, a
Company's Engineers' Report prepared as of June 30 of such calendar
year, in form and substance satisfactory to the Engineering Banks.
(g) Promptly upon the furnishing thereof to the
shareholders of the Company copies of all financial statements,
reports and proxy statements so furnished.
(h) Promptly upon the filing thereof, copies of all
publicly available registration statements and annual, quarterly,
monthly or other regular reports which the Company or any Subsidiary
(other than a Drilling Partnership) or any other Affiliate files with
the Securities and Exchange Commission.
(i) Promptly after December 31 of each calendar year,
commencing December 31, 1995, and in any event no later than March 21
of the next succeeding calendar year, a budget (including specific
capital expenditures information) through the Termination Date for the
Company and its Subsidiaries certified by the Vice President/Treasurer
of the Company and in a format consistent with the Projections and
otherwise in form and substance satisfactory to the Administrative
Agent and the Arrangers.
(j) At the request of the Administrative Agent, either
Arranger, or the Required Lenders promptly after June 30 of each
calendar year, commencing June 30, 1995, and in any event prior to
October 1 of such calendar year, an update of the budget described in
clause (i) of this Section 9.1 in form and substance satisfactory to
the Administrative Agent and signed by the Vice President/Treasurer of
the Company.
(k) Promptly and in any event within 40 days after the
close of each calendar quarter during each year, a certificate of an
Authorized Officer certifying to the Administrative Agent and the
Lenders the
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Debt/Capitalization Ratio and the calculation thereof as of the last
day of the immediately preceding calendar quarter.
(l) Such other information (including engineering,
financial and non-financial information) as the Administrative Agent,
either Arranger or any Lender may from time to time reasonably
request.
9.2. Use of Proceeds. The Company will, and will cause each
Subsidiary to, use the proceeds of the Loans (i) to refinance existing
Indebtedness of the Company and the Subsidiaries, (ii) for the Company's and
the Subsidiaries' general corporate purposes or (iii) to pay the purchase
price, fees and expenses of or relating to the Texaco Acquisition.
9.3. Notice of Default, Unmatured Default, Litigation and
Material Adverse Effect. The Company will give prompt notice in writing to the
Lenders, to Apache Energy Resources, and to MW Petroleum of (i) the occurrence
of any Default or Unmatured Default and the steps, if any, being taken to cure
it, (ii) the occurrence of any adverse development with respect to any labor
controversy, litigation, action or proceeding described in Section 8.7, or the
commencement of any labor, controversy, litigation, action or proceeding of the
type described in Section 8.7 together with copies of all material pleadings
relating thereto, and (iii) the occurrence of any other development, financial
or otherwise, which might have or be a Material Adverse Effect or might
materially adversely affect the ability of the Company to repay the
Obligations.
9.4. Conduct of Business. The Company will, and will cause its
Subsidiaries to, carry on and conduct its respective business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and, except to the extent permitted by Section 11.2, will,
and will cause each Subsidiary to, do all things necessary to remain duly
incorporated or organized, validly existing and in good standing as a domestic
corporation or partnership, as the case may be, in its jurisdiction of
incorporation or organization and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
9.5. Taxes. The Company will, and will cause each Subsidiary
to, pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or property, and all lawful claims which, if
unpaid, might become a Lien upon any properties of the Company or any
Subsidiary, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves in accordance with
generally accepted accounting principles have been set aside on its books.
9.6. Insurance. The Company and its Subsidiaries will maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and business against such liabilities, casualties, risks
and contingencies and in such types and amounts as customary in the case of
corporations engaged in the same or similar businesses and similarly situated.
Upon the request of the Administrative Agent, the Company will furnish or cause
to be furnished to the Administrative Agent from time to time a summary of the
insurance coverage of the Company and its Subsidiaries in form and substance
satisfactory to the Required Lenders in their reasonable judgment, and, if
requested, will furnish the Administrative Agent copies of the applicable
policies. In the case of any fire, accident or other casualty causing loss or
damage to any property of the Company or any of its Subsidiaries, the proceeds
of such policies will be used (i) to repair or replace the damaged property or
(ii) to prepay the Obligations, at the election of the Company.
9.7. Compliance with Laws. The Company will, and will cause
each Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
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9.8. Maintenance of Properties. The Company will and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
9.9. Inspection. The Company will, and will cause each
Subsidiary to, permit the Lenders, by their respective representatives and
agents, to inspect any of the properties, corporate books and financial records
of the Company and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Company and each Subsidiary, and to
discuss the affairs, finances and accounts of the Company and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate. Any information
received by the Lenders as a result of the foregoing shall be included in
information subject to the confidentiality provisions set forth in Exhibit "J"
hereto.
9.10. Operation of Properties. The Company will, and will cause
each Subsidiary owning Properties included in the Borrowing Base to, preserve,
operate and maintain, or cause to be preserved, operated and maintained, the
Properties in a good and workmanlike manner continuously to their economic
limit as a prudent operator in accordance with good oil and gas industry
standards.
9.11. Delivery of Guaranties. The Company shall at its own
expense from time to time cause each of its Subsidiaries which owns, legally or
beneficially, Properties included in the Borrowing Base from time to time to
deliver to the Administrative Agent a duly executed Guaranty, substantially in
the form of Exhibit "L", together with such related documents and opinions as
the Administrative Agent may request.
9.12. Environmental Covenant. The Company will, and will cause
each of its Subsidiaries to,
(a) use, operate and maintain all of its facilities
and properties in material compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable Environmental
Laws;
(b) (i) promptly notify the Administrative Agent and
provide copies upon receipt of all material written claims,
complaints, notices, liens or inquiries relating to the condition of
its facilities and properties or compliance with Environmental Laws,
(ii) within ninety (90) days have dismissed with prejudice any actions
or proceedings relating to compliance with Environmental Laws which
would or could in the reasonable opinion of either of the Arrangers
have a Material Adverse Effect; and (iii) diligently pursue cure of
any material underlying environmental problem which forms the basis of
any such claim, complaint, notice, lien, inquiry, proceeding or
action; and
(c) provide such information and certifications which
either of the Arrangers may reasonably request from time to time to
evidence compliance with this 9.12.
9.13. [Intentionally Omitted.]
9.14. [Intentionally Omitted.]
9.15. Further Assurances.
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(a) Further Assurances. The Company will cure and
will cause its respective Subsidiaries to cure promptly any defects in
the creation and issuance of any Obligations and the execution and
delivery of any Guaranty. The Company and each Subsidiary will at its
expense promptly execute and deliver to the Administrative Agent upon
request all such other and further reasonable documents, agreements
and instruments in compliance with, or accomplishment of, the
covenants and agreements of the Company and such Subsidiary in any
Loan Document.
ARTICLE X
FINANCIAL COVENANTS
10.1. Consolidated Tangible Net Worth. The Company will maintain
Consolidated Tangible Net Worth of not less than the sum of (i) $650,000,000,
plus (ii) the product of 0.50 times the sum of Consolidated Net Income for each
calendar quarter beginning with the calendar quarter ending June 30, 1995
during which Consolidated Net Income is greater than $0, plus (iii) the product
of 0.50 times the proceeds of the sale by the Company and its Subsidiaries of
securities (other than securities constituting Indebtedness) net of reasonable
incidental, brokerage and legal costs actually paid to third parties (which
proceeds, in the event of a pooling of interest transaction, shall be deemed to
be one-half of the net addition to the Company's consolidated balance sheet)
plus (iv) in the case of the DEKALB Merger, an amount equal to the product of
0.80 times the net addition to the Company's consolidated balance sheet as a
result of such pooling of interest.
10.2. Ratio of EBITDDA to Consolidated Interest. The Company
shall not permit the ratio of (i) EBITDDA to (ii) Consolidated Interest Expense
for any four consecutive calendar quarters ending on the last day of any
calendar quarter to be less than 3.70 to 1.0.
ARTICLE XI
NEGATIVE COVENANTS
11.1. Indebtedness. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) The Obligations arising under the Loan Documents,
Contingent Obligations permitted under Section 11.4 and Indebtedness
of International or Apache Energy Resources pursuant to Investments by
the Company permitted by Section 11.12(e);
(b) Indebtedness existing on the date hereof and
described in Schedule 11.1 hereto and the DEKALB Indebtedness
described in Schedule 11.1;
(c) Other Indebtedness of the Company or any
Subsidiary consented to by the Required Lenders in the exercise of
their sole discretion having no conditions precedent or covenants or
defaults more onerous to the Company or such Subsidiary than the
conditions precedent and covenants and defaults contained herein and
which is expressly made subordinate and junior in right of payment to
the Obligations and which contains terms (including interest rates,
amortization and maturity) and provisions satisfactory to the Required
Lenders in the exercise of their sole discretion;
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(d) Other Indebtedness of the Company or any
Subsidiary consented to by the Required Lenders in the exercise of
their sole discretion and constituting Limited Recourse Indebtedness,
provided that such Limited Recourse Indebtedness contains terms
(including interest rates, amortization and maturity) and provisions
satisfactory to the Required Lenders in the exercise of their sole
discretion;
(e) Other Indebtedness of the Company or any
Subsidiary, consented to by the Required Lenders in the exercise of
their sole discretion having no conditions precedent or covenants or
defaults more onerous to the Company or such Subsidiary than the
conditions precedent and covenants and defaults contained herein and
which contains terms (including interest rates, amortization, maturity
and the application of the proceeds thereof) and provisions
satisfactory to the Required Lenders in the exercise of their sole
discretion;
(f) Indebtedness of the type referred to in clause
(vi) of the definition of Indebtedness;
(g) Indebtedness of the type referred to in clause
(vii) of the definition of Indebtedness, provided such Indebtedness is
otherwise permitted pursuant to Section 11.13;
(h) Additional Indebtedness of the Company not
included in the foregoing clauses (a) through (g) in an aggregate
principal amount not exceeding $40,000,000, exclusive of any
Contingent Obligations permitted under Section 11.4;
provided, that if the Company shall request that any Indebtedness be permitted
as Subordinated Indebtedness pursuant to clause (c), as Limited Recourse
Indebtedness pursuant to clause (d), or as Indebtedness pursuant to clause (e),
the Administrative Agent or any Arranger shall notify the Company that it or
they, as the case may be, deem such request by the Company to be a request for
a redetermination of the Borrowing Base pursuant to Section 2.3(b), in which
event the Company shall supply such information and reports provided pursuant
to such Section 2.3(b) and the Engineering Banks and the Required Lenders shall
make a determination of the Borrowing Base in accordance with the provisions of
Section 2.3(a), giving effect to such requested Indebtedness. For purposes
hereof, "Limited Recourse Indebtedness" shall mean Indebtedness of a Person for
which there is no recourse whatsoever to such Person for the repayment thereof
other than recourse limited to the cash flow from the assets constituting
collateral therefor and recourse to the extent necessary to enable amounts to
be claimed in respect of such Indebtedness upon an enforcement of any Lien on
any such assets; provided that (a) the extent of such recourse is limited
solely to the amount of any recoveries made on any such enforcement, (b) such
Person is not entitled, by virtue of any right or claim arising out of or in
connection with such Indebtedness to commence proceedings for the winding up or
dissolution of, or to appoint or procure the appointment of any receiver,
trustee or similar person or official in respect of, such Person or any of its
assets (other than the assets the subject of such Lien) and (c) except as
provided in the foregoing (a) and (b), neither the Company nor any Subsidiary
shall have any contingent liability in respect thereof other than Contingent
Obligations permitted pursuant to Section 11.4.
11.2. Merger. The Company will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person or Persons
except that notwithstanding the foregoing, a Subsidiary may merge into the
Company and a Subsidiary (other than a Guarantor) may merge into a Wholly-Owned
Subsidiary; provided, however that the foregoing shall not prohibit mergers or
consolidations in any calendar year not in excess of five percent (5%) of the
consolidated total assets of the Company and its Consolidated Subsidiaries
immediately prior to the
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initial such merger or consolidation during such calendar year if (i) the
Company or such Subsidiary, as the case may be, is the surviving entity of such
merger (and if a merger between the Company and any Subsidiary, the Company is
the surviving entity) and (ii) after giving effect to such merger or
consolidation, no Default or Unmatured Default shall occur and be continuing;
provided, further that the foregoing shall not prohibit the DEKALB Merger.
11.3. Sale of Assets. The Company will not, nor will it permit
any Subsidiary to, lease, sell, transfer, convey, assign, issue or otherwise
dispose of any of its property, assets (including stocks or partnership
interests in or of any Subsidiary) or business to any other Person, whether in
one transaction or in a series of transactions, except:
(i) Sales of Hydrocarbon inventory and
severed oil and gas in the ordinary course of business.
(ii) Sales of Properties (other than
Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) or other assets with a fair
market value not in excess of $10,000,000 for all such
Sales permitted pursuant to this clause (ii) during any
consecutive six-month period.
(iii) Sales of Properties (other than sales
of Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) having a fair market value not
in excess of $50,000,000 in the aggregate for all such
Sales during any period occurring between successive dates
of determination of the Borrowing Base pursuant to Section
2.3; provided, however, that concurrently with any such
Sale the Aggregate Available Commitment shall be reduced
pursuant to Section 2.3(f), and the Company shall make any
mandatory prepayment required pursuant to Section 4.2(b).
(iv) Sales of Properties (other than sales
of Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) not described in the foregoing
clause (ii) or (iii) if the Required Lenders give prior
written consent to such Sale in the exercise of their sole
discretion; provided, that the consent of the Required
Lenders shall not be required for the Sale of the
Properties described in Schedule 11.3 hereof for at least
the amount described in a letter agreement dated on or
prior to the Effective Date delivered pursuant to Section
7.1 (xiv); provided, further, however, that concurrently
with any such Sale (A) if the Non-conforming Borrowing Base
is $0.00, the Aggregate Available Commitment shall be
reduced pursuant to Section 2.3(f), (B) if the
Non-conforming Borrowing Base is not $0.00, the Aggregate
Available Commitment shall be reduced as provided in
Section 4.2(d), and (C) the Company shall make a mandatory
prepayment pursuant to Section 4.2(d).
(v) Sales of assets (other than sales of
Hydrocarbon inventory and severed oil and gas in the
ordinary course of business and other than assets
constituting Properties) if the Required Lenders give prior
written consent to such Sale in the exercise of their sole
discretion.
(vi) The issuance by the Company of common
stock.
(vii) A transfer, conveyance or assignment to
the Company of Properties as a result of the winding up and
liquidation of a Drilling Partnership.
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(viii) A transfer, conveyance or assignment to
the Company or a Subsidiary of Properties as a result of a
merger permitted pursuant to Section 11.2.
Anything herein contained to the contrary notwithstanding, the Company will
not, nor will it permit any Subsidiary to, consummate any Sale otherwise
permitted hereunder if it receives therefor consideration other than cash or
other consideration readily convertible to cash or which is less than the fair
market value of the relevant property or asset.
11.4. Contingent Obligations. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary) in an aggregate amount for all such Persons and
Contingent Obligations as of any date of determination in excess of $30,000,000
except (a) by endorsement of instruments for deposit or collection in the
ordinary course of business, (b) any Contingent Obligation pursuant to any of
the Loan Documents, (c) Contingent Obligations in respect of Apache Offshore
Investment Partnership or Offshore outstanding as of the Effective Date or in
replacement of such outstanding Contingent Obligations pursuant to the facility
described in item 1 of Schedule 11.1, and not exceeding in the aggregate the
lesser of (i) $40,000,000 or (ii) the greater of (A) $23,000,000 or (B) the
present value (discounted at 10%) of Apache Offshore Investment Partnership's
proved reserves as shown in the most recent Form 10-K filed with the Securities
and Exchange Commission, (d) net Contingent Obligations of International
consisting of foreign work commitments or other similar obligations under
exploration or production licenses or agreements entered into by International
in the ordinary course of business not to exceed net at any one time
outstanding for all such Contingent Obligations of $60,000,000; provided that
for purposes of this clause (d), net Contingent Obligations shall be deemed to
be the difference between the aggregate for all such Contingent Obligations in
respect of foreign work commitments or other similar obligations less the
aggregate of such Contingent Obligations in respect of which another industry
partner (which the Company reasonably believes is capable of performing such
commitments or obligations) has become obligated to perform, (e) Contingent
Obligations in the form of Indebtedness of the type referred to in clause vii
of the definition of Indebtedness; provided such Contingent Obligations are
otherwise permitted pursuant to Section 11.13; (f) Contingent Obligations in
support of Indebtedness of the type referred to in clause vii of the definition
of Indebtedness, in an aggregate amount as of any date of determination not in
excess of $30,000,000; (g) any Contingent Obligations pursuant to Indebtedness
of the type referred to in clause (vi) of the definition of Indebtedness; and
(h) Contingent Obligations in respect of obligations of partnerships of which
the Company or its Subsidiaries are partners pursuant to any 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, 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.
11.5. Liens. The Company will not, nor will it permit any
Subsidiary or Affiliate to, create, incur, or suffer to exist any Lien in, of
or on (i) any of the Company's, the Subsidiaries' and the Affiliates'
consolidated assets, revenues and properties securing an amount greater than
$5,000,000 in the aggregate for all such Liens or (ii) any of the Properties,
except in either case:
(a) Liens for taxes, assessments or governmental
charges or levies on its property if the same shall not at the time be
delinquent or
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thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves
in accordance with generally accepted accounting principles shall have
been set aside on its books.
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure obligations not more than
60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with generally accepted accounting principles shall have been set
aside on its books.
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(d) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Company,
the Subsidiaries or the Affiliates, as the case may be.
(e) Liens existing on the date hereof described in
Schedule 11.1 and securing the Indebtedness described in Schedule 11.1
hereto or otherwise permitted in connection with Indebtedness of the
type described in Section 11.1(d) consented to by the Required Lenders
in the exercise of their sole discretion.
(f) Liens arising under operating agreements in
respect of obligations which are not yet due or which are being
contested in good faith by appropriate proceedings.
(g) Liens reserved in oil, gas and/or mineral leases
for bonus or rental payments and for compliance with the terms of such
leases.
(h) 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, 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.
(i) Liens on Properties owned by Offshore arising out
of the facility described in item 1 of Schedule 11.1.
11.6. [Intentionally Omitted.]
11.7. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) [Intentionally Omitted.]
(b) [Intentionally Omitted.]
(c) the Company will not and will not permit any of
its Subsidiaries to make any optional payment or prepayment on, or
redemption of, or redeem, purchase or defease prior to its stated
maturity, any
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Indebtedness other than Indebtedness incurred under this Agreement,
the other Loan Documents, Indebtedness of Offshore or Indebtedness
evidenced by the DEKALB Notes; provided with respect to Indebtedness
of Offshore, that the optional payment or prepayment be made with
proceeds of the facility described in item A.1 of Schedule 11.1;
provided with respect to Indebtedness of DEKALB evidenced by the
DEKALB Notes, that the optional payment or prepayment be made with
proceeds of the facility described in item B.1 or B.2 of Schedule 11.1,
with cash on hand at DEKALB or with proceeds of Investments permitted
pursuant to Section 11.12(i); and provided that DEKALB may borrow,
repay and reborrow pursuant to the facilities described as item B.1,
B.2 and B.3 of Schedule 11.1;
(d) the Company will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing purposes;
provided, that notwithstanding the foregoing clause (c), the Company shall be
permitted to make an optional payment or prepayment on, or redeem, purchase or
defease Subordinated Indebtedness or any other Indebtedness of itself or its
Subsidiaries so long as the Debt/Capitalization Ratio following such payment,
repayment, redemption, purchase or defeasance is less than .45 to 1.0.
11.8. Rental Obligations. The Company will not, and will not
permit any of its Subsidiaries to, enter into at any time any arrangement
(other than oil, gas and mineral leases and leases of rights-of-way and
easements and other than short-term operating equipment rental arrangements)
which does not create a Capitalized Lease Obligation and which involves the
leasing by the Company or any of its Subsidiaries from any lessor of any real
or personal property (or any interest therein), except arrangements which,
together with all other such arrangements which shall then be in effect, will
not require the payment of an aggregate amount of rentals by the Company and
its Subsidiaries in excess of (excluding escalations resulting from a rise in
the consumer price or similar index) $10,000,000 for any calendar year;
provided, however, that any calculation made for purposes of this Section shall
exclude any amounts required to be expended for normal maintenance and repairs,
insurance, taxes, assessments, and other similar charges.
11.9. Transactions with Affiliates. The Company 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 is fair and equitable to the Company or such
Subsidiary, as the case may be, and is not of a sort which would not be entered
into by a prudent Person in the position of the Company or such Subsidiary
with, or which is on terms which are less favorable than are obtainable from,
any Person which is not one of its Affiliates.
11.10. Negative Pledges, etc. The Company will not, and will not
permit any of its Subsidiaries to, enter into, on or at any time after the
Effective Date, any agreement (excluding this Agreement and any other Loan
Document) directly or indirectly prohibiting the creation, assumption or
perfection of any Lien upon its properties, revenues or assets, whether now
owned or hereafter acquired, restricting any loans, advances or other
Investments to or in the Company or any of its Subsidiaries, restricting the
capitalization of the Company or any Subsidiary, restricting the ability of any
Subsidiary to make dividend payments or other distributions or payments (by way
of dividends, advances, repayments of loans or advances, reimbursements or
otherwise) or restricting the ability of the Company or any Subsidiary to amend
or otherwise modify this Agreement or any other Loan Document.
11.11. Regulation U Acquisitions. The Company will not, nor will
it permit any Subsidiary to, use any of the proceeds of the Loans to purchase
or carry any "margin stock" (as defined in Regulation U) or to make any
Acquisition except (i) Acquisitions not involving "margin stock", where such
Acquisition
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shall have been approved or consented to by the board of directors or similar
governing entity of the Person being acquired; (ii) Acquisitions involving
"margin stock" where such Acquisitions shall have been approved or consented to
by the board of directors or similar governing entity of the Person being
acquired and (iii) Acquisitions of not more than 15% of the outstanding equity
securities of any issuer, whether or not such securities are "margin stock";
provided, however, that the amount paid by the Company to consummate all
Acquisitions of the type described in clauses (ii) and (iii) shall not exceed
$15,000,000 in the aggregate.
11.12. Investments. The Company will not, and will not permit any
of its Subsidiaries to make, incur, assume or suffer to exist any Investment in
any other Person, except:
(a) Investments existing on the Effective Date and
identified in Schedule 11.12;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 11.1 and Investments permitted as
Contingent Obligations pursuant to Section 11.4;
(d) in the ordinary course of business, Investments
(other than the contribution of Hydrocarbon Interests) by the Company
in any Guarantor;
(e) in the ordinary course of business, (i)
Investments by the Company in International or Apache Energy Limited
(or by Apache Energy Resources in Apache Energy Limited) not to exceed
$45,000,000 (provided that until such time as the Non-conforming
Borrowing Base is $0.00, such amount shall be $30,000,000) in the
aggregate for all such Investments made, incurred or assumed in any
calendar year; provided, that Investments made by Apache Energy
Resources in Apache Energy Limited using the proceeds of Investments
by the Company in Apache Energy Resources shall not be included in
such aggregate amount and (ii) Investments by the Company in
International or Apache Energy Limited (or by Apache Energy Resources
in Apache Energy Limited) for the purpose of capital expenditures in
respect of Properties owned by International or Apache Energy Limited,
as the case may be, and included in the Borrowing Base, and consisting
of Hydrocarbon Interests located in countries (other than the United
States of America) approved by the Required Lenders pursuant to the
definition of Hydrocarbon Interests and not to exceed in the aggregate
capital expenditures in respect thereof set forth in the then most
recent Approved Engineers' Report or Company's Engineers' Report to be
delivered pursuant to Section 9.1;
(f) Investments by Subsidiaries of International in
Subsidiaries of International;
(g) Other Investments in an aggregate amount not to
exceed $15,000,000 during any calendar year;
(h) Investments in Persons which (A) Persons arise as
a result of joint operations of oil and gas properties located in the
United States of America, in which such joint operators each directly
own undivided interests, pursuant to joint operating agreements
containing terms and provisions customary in the oil and gas industry
and entered into in the ordinary course of business (and not arising
as a result of a joint venture agreement or partnership agreement,
whether written, oral, express
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or implied) and (B) Investments are in respect of the joint operations
of such Properties pursuant to such joint operating agreements;
(i) Investments in DEKALB and its Subsidiaries not to
exceed $10,000,000 in the aggregate at any time outstanding;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
(k) no Investment otherwise permitted by clause (d),
(e) (f) or (g) shall be permitted to be made if, immediately before or
after giving effect thereto, any Default shall have occurred and be
continuing.
11.13. Hedging Contracts. The Company will not and will not
permit any of its Subsidiaries to enter into or become obligated under any
contract for sale for future delivery of oil or gas, whether or not the subject
oil or gas is to be delivered, hedging contract, forward contract, commodity
swap agreement, futures contract or other similar agreement except for such
contracts which in the aggregate do not cover at any time a volume of oil or
gas, as the case may be, equal to more than 75% of the projected production of
oil or gas, as the case may be, from the Properties included in the Borrowing
Base for the term covered by such contracts.
11.14. Approval of Consents. In any instance in this Article XI
where it is provided that an action may be taken by the Company or a Subsidiary
only with the approval or consent of the Required Lenders, the failure by a
Lender to respond to a request for such approval or consent within 10 Business
Days of receipt of a request for such approval or consent (or such other length
of time as specified by the Administrative Agent in such request) shall be
deemed an approval of, or consent to, such request.
ARTICLE XII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a "Default":
12.1. Breach of Warranties and Misleading Statements. Any
representation or warranty made or deemed made pursuant to Article VIII, by or
on behalf of the Company or any Subsidiary to the Lenders, the Administrative
Agent, the Co-Agent, the Arrangers or the Engineering Banks under or in
connection with this Agreement, any Loan, any Loan Document, or any
certificate, or, information delivered in connection with this Agreement, any
other Loan Document is breached or shall be false, incomplete or incorrect on
the date as of which made or deemed made in any material respect.
12.2. Nonpayment of Notes, Fees and other Obligations.
Nonpayment of principal of any Note when due; or nonpayment of interest upon
any Note or of any facility fee or other Obligation under any of the Loan
Documents within three (3) days after the same becomes due.
12.3. Breach of Certain Covenants. The breach by the Company of
any of the terms or provisions of Section 9.2, 9.3, 9.15 or Article X or
Article XI.
12.4. [Intentionally Omitted.]
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12.5. Non-Compliance with this Agreement. The breach by the
Company (other than a breach which constitutes a Default under any other
Section of this Article XII) of any of the terms, provisions or covenants of
this Agreement which is not remedied within 30 days after written notice from
the Administrative Agent or any Lender.
12.6. Cross-Defaults.
(a) Failure of the Company or any Subsidiary to pay
any Indebtedness (other than Limited Recourse Indebtedness of such
Person) in excess of $25,000,000 in aggregate principal amount when
due; or the default by the Company or any Subsidiary in the
performance of any term, provision or condition contained in any
agreement under which any such Indebtedness was created or is
governed, the effect of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of the Company
or any Subsidiary shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or the Company or any Subsidiary shall
not pay, or shall admit in writing its inability to pay, its debts
generally as they become due.
(b) Failure of an Affiliate (other than any
Subsidiary) to pay any Indebtedness (other than Limited Recourse
Indebtedness) in excess of $25,000,000 in aggregate principal amount
when due or any such Indebtedness of an Affiliate shall be declared to
be due and payable or required to be prepaid (other than a regularly
scheduled payment) prior to the stated maturity thereof; or an
Affiliate shall not pay, or shall admit in writing its inability to
pay, its debts as they become due, if any of the foregoing would have
a Material Adverse Effect.
12.7. Voluntary Dissolution and Insolvency Proceedings and
Actions. The Company, any Subsidiary or any Affiliate shall (a) have an order
for relief entered with respect to it under Federal bankruptcy laws as now or
hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial part of its property, (d) institute any proceeding seeking an order
for relief under Federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 12.7 or (f) fail to contest in good
faith any appointment or proceeding described in Section 12.8; provided,
however, that if any of the foregoing shall occur with respect to any
Affiliate, it shall not constitute a Default hereunder unless it shall have a
Material Adverse Effect.
12.8. Involuntary Insolvency Proceedings or Dissolution. Without
the application, approval or consent of the Company, any Subsidiary or any
Affiliate, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for such Person or any substantial part of its property, or a
proceeding described in Section 12.7(d) shall be instituted against the
Company, any Subsidiary or any Affiliate and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days; provided, however, that if any of the foregoing shall
occur with respect to any Affiliate, it shall not constitute a Default
hereunder unless it shall have a Material Adverse Effect.
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12.9. Condemnation. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of
all or any portion of the assets of the Company or any Subsidiary with a fair
market value in excess of $50,000,000 in the aggregate for all such assets;
provided, that for purposes of the foregoing, the fair market value of the
assets of a Subsidiary constituting a Drilling Partnership condemned, seized or
otherwise appropriated or taken into custody or control shall be deemed to be
the product of such fair market value times the Company's direct ownership
percentage of such Drilling Partnership; and, provided, further, that this
Section 12.9 shall not apply to any assets which are not included in the
Borrowing Base and which are either: (i) owned by International or (ii) owned
by the Company or a Subsidiary other than International and located outside of
the United States of America.
12.10. Judgments. The Company or any Subsidiary shall fail within
45 days to pay, bond or otherwise discharge any uninsured portion of any
judgment or order for the payment of money in excess of $10,000,000 in the
aggregate for all such judgments and orders, which is not stayed on appeal or
is not otherwise being appropriately contested in good faith.
12.11. Plans. The Unfunded Liabilities of all Plans shall exceed
in the aggregate $10,000,000.
12.12. Material Adverse Effect. The Company, any Subsidiary, or
any of the Properties shall be the subject of any proceeding or investigation
pertaining to the release by any of them or from such Property of any toxic or
hazardous waste or substance into the environment, or any violation of any
federal, state or local environmental, health or safety law or regulation,
which would, in any case, have or be a Material Adverse Effect; or the
occurrence of any material adverse change in the business, assets, properties,
operations, conditions or prospects (financial or otherwise) of the Company and
any of its Subsidiaries taken as a whole or in the ability of the Company or
its Subsidiaries to perform their respective obligations under the Loan
Documents.
12.13. Other Defaults Under Loan Documents. The occurrence of any
default under any Loan Document (other than this Agreement or the Notes) or the
breach of any of the terms or provisions of any Loan Document (other than this
Agreement or the Notes) which default or breach continues beyond any period of
grace therein provided.
12.14. Failure of Loan Documents. Any Loan Document shall fail to
remain in full force or effect or shall be declared null and void, or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Loan Document.
12.15. Change in Control. Any Change in Control shall occur.
ARTICLE XIII
ACCELERATION, WAIVERS, AMENDMENTS, REMEDIES; RELEASES
13.1. Acceleration. If any Default described in Section 12.7 or
12.8 occurs with respect to the Company, (a) the obligations of the Lenders to
make Loans hereunder shall automatically terminate, (b) the Obligations shall
immediately become due and payable without any election or action on the part
of any Agent or any Lender and without presentment, demand, protest or notice
of any kind, including without notice of acceleration or notice of intent to
accelerate, all of which the Company and each Guarantor each hereby expressly
waives, and (c) the Agents and the Lenders and each of them shall be able to
exercise any rights available to it or them under the Loan Documents, the
Guaranties or by law. If any other Default occurs, (a) the Required Lenders
may terminate or
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suspend the obligations of the Lenders to make Loans hereunder, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, including without notice of acceleration or notice of
intent to accelerate, all of which the Company and each Guarantor each hereby
expressly waives, and (b) the Agents and the Lenders and each of them shall be
able to exercise any rights available to it or them under the Loan Documents,
the Guaranty or by law. The Administrative Agent hereby agrees, at the written
direction of the Required Lenders, subject to the provisions of Article XV, to
exercise any of the foregoing rights available to it.
13.2. Amendments. Subject to the provisions of this Article
XIII, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Company may enter into agreements
supplemental hereto for the purpose of adding or elucidating any provisions to
the Loan Documents or changing in any manner the rights and remedies of the
Lenders or the Company hereunder or waiving any Default hereunder; provided
however that Sections 2.3 and the related definitions in Section 1.1 shall not
be changed without the prior written consent of the Required Lenders; provided,
further however, that no such supplemental agreement shall, without the consent
of each Lender affected thereby:
(a) Extend the maturity of any Loan, Note or payment
under a Guaranty, or reduce the principal amount of any of them, or
reduce the rate or extend the time of payment of interest or fees
thereon.
(b) Reduce the percentage specified in the definition
of Required Lenders.
(c) Extend the Termination Date or reduce the amount
or extend the payment date for, the mandatory payments required under
Section 4.2 or increase the amount of the Commitment of any Lender
hereunder or permit the Company to assign its rights or obligations
under this Agreement or under any other Loan Document.
(d) Amend this Section 13.2.
No amendment of any provision of this Agreement relating to any Agent shall be
effective without the written consent of such Agent. The Administrative Agent
may waive payment of the fee required under Section 17.3(b) without obtaining
the consent of any of the Lenders.
13.3. Preservation of Rights. All remedies contained in the Loan
Documents or afforded by law shall be cumulative and all shall be available to
the Agents and the Lenders until the Obligations have been paid in full. No
delay or omission of the Lenders, the Agents or any of them to exercise any
right under the Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Company to
satisfy the conditions precedent to such Loan shall not constitute any waiver
or acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders and the Agents required pursuant to Section 13.2, and
then only to the extent specifically set forth in such writing.
Notwithstanding the foregoing or any other provision of this Agreement, each of
the various written consents provided by the Administrative Agent on behalf of
the Lenders, or any group of Lenders, with respect to the April 1994 Agreement
shall remain in full force and effect according to its terms, including,
without limitation, each consent contained in that certain letter from the
Administrative Agent to the
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Company dated January 20, 1994, concerning the purchase by the Company of up to
five million shares of its common stock.
ARTICLE XIV
GENERAL PROVISIONS
14.1. Survival of Representations. All representations and
warranties of the Company, MW Petroleum and any other Subsidiary contained in
the July 1991 Agreement, the April 1992 Agreement, the April 1994 Agreement,
this Agreement, or in any other Loan Document shall survive the delivery of the
Notes and the making of the Loans herein contemplated until all the Obligations
have been paid and this Agreement has been terminated.
14.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Company in violation of any limitation or prohibition
provided by any applicable statute or regulation.
14.3. Taxes. Any taxes (excluding income taxes) or other similar
assessments or charges payable or ruled payable by any governmental authority
in respect of the Loan Documents shall be paid by the Company, together with
interest and penalties, if any.
14.4. Headings. Article and section headings in the Loan
Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
14.5. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Company, the Agents and the Lenders and
supersede all prior agreements and understandings among the Company, the Agents
and the Lenders relating to the subject matter thereof.
14.6. Several Obligations. The respective obligations of the
Lenders hereunder are several and not joint and no Lender shall be the partner
or agent of any other (except to the extent to which an Agent is authorized to
act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement is not intended to, and shall not be construed so as
to, confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
14.7. Reimbursement of Costs and Expenses; Indemnification.
(a) Reimbursement of Costs and Expenses. The Company
shall reimburse each Agent for any reasonable costs, internal charges
and out-of-pocket expenses (including fees and expenses of consultants
and attorneys' fees and time charges of attorneys for such Agent,
which attorneys may be employees of such Agent) paid or incurred by
such Agent in connection with the preparation, review, execution,
delivery, amendment, modification and administration of the Loan
Documents including, without limitation, the fees incurred by such
Agent in connection with its initial evaluation of the Properties.
The Company shall reimburse each Agent and the Lenders for any costs,
internal charges and out-of-pocket expenses (including attorneys' fees
and time charges of attorneys for the Agent and the Lenders, which
attorneys may be employees of the Agents or the Lenders) paid or
incurred by any Agent or any Lender in connection with the collection
and enforcement of the Loan Documents.
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(b) Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Company hereby indemnifies,
exonerates and holds each Agent and each Lender, and their respective
directors, agents, officers and employees ("Indemnified Persons") free
and harmless from and against any and all losses, claims, damages,
penalties, judgments, liabilities, actions, suits, costs and expenses
(including, without limitation, all expenses of litigation or
preparation therefor whether or not any Agent or any Lender or any
Indemnified Person is a party thereto and all other attorneys' fees
and disbursements) (Claims") which any of them may pay or incur as a
result of, arising out of, or relating to,
(i) this Agreement, the other Loan
Documents, the transactions contemplated hereby or thereby;
(ii) the direct or indirect application or
proposed application of the proceeds of any Loan hereunder;
(iii) any transaction financed or to be
financed in whole or in part, directly or indirectly, with
the proceeds of any Loan;
(iv) any investigation, litigation or
proceeding related to any acquisition or proposed
acquisition by the Company, any of its Subsidiaries, Apache
Energy Resources or Apache Energy Limited of all or any
portion of the stock or assets of any Person, whether or
not any Agent or any Lender is party thereto;
(v) any investigation, litigation or
proceeding related to any environmental cleanup, audit,
compliance or other matter relating to any Environmental
Law or the condition of any facility or property owned,
leased or operated by the Company or any Subsidiary;
(vi) the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission,
discharging or releases from, any facility or property
owned, leased or operated by the Company or any Subsidiary
thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of,
the Company or such Subsidiary; or
(vii) any misrepresentation, inaccuracy or
any breach in or of Section 8.20 or Section 9.12;
(the foregoing collectively the "Indemnified Liabilities"), except to the
extent that a final order of a court of competent jurisdiction finds that such
Indemnified Liability arises solely from such Indemnified Person's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The
obligations of the Company under this Section 14.7 shall survive the
termination of this Agreement or any non-assumption of this Agreement in a
bankruptcy or similar proceeding. The Company shall be obligated to indemnify
the Indemnified Persons for all Claims regardless of whether the Company had
knowledge of the facts and circumstances giving rise to such Claims.
14.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with
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sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders and each of the Agents.
14.9. Severability of Provisions. Any provision in any Loan
Document 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 all Loan Documents are declared
to be severable.
14.10. Nonliability of Lenders. The relationship between the
Company on the one hand and the Lenders and the Agents on the other hand shall
be solely that of borrower and lender. None of the Agents nor any Lender shall
have any fiduciary responsibilities to the Company or any of its Subsidiaries
or Affiliates. None of the Agents nor any Lender undertakes any responsibility
to the Company or any of its Subsidiaries or Affiliates to review or inform the
Company of any matter in connection with any phase of the Company's or such
Subsidiary's or Affiliate's business or operations.
14.11. CHOICE OF LAW. THE 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 STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.12. CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE LENDERS OR THE COMPANY SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT ANY AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF ILLINOIS AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE COMPANY HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.13. Confidentiality. Each Lender and each Agent agrees to hold
any confidential information which it may receive from the Company pursuant to
this Agreement in confidence in accordance with the provisions set forth in
Exhibit "J" hereto. In addition to the disclosures permitted in such
provisions, the Lenders and the Agents each shall be permitted to make
disclosures of such information in accordance with Section 17.4.
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ARTICLE XV
THE ADMINISTRATIVE AGENT,
THE ARRANGERS AND THE ENGINEERING BANKS
15.1. Appointment of Agents. The First National Bank of Chicago
is hereby appointed Administrative Agent and Arranger hereunder and under each
other Loan Document, and Chemical is hereby appointed Co-Agent and Arranger
hereunder and under each other Loan Document, and each of First Chicago and
Chemical is appointed as an Engineering Bank hereunder and each of the Lenders
irrevocably authorizes each such Agent to act in such capacities. Each Agent
agrees to act as such upon the express conditions contained in this Article XV.
No Agent shall have a fiduciary relationship in respect of any Lender by reason
of this Agreement or any of the other Loan Documents.
15.2. Powers. Each Agent shall have and may exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to it by the terms of each thereof, together with such powers as are reasonably
incidental thereto. None of the Agents shall have implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action by an Agent specifically provided by the Loan Documents to be taken
by such Agent.
15.3. General Immunity. No Agent nor any of its respective
directors, officers, agents or employees shall be liable to any Lender or any
of the other Agents for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or wilful misconduct as
established by final order of a court of competent jurisdiction.
15.4. No Responsibility for Loans, Recitals, etc. No Agent nor
any of its respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article VII, except receipt by an
Agent of items required to be delivered to such Agent unless such condition
shall have been waived in accordance with Section 13.2; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or writing furnished in connection therewith.
15.5. Action on Instructions of Lenders. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders, the other Agents
and all holders of Notes.
15.6. Employment of Agents and Counsel. Each Agent may execute
any of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
respective duties hereunder and under any other Loan Document.
15.7. Reliance on Documents; Counsel. Each Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have
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been signed or sent by the proper person or persons, and, in, respect to legal
matters, upon the opinion of counsel selected by such Agent, which counsel may
be employees of the Agents or any of them.
15.8. Reimbursement and Indemnification. Each Lender agrees to
reimburse and indemnify each of the Administrative Agent, each Arranger and
each Engineering Bank ratably in proportion to such Lender's Aggregate
Commitments, (i) for any amounts (other than principal or interest) not
reimbursed by the Company or any Guarantor for which such Agent is entitled to
reimbursement by the Company under the Loan Documents, and (ii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be so liable to the extent any of the foregoing
is found by a final order of a court of competent jurisdiction to have arisen
solely from such Agent's gross negligence or willful misconduct.
15.9. Rights as a Lender. With respect to its Commitments, Loans
made by it and the Notes issued to it, each Agent shall have the same rights
and powers hereunder and under each other Loan Document as any Lender and may
exercise the same as though it did not hold such role, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include each of them
in its individual capacity. In addition to, and not by way of limitation of
the rights set forth in Section 15.2 and this Section 15.9, each Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking or trust business with the Company or any Subsidiary or any other
Affiliate of the Company as if it did not hold such role.
15.10. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and
based on the financial statements prepared by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. 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 deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
15.11. Certain Successor Agents. Any Agent may resign at any time
by giving thirty (30) days' prior written notice thereof to the Lenders and the
Company. Upon any such resignation, the Company shall, if no Default or
Unmatured Default has occurred and is continuing, have the right (subject to
the consent of the Required Lenders) to appoint, on behalf of the Company and
the Lenders, a Lender as a successor Agent. If no successor Agent shall have
been so appointed by the Company and shall have accepted such appointment
within thirty (30) days' after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint, on behalf of the Company and
the Lenders, a Lender as a successor Agent; provided, however, that the Company
may, within the one year period following the appointment of a successor Agent,
and upon thirty (30) days written notice to the Lenders, remove the successor
Agent and appoint a successor Agent acceptable to the Company (subject to the
consent of the Required Lenders). Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and Obligations (but not any liability arising from its gross negligence
or wilful misconduct as established by a final order of a court of competent
jurisdiction) hereunder and under the other Loan Documents. After any retiring
Agent's resignation hereunder
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as Agent, the provisions of this Article XV shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as an Agent hereunder and under the other Loan Documents.
ARTICLE XVI
SETOFF; RATABLE PAYMENTS
16.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Company becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs, any indebtedness
from any Lender to the Company (including all account balances, whether
provisional or final and whether or not collected or available) may be offset
and applied toward the payment of the Obligations owing to such Lender, whether
or not the Obligations, or any part hereof, shall then be due and payable.
16.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans in a greater proportion than
it would have received pursuant to an allocation using the method set forth in
Section 4.3 or 4.4 (except for payments made with respect to 1994 Revolving
Loans which are outstanding on the Effective Date pursuant to Section 7.1(d)),
such Lender agrees, promptly upon demand, to purchase a portion of the Loans
held by the other Lenders so that after such purchase each Lender will hold its
ratable proportion of such type of Loans. If any Lender, whether in connection
with setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to set off, such Lender agrees, promptly upon demand, to take such
action necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to the Obligations owing to each of them. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
ARTICLE XVII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
17.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Company,
the Agents and the Lenders and their respective successors and assigns, except
that the Company shall not have the right to assign its rights or obligations
under the Loan Documents and any assignment by any Lender must be made in
compliance with Section 17.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 17.3 in the case of an assignment thereof or, in
the case of any other transfer, a written notice of the transfer is filed with
such Agent. Any assignee or transferee of a Note agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
17.2. Participations.
(a) Any Lender, in the ordinary course of its business
and in accordance with applicable law, at any time may sell to one or
more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In
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the event of any such sale by a Lender of participating interests to a
Participant, such Lender's Obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note or Obligation for all
purposes under the Loan Documents, and the Company and the Agents
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
(b) Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, postpones any
date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, or reimbursement obligation with respect to, any
such Loan or Commitment, releases any guarantor of any such Obligation
or releases all or substantially all of the collateral (except as
permitted by Section 13.2(d)), if any, securing any such Obligation.
(c) The Company agrees that each Participant shall be
deemed to have the right of setoff provided in Section 16.1 in respect
of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 16.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of
setoff provided in Section 16.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 16.2 as if each
Participant were a Lender. The Company also agrees that each
Participant shall be entitled to the benefits of Sections 6.1 and 6.3
with respect to its participation in the Commitments or the Loans
outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such Sections than
the transferor Lender would have been entitled to receive in respect
of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
17.3. Assignments.
(a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to
one or more banks or other entities (Purchasers") all or any part of
its rights and obligations under the Loan Documents subject to a
minimum of $15,000,000 or such lesser amount as may be agreed to by
the Company; provided that with respect to any Purchaser which is not
an Affiliate of such assigning Lender, such assignment shall require
the consent of the Company, which consent of the Company shall not be
unreasonably withheld or delayed. Such assignment shall be
substantially in the form of Exhibit "D" hereto. The consent of the
Administrative Agent shall also be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender.
All such consents shall be substantially in the form attached as
Exhibits "D-II" or "D-III" to Exhibit "D" hereto and shall not be
unreasonably withheld.
(b) Upon (i) delivery to the Administrative Agent of a
notice of assignment, substantially in the form attached as Exhibit
"D-I" to Exhibit "D" hereto (a "Notice of Assignment"), together with
any consents
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required by Section 17.3.(a), and (ii) payment of a $3,000 fee to the
Administrative Agent for processing such assignment, such assignment
shall become effective on the effective date specified in such Notice
of Assignment; provided, however, that any amounts paid by the Company
to, or for the benefit of, the assigning Lender, on or before the
execution date of the assignment, if such date is later than the
effective date of the assignment, shall be deemed paid to and for the
benefit of the Purchaser for all purposes. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a
Lender, party to this Agreement and any other Loan Document executed
by the Lenders, and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the
Company, the Lenders or any Agent shall be required to release the
transferor Lender, with respect to the percentages of the Commitment,
and the Loans assigned to such Purchaser and the transferor Lender
shall henceforth be so released. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 17.3(b, the Company
shall issue replacement Notes to such transferor Lender and shall
issue new Notes or, as appropriate, replacement Notes, to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
(c) The provisions of the foregoing clauses (a) and
(b) shall not apply to or restrict, or require the consent of or
notice to any Person to effectuate, the pledge or assignment by any
Agent or Lender of its rights or obligations under any Loan Documents
to any Federal Reserve Bank.
17.4. Dissemination of Information. The Company authorizes each
Agent and each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Company and the
Subsidiaries, provided that such Transferee and prospective Transferee agrees
in writing to be bound by Section 14.13 of this Agreement.
17.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 6.8.
ARTICLE XVIII
NOTICES
18.1. Giving Notice. Except as otherwise permitted by Section
4.5 with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid, shall be
deemed given when received; any notice, if transmitted by telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case of
telexes).
18.2. Change of Address. The Company, each Agent, and each
Lender may change the address for service of notice upon it by a notice in
writing to the other parties hereto.
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ARTICLE XIX
COUNTERPARTS
This Agreement 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. This
Agreement shall be effective when it has been executed by the Company, the
Agents and the Lenders and each party has notified the Administrative Agent, by
telex, facsimile or telephone, that it has taken such action.
ARTICLE XX
NO ORAL AGREEMENTS
THIS WRITTEN AGREEMENT, THE NOTES, 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.
IN WITNESS WHEREOF, the Company, the Lenders and the Agents have
executed this Agreement as of the date first above written.
APACHE CORPORATION
By:/s/ Clyde E. McKenzie
---------------------------------
Title: Clyde E. McKenzie
Vice President and Treasurer
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Attention: Clyde McKenzie
Vice President and Treasurer
with a copy to:
Zurab S. Kobiashvili
Vice President and General Counsel
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Facsimile: (713) 296-6459
Telephone: (713) 296-6000
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Commitments
$550,000,000
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative
Agent, Arranger and Engineering Bank
By: /s/ W. Walter Green
--------------------------------------
Title: W. Walter Green, Attorney-in-fact
for The First National Bank of
Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: W. Walter Green, III
Petroleum and Mining
Division
Suite 0363
Facsimile: (312) 732-3055
Telephone: (312) 732-7235
with a copy to:
Attention: Thomas E. Both
Syndications and
Placements/Agency
Suite 0353
Facsimile: (312) 732-2038
Telephone: (312) 732-7268
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$450,000,000 CHEMICAL BANK, Individually and as Co-
Agent, Arranger and Engineering Bank
By: /s/ Ronald Potter
---------------------------------
Title: Managing Director
----------------------------
270 Park Avenue
Energy Portfolio, 10th Floor
New York, New York 10017-2070
Attention: Ronald Potter
Facsimile: (212) 270-3860
Telephone: (212) 270-2057
with a copy to:
Lori Vetters
Chemical Banking Corporation
707 Travis
5th Floor North
Houston, Texas 77002
Facsimile: (713) 236-4117
Telephone: (713) 236-4332
________________
$1,000,000,000
AGGREGATE
COMMITMENT
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SCHEDULE B
ALTERNATE BASE RATE SPREAD
Less .40/ .45/ .50/ .55/ .60 or
Debt/Capitalization Ratio than .40 .449 .499 .549 .599 greater
- ------------------------- -------- ---- ---- ---- ---- -------
BBB/Baa2 or Higher*
Floating Spread 0 0 0 0 .125% .125%
BBB-/Baa3 or Higher*
Floating Spread 0 0 0 0 .125% .375%
Lower than BBB-/Baa3*
Floating Spread 0 0 0 0 .375% .50%
EURODOLLAR SPREAD
Less .40/ .45/ .50/ .55/ .60 or
Debt/Capitalization Ratio than .40 .449 .499 .549 .599 greater
- ------------------------- -------- ---- ---- ---- ---- -------
BBB/Baa2 or Higher*
Eurodollar Spread .25% .375% .50% .875% 1.125% 1.125%
BBB-/Baa3 or Higher*
Eurodollar Spread .375% .50% .625% .875% 1.125% 1.375%
Lower than BBB-/Baa3*
Eurodollar Spread .50% .50% .625% 1.00% 1.375% 1.50%
FACILITY FEE RATES
Less .40/ .45/ .50/ .55/ .60 or
Debt/Capitalization Ratio than .40 .449 .499 .549 .599 greater
- ------------------------- -------- ---- ---- ---- ---- -------
BBB/Baa2 or Higher*
Facility Fee .25% .25% .25% .375% .375% .375%
BBB-/Baa3 or Higher*
Facility Fee .25% .25% .375% .375% .375% .375%
Lower than BBB-/Baa3*
Facility Fee .25% .25% .375% .375% .375% .50%
- -------------
* Rating of the Company's Long-Term Debt by (2) two or more Rating Agencies