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EXHIBIT 10.6
________________________________________________________________________________
FOURTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of December 22, 1995
among
APACHE CORPORATION
and
VARIOUS COMMERCIAL LENDING INSTITUTIONS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Arranger
and
CHEMICAL BANK,
as Co-Agent and Arranger
________________________________________________________________________________
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FOURTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 22, 1995, (the "Fourth Amendment"), is among APACHE
CORPORATION, a Delaware corporation (the "Company"), the various commercial
lending institutions as are or may become parties hereto (the "Lenders"), THE
FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent (in such capacity, the
"Administrative Agent") and Arranger (in such capacity, an "Arranger") and
CHEMICAL BANK, as Co-Agent (in such capacity, the "Co-Agent") and Arranger (in
such capacity, an "Arranger").
W I T N E S S E T H:
1. The Company, the Lenders, the Arrangers, the Co-Agent and the
Administrative Agent have heretofore entered into that certain Third Amended
and Restated Credit Agreement, dated as of March 1, 1995, as previously amended
(the "Credit Agreement").
2. The Company, the Lenders, the Arrangers, the Co-Agent and the
Administrative Agent now intend to amend the Credit Agreement (i) to permit
Apache Gathering Company to become a member of Producers Energy Marketing, LLC,
(ii) to permit the Company to guarantee the payment of obligations of Apache
Gathering Company to Producers Energy Marketing, LLC and (iii) to address
various other issues in connection therewith as follows:
I. AMENDMENTS TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT.
A. Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition of "Producers Energy" in appropriate
alphabetical order:
"Producers Energy" means Producers Energy Marketing, LLC, a
Delaware limited liability company.
B. The definitions of "Contingent Obligation", "Indebtedness" and
"Subsidiary" appearing in Section 1.1 of the Credit Agreement are hereby
amended in their entirety to the following:
"Contingent Obligation" means, with respect to any Person as
of the time a determination thereof is to be made, any obligation,
contingent or otherwise, of any such Person, directly or indirectly,
guaranteeing, endorsing or otherwise becoming 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
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creditor against loss) for any Indebtedness of itself or of any other
Person (other than by endorsements of instruments in the course of
business).
"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 furtherthat for purposes of the foregoing clauses (ii), (iii)
and (ix), 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, marketing agreements
or arrangements, 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.
"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
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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;
further provided, that, notwithstanding the foregoing, Subsidiaries of
the Company shall not include Producers Energy except for the purposes
of Sections 8.10, 8.15, 8.16 and 12.1 (insofar as the representation
or warranty which is breached or shall be false was made pursuant to
Sections 8.10, 8.15 or 8.16).
C. Section 11.1 of the Credit Agreement is hereby amended by
deleting subsection 11.1(a) in its entirety and inserting the following before
the semicolon:
"(a) The Obligations arising under the Loan Documents,
Contingent Obligations permitted under Section 11.4 (whether or not
then payable), and intercompany Indebtedness pursuant to Investments
by the Company permitted by Sections 11.12(d), (e), (g), (h) and (i)".
D. Section 11.4 of the Credit Agreement is hereby amended (i) by
deleting "$45,000,000" from the fifth line of Section 11.4 and by replacing it
with "30,000,000"; (ii) by deleting subsection 11.4(h) in its entirety and
inserting the following before the comma:
"(h) Contingent Obligations of the Company or any of its Subsidiaries
in respect of itself or in respect of obligations of partnerships,
corporations or limited liability companies of which the Company or
its Subsidiaries are partners, shareholders or members, respectively,
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, marketing agreements
or
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arrangements, 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";
and (iii) by inserting the following after subsection 11.4(i) thereof before
the period:
", and (j) Contingent Obligations of the Company and any of its
Subsidiaries to or in respect of Producers Energy which when
aggregated with the Investments of the Company and any of its
Subsidiaries permitted with respect to Producers Energy pursuant to
subsection 11.12(c) do not exceed $30,000,000 in the aggregate".
E. Section 11.12 of the Credit Agreement is hereby amended by
deleting subsection 11.12(c) in its entirety and inserting the following before
the semicolon:
"(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 11.1 and Investments permitted as
Contingent Obligations pursuant to Section 11.4 (including, without
limitation, Investments of the Company and any of its Subsidiaries in
Producers Energy which when aggregated with the Contingent Obligations
of the Company and any of its Subsidiaries permitted pursuant to
subsection 11.4(j) do not exceed $30,000,000 in the aggregate)".
F. Section 14.7 of the Credit Agreement is hereby amended (i) by
deleting the word "or" at the end of subsection 14.7(b)(vi) and (ii) by
inserting the following after subsection 14.7(b)(vii) thereof:
"or (viii) any investigation, litigation or proceeding related to
any Investment by the Company, any of its Subsidiaries, Apache Energy
Resources, Apache Energy Limited or Producers Energy in any Person,
whether or not any Agent or any Lender is party thereto;".
II. EFFECTIVENESS. This Fourth Amendment shall become effective
as of the date hereof when the Administrative Agent shall have received
counterparts hereof duly executed by the Company, the Required Lenders, the
Administrative Agent and the Co-Agent (or, in the case of any party as to which
an executed counterpart shall not have been received, telegraphic, telex, or
other written confirmation from such party of execution of a counterpart hereof
by such party).
III. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce
the Lenders, the Administrative Agent, the Co-Agent and the
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Arrangers to enter into this Fourth Amendment, the Company hereby reaffirms, as
of the date hereof, its representations and warranties in their entirety
contained in Article VIII of the Credit Agreement and in all other documents
executed pursuant thereto (except to the extent such representations and
warranties relate solely to an earlier date) and additionally represents and
warrants as follows:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority, permits
and approvals, and is in good standing to conduct its business in each
jurisdiction in which its business is conducted.
(ii) The Company has the corporate power and authority and
legal right to execute and deliver this Fourth Amendment and to
perform its obligations hereunder. The execution and delivery by the
Company of this Fourth Amendment and the performance of its
obligations hereunder have been duly authorized by proper corporate
proceedings, and this Fourth Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(iii) No Default or Unmatured Default has occurred and is
continuing as of the date hereof.
(iv) There has been no material adverse change (a) in the
businesses, assets, properties, operations, condition (financial or
otherwise) or results of operations or prospects of the Company and
its Subsidiaries from March 1, 1995, (b) affecting the rights and
remedies of the Lenders under and in connection with this Fourth
Amendment and the Credit Agreement, as amended by this Fourth
Amendment, or (c) in the ability of the Company to perform its
obligations under this Fourth Amendment or the Credit Agreement, as
amended by this Fourth Amendment.1
(v) There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of
any of their officers threatened against or affecting the Company or
its Subsidiaries which is or could have a Material Adverse Effect.
IV. DEFINED TERMS. Except as amended hereby, terms used herein
when defined in the Credit Agreement shall have the same meanings herein unless
the context otherwise requires.
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V. REAFFIRMATION OF CREDIT AGREEMENT. This Fourth Amendment
shall be deemed to be an amendment to the Credit Agreement, and the Credit
Agreement, as amended hereby, is hereby ratified, approved and confirmed in
each and every respect. All references to the Credit Agreement herein and in
any other document, instrument, agreement or writing shall hereafter be deemed
to refer to the Credit Agreement as amended hereby.
VI. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
All obligations of the Company and rights of the Lenders, the Administrative
Agent, the Co-Agent and the Arrangers and any other holders of the Notes
expressed herein shall be in addition to and not in limitation of those
provided by applicable law.
VII. SEVERABILITY OF PROVISIONS. Any provision in this Fourth
Amendment that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Fourth Amendment are
declared to be severable.
VIII. COUNTERPARTS. This Fourth Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Fourth Amendment by
signing any such counterpart.
IX. HEADINGS. Article and section headings in this Fourth
Amendment are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Fourth Amendment.
X. SUCCESSORS AND ASSIGNS. This Fourth Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
XI. NOTICE. THIS WRITTEN FOURTH AMENDMENT TOGETHER WITH THE THIRD
AMENDED AND RESTATED CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the Company, the Lenders, the Administrative
Agent, the Co-Agent and the Arrangers have executed this Fourth Amendment as of
the date first above written.
APACHE CORPORATION
By:/s/ Clyde E. McKenzie
------------------------------------
Name: Clyde E. McKenzie
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, as Administrative Agent
and as Arranger
By:/s/ Christine Frank
------------------------------------
Name: Christine Frank
Title: Vice President
CHEMICAL BANK, Individually, as
Co-Agent and as Arranger
By:/s/ R. Potter
------------------------------------
Name: Ronald Potter
Title: Managing Director
BANK OF MONTREAL, Individually and as
Lead Manager
By:/s/ Robert Roberts
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Name: Robert L. Roberts
Title: Director, U.S. Corporate Banking
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CIBC INC., Individually and as Lead
Manager
By:
------------------------------------
Name:
Title:
NATIONSBANK, Individually and as Lead
Manager
By:/s/ Jo Tamalis
------------------------------------
Name: Jo A. Tamalis
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By:/s/ Laura B. Shepard
------------------------------------
Name: Laura B. Shepard
Title: Vice President
BANQUE PARIBAS
By:/s/ Charles K. Thompson
------------------------------------
Name: Charles K. Thompson
Title: Group Vice President
By:/s/ G.J. Jeram
------------------------------------
Name: G.J. Jeram
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By:/s/ R.A. Erbert
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Name: Richard A. Erbert
Title: Vice President
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MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By:/s/ P.W. McNeal
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Name: Philip W. McNeal
Title: Vice President
ABN-AMRO BANK N.V. - HOUSTON AGENCY
By:/s/ Michael N. Oakes
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Name: Michael N. Oakes
Title: Vice President
By:/s/ H. Gene Shiels
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Name: H. Gene Shiels
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By:/s/ Michael Kane
------------------------------------
Name: Michael Kane
Title: Managing Director
THE BANK OF NOVA SCOTIA, SAN FRANCISCO
AGENCY
By:/s/ A.S. Norsworthy
------------------------------------
Name: A.S. Norsworthy
Title: Assistant Agent
THE CHASE MANHATTAN BANK, N.A.
By:/s/ Bettylou J. Robert
------------------------------------
Name: Bettylou J. Robert
Title: Vice President
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CITIBANK, N.A.
By:/s/ Carolyn R. Bodmer
------------------------------------
Name: Carolyn R. Bodmer
Title: Vice President
THE FUJI BANK, LIMITED - HOUSTON AGENCY
By:/s/ Soichi Yoshida
------------------------------------
Name: Soichi Yoshida
Title: Vice President & Senior Manager
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY
By:/s/ E. Swann
------------------------------------
Name: Evans Swann
Title: Managing Director
By:/s/ Kelly Boots
------------------------------------
Name: Kelly Boots
Title: Assistant Treasurer
UNION BANK
By:/s/ Richard P. DeGrey
------------------------------------
Name: Richard P. DeGrey
Title: Vice President
By:/s/ W.M. Roth
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Name: Walter M. Roth
Title: Vice President
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CHRISTIANIA BANK OG KREDITKASSE
By:/s/ Peter M. Dodge
------------------------------------
Name: Peter M. Dodge
Title: Vice President
By:/s/ Hans Chr. Kjelsrud
------------------------------------
Name: Hans Chr. Kjelsrud
Title: Vice President
COLORADO NATIONAL BANK
By:
------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:/s/ S. Otsubo
------------------------------------
Name: Satoru Otsubo
Title: Joint General Manager
ROYAL BANK OF CANADA, GRAND CAYMAN
(NORTH AMERICAN #1) BRANCH
By:/s/ J.D. Frost
------------------------------------
Name: J.D. Frost
Title: Senior Manager
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