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EXHIBIT 10.7
________________________________________________________________________________
FIFTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of January 22, 1996
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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FIFTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of January 22, 1996, (the "Fifth 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
negative pledges by Apache Canada Ltd. (formerly known as DEKALB Energy Canada
Ltd.), Apache Qarun Corporation LDC and Apache Oil Egypt, Inc., (ii) to permit
the increase in the maximum availability under the Apache Canada Ltd. revolving
credit facility from $30,000,000 to $45,000,000, and (iv) 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 "Apache Canada" in appropriate alphabetical
order:
"Apache Canada" means Apache Canada Ltd. (formerly known as
DEKALB Energy Canada Ltd.), a corporation organized under the laws of
Alberta, Canada.
B. The definition of "Apache Egypt" appearing in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to the following:
"Apache Egypt" means Apache Oil Egypt, Inc., a Delaware
corporation, and Apache Qarun Corporation LDC, a Cayman Islands
company formed under the Companies Law of the Cayman Islands, British
West Indies.
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C. Section 11.4 of the Credit Agreement is hereby amended by
deleting subsections 11.4(i) and 11.4(j) in their entirety and inserting the
following before the period:
" (i) Contingent Obligations of the Company to IFC relating to Apache
Egypt not exceeding $25,000,000 in the aggregate principal amount,
together with interest, fees and expenses related thereto, (j)
Contingent Obligations of DEKALB in respect of the facility described
as item 1 of Part B of Schedule 11.1, and (k) 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".
D. Section 11.7 of the Credit Agreement is hereby amended by
deleting subsection 11.7(c) in its entirety and inserting the following before
the semicolon:
" (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 Indebtedness other than Indebtedness incurred under this
Agreement, the other Loan Documents, or the repurchase of any
remarketed notes under the Remarketed Note Program, Indebtedness of
Offshore, Indebtedness evidenced by the DEKALB Notes or Indebtedness
to the IFC in connection with Apache Egypt; 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 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
and B.2 of Schedule 11.1;".
E. Section 11.10 of the Credit Agreement is hereby amended in its
entirety to the following:
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
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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; provided, however, that,
notwithstanding the foregoing, this section shall not apply to Apache
Canada, Apache Egypt or any of their Subsidiaries or to any
restrictions on the creation, assumption or perfection of any Lien on,
or any transfer or sale of, any of their respective securities.
F. Part B of Schedule 11.1 of the Third Amended and Restated
Credit Agreement is hereby amended to read in its entirety as follows:
Indebtedness of DEKALB
1. A revolving credit facility with a maximum aggregate principal
amount of up to $45 million (U.S.) pursuant to that certain
Credit Agreement, dated as of May 17, 1995, among Apache
Canada Ltd. (formerly known as DEKALB Energy Canada, Ltd.),
various financial institutions and the Bank of Montreal, as
Agent, as may be amended from time to time.
2. An overdraft facility of Apache Canada Ltd. (formerly known as
DEKALB Energy Canada Ltd.) at Royal Bank of Canada not to
exceed $5 million (U.S.) in amount to facilitate check
clearing.
3. 10% Notes of DEKALB due April 15, 1998 (approximately $22.1
million (U.S.) in outstanding principal amount as of March 1,
1995).
4. 9 7/8% Notes of DEKALB due July 15, 2000 (approximately $29.2
million (U.S.) in outstanding principal amount as of March 1,
1995).
II. EFFECTIVENESS. This Fifth 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).
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III. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce
the Lenders, the Administrative Agent, the Co-Agent and the Arrangers to enter
into this Fifth 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 Fifth Amendment and to perform
its obligations hereunder. The execution and delivery by the Company
of this Fifth Amendment and the performance of its obligations
hereunder have been duly authorized by proper corporate proceedings,
and this Fifth 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 Fifth
Amendment and the Credit Agreement, as amended by this Fifth
Amendment, or (c) in the ability of the Company to perform its
obligations under this Fifth Amendment or the Credit Agreement, as
amended by this Fifth Amendment.
(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.
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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.
V. REAFFIRMATION OF CREDIT AGREEMENT. This Fifth 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 FIFTH 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 Fifth
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 Fifth Amendment are
declared to be severable.
VIII. COUNTERPARTS. This Fifth 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 Fifth Amendment by
signing any such counterpart.
IX. HEADINGS. Article and section headings in this Fifth
Amendment are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Fifth Amendment.
X. SUCCESSORS AND ASSIGNS. This Fifth Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
XI. NOTICE. THIS WRITTEN FIFTH 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 Fifth 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/ Steven P. Capouch
------------------------------------
Name: Steven P. Capouch
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
------------------------------------
Name: Robert L. Roberts
Title: Director, U.S. Corporate Banking
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CIBC INC., Individually and as
Lead Manager
By:/s/ Gary C. Gaskill
--------------------------------
Name: Gary C. Gaskill
Title: Authorized Signatory
NATIONSBANK, Individually and as
Lead Manager
By:/s/ Jo A. Tamalis
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Name: Jo A. Tamalis
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By:/s/ C. Paige DiMaggio
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Name: C. Paige DiMaggio
Title: Vice President
BANQUE PARIBAS
By:/s/ Charles K. Thompson
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Name: Charles K. Thompson
Title: Group Vice President
By:/s/ David P. Lee
--------------------------------
Name: David P. Lee
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By:/s/ Richard 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: ABN AMRO North America, Inc.,
as Agent
By:/s/ Michael Oakes
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Name: Michael N. Oakes
Title: Vice President and Director
By:/s/ W. Bryan Chapman
--------------------------------
Name: W. Bryan Chapman
Title: Vice President and Director
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/ Arezoo Jafari
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Name: Arezoo Jafari
Title: Assistant Vice President
THE FUJI BANK, LIMITED - HOUSTON
AGENCY
By:/s/ Soichi Yoshida
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Name: Soichi Yoshida
Title: Vice President & Senior
Manager
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY
By:/s/ Evans Swann
--------------------------------
Name: Evans Swann
Title: Managing Director
By:/s/ Kelly Boots
--------------------------------
Name: Kelly Boots
Title: Assistant Treasurer
UNION BANK
By:/s/ Richard P. DeGrey
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Name: Richard P. DeGrey
Title: Vice President
By:
--------------------------------
Name:
Title:
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CHRISTIANIA BANK OG KREDITKASSE
By:/s/ Jahn O. Roising
--------------------------------
Name: Jahn O. Roising
Title: First Vice President
By:/s/ Peter M. Dodge
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Name: Peter M. Dodge
Title: Vice President
COLORADO NATIONAL BANK
By:/s/ Kathryn A. Gaiter
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Name: Kathryn A. Gaiter
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By:/s/ S. Otsubo
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Name: Satoru Otsubo
Title: Joint General Manager
ROYAL BANK OF CANADA, GRAND CAYMAN
(NORTH AMERICAN #1) BRANCH
By:/s/ Linda M. Stephens
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Name: Linda M. Stephens
Title: Manager
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