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EXHIBIT 99.3
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SEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of May 8, 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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SEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of May 8, 1996, (this "Seventh 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 the
proposed merger of YPY Acquisitions, Inc., a Delaware corporation and a wholly-
owned Subsidiary of the Company ("YPY"), and The Phoenix Resource Companies,
Inc., a Delaware corporation ("Phoenix"), pursuant to that certain Agreement
and Plan of Merger, dated as of March 27, 1996, between the Company, YPY and
Phoenix (the "Phoenix Merger"), (ii) to permit the Company to replace Phoenix
as guarantor of the obligations of Phoenix Resources Company of Qarun, a
Delaware corporation and wholly-owned Subsidiary of Phoenix ("Phoenix Egypt"),
to the International Finance Corporation ("IFC") and certain participant banks
in connection with a project financing in the maximum aggregate amount of $50
million relating to the development of the Qarun oil and gas concession, (iii)
to permit the pledge of the stock of Phoenix Egypt by Phoenix Resources Company
International, a Delaware corporation ("Phoenix International"), to IFC and the
liens on substantially all of the property of Phoenix Egypt 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 definitions of "Phoenix", "Phoenix Egypt", "Phoenix
International" and "Phoenix Merger" in appropriate alphabetical order:
"Phoenix" means The Phoenix Resource Companies, Inc., a
Delaware corporation, and following the effective date of the Phoenix
Merger, the successor company to the
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merger between Phoenix and YPY pursuant to the terms thereof.
"Phoenix Egypt" means Phoenix Resources Company of Qarun,
Inc., a Delaware corporation and a wholly-owned Subsidiary of Phoenix
International.
"Phoenix International" means Phoenix Resources Company
International, a Delaware corporation and a wholly-owned Subsidiary of
Phoenix.
"Phoenix Merger" means the acquisition transaction
contemplated by that certain Agreement and Plan of Merger, dated as of
March 27, 1996, between the Company, YPY Acquisitions, Inc., a
Delaware corporation ("YPY"), and Phoenix under the terms of which
Phoenix will become a Subsidiary of the Company.
B. Section 2.3(b) of the Credit Agreement is hereby amended in
its entirety to the following:
" (b) Determination of Borrowing Base at Request of
Company. The Company may request two Borrowing Base determinations
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 any 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. Section 11.1 of the Credit Agreement is hereby amended (a) by
deleting from subsection 11.1(j) the letter "(i)" from the second line thereof
and by replacing it with the letter "(j)"; (b) by relettering subsection
11.1(j) as subsection 11.1(k); and (c) by inserting the following after
subsection 11.1(i) thereof:
(j) Other Indebtedness of Phoenix Egypt to IFC in a
maximum aggregate principal amount of $50,000,000, together with
interest, fees and expenses related thereto; and
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D. Section 11.2 of the Credit Agreement is hereby amended by
inserting the following proviso at the end of the first sentence thereof before
the period:
"provided, further, that the foregoing shall not prohibit the Phoenix
Merger".
E. Section 11.4 of the Credit Agreement is hereby amended by
amending subsection 11.4(d) of the Credit Agreement in its entirety to the
following:
"(d)(i) net Contingent Obligations of International, Apache Overseas,
Inc., Phoenix and any of their Subsidiaries consisting of foreign work
commitments or other similar obligations (but not including
obligations under authorizations for expenditures and other joint
operating arrangements) under exploration or production licenses or
agreements entered into by International, Apache Overseas, Inc.,
Phoenix or any of their Subsidiaries in the ordinary course of
business not to exceed $85,000,000 net at any one time outstanding for
all such Contingent Obligations and (ii) Contingent Obligations of
International, Apache Overseas, Inc., Phoenix and any of their
Subsidiaries consisting of obligations under authorizations for
expenditures and other joint operating arrangements entered into by
International, Apache Overseas, Inc., Phoenix or any of their
Subsidiaries in the ordinary course of business; provided that for
purposes of clause (d)(i), 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 in which International, Apache Overseas, Inc., Phoenix or
any of their Subsidiaries is required to perform or pay a certain
amount (but not including obligations under authorizations for
expenditures and other joint operating arrangements) 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,"
; (ii) by deleting the word "and" at the end of subsections 11.4(j); and (iii)
by inserting the following after subsection 11.4(k) thereof before the period:
", and (l) Contingent Obligations of the Company and Phoenix to IFC
relating to Phoenix Egypt not exceeding $50,000,000 in the aggregate,
together with interest, fees and expenses related thereto".
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F. Section 11.5 of the Credit Agreement is hereby amended by
inserting the following after subsection 11.5(j) thereof:
"(k) Liens securing the Indebtedness permitted in connection with
Section 11.1(j)."
G. Section 11.7 of the Credit Agreement is hereby amended by
inserting after the phrase "Apache Egypt" and before the semicolon preceding
the first proviso thereto the phrase "or Phoenix Egypt".
H. The proviso at the end of Section 11.10 of the Credit
Agreement is hereby amended in its entirety to the following:
"provided, however, that, notwithstanding the foregoing, this section
shall not apply to Apache Canada, Apache Egypt, Phoenix 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."
I. Section 11.11 of the Credit Agreement is hereby amended by
inserting the following proviso before the period at the end of the first
sentence thereof:
"provided, further, that the foregoing shall not prohibit the Phoenix
Merger".
J. Section 11.12 of the Credit Agreement is hereby amended (i) by
amending subsection 11.12(e) in its entirety to the following:
" (e) in the ordinary course of business,
Investments in Subsidiaries, including, without limitation,
International, Apache Energy Limited, Apache Overseas, Inc.,
DEKALB, Phoenix or any of their Subsidiaries, for (i) the
acquisition, exploration, drilling or development of
Properties which are located outside the United States of
America and are not included in the Borrowing Base, or (ii)
costs incurred in connection with gathering, processing,
transporting and marketing production from such Properties;"
; (ii) by amending subsections 11.12(i), (j) and (k) in their entirety to the
following:
" (i) Investments in Phoenix and its Subsidiaries
in connection with the Phoenix Merger and other Investments in
Phoenix permitted under Section 11.12(e);
provided, however, that
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(1) 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
(2) 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."
II. LIMITED WAIVER OF SECTION 2.3(A). In connection with the
Approved Engineers Report, dated as of December 31, 1995, received by the
Engineering Banks pursuant to Section 9.1(d) of the Credit Agreement, each of
the Lenders consent and agree to the extension of the time for the Engineering
Banks to make their determination of the Borrowing Base pursuant to Section
2.3(a) of the Credit Agreement from 30 days after receipt by the Engineering
Banks of the Approved Engineers Report to 60 days after receipt by the
Engineering Banks of the Approved Engineers Report. Except as set forth in
this section, this consent and agreement shall not be deemed to be a waiver or
amendment of any other provision or requirement of the Credit Agreement or
Section 2.3(a) thereto, now or hereafter.
III. EFFECTIVENESS. This Seventh 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).
IV. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce
the Lenders, the Administrative Agent, the Co-Agent and the Arrangers to enter
into this Seventh 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.
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(ii) The Company has the corporate power and authority and
legal right to execute and deliver this Seventh Amendment and to
perform its obligations hereunder. The execution and delivery by the
Company of this Seventh Amendment and the performance of its
obligations hereunder have been duly authorized by proper corporate
proceedings, and this Seventh 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 Seventh
Amendment and the Credit Agreement, as amended by this Seventh
Amendment, or (c) in the ability of the Company to perform its
obligations under this Seventh Amendment or the Credit Agreement, as
amended by this Seventh 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.
V. 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.
VI. REAFFIRMATION OF CREDIT AGREEMENT. This Seventh 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.
VII. GOVERNING LAW. THIS SEVENTH 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
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shall be in addition to and not in limitation of those provided by applicable
law.
VIII. SEVERABILITY OF PROVISIONS. Any provision in this Seventh
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 Seventh Amendment are
declared to be severable.
IX. COUNTERPARTS. This Seventh 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 Seventh Amendment by
signing any such counterpart.
X. HEADINGS. Article and section headings in this Seventh
Amendment are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Seventh Amendment.
XI. SUCCESSORS AND ASSIGNS. This Seventh Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
XII. NOTICE. THIS WRITTEN SEVENTH 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.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company, the Lenders, the Administrative
Agent, the Co-Agent and the Arrangers have executed this Seventh Amendment as
of the date first above written.
APACHE CORPORATION
By:/s/ Matthew W. Dundrea
---------------------------------------------
Name: Matthew W. Dundrea
Title: Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, as Administrative Agent
and as Arranger
By:/s/ George R. Schanz
---------------------------------------------
Name: George R. Schanz
Title: Vice President
CHEMICAL BANK, Individually, as Co-Agent
and as Arranger
By:/s/ R. Potter
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Name: Ronald Potter
Title: Mananging 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 of Texas, N.A., Individually and as
Lead Manager
By:/s/ Kristin B. Palmer
---------------------------------------------
Name: Kristin B. Palmer
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By:/s/ J. Stephen Mernick
---------------------------------------------
Name: J. Stephen Mernick
Title: Senior Vice President
BANQUE PARIBAS
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:/s/ R.A. Erbert
---------------------------------------------
Name: Richard A. Erbert
Title: Vice President
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MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By:
---------------------------------------------
Name:
Title:
ABN-AMRO BANK N.V. - HOUSTON AGENCY
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
---------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, ATLANTA
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/ Marjorie Futornick
---------------------------------------------
Name: Marjorie Futornick
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/ J. George Kubove
---------------------------------------------
Name: J. George Kobove
Title: Assistant Vice President
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:
---------------------------------------------
Name:
Title:
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CHRISTIANIA BANK OG KREDITKASSE
By:/s/ Steve Phillips
---------------------------------------------
Name: Steve Phillips
Title: Vice President
By:/s/ Carl-Petter Svendsen
---------------------------------------------
Name: Carl-Petter Svendsen
Title: First Vice President
COLORADO NATIONAL BANK
By:/s/ Charles S. Searle
---------------------------------------------
Name: Charles S. Searle
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:/s/ Satoru Otsubo
---------------------------------------------
Name: Satoru Otsubo
Title: Joint General Manager
ROYAL BANK OF CANADA, GRAND CAYMAN
(NORTH AMERICAN #1) BRANCH
By:/s/ Linda M. Stephens
---------------------------------------------
Name: Linda M. Stephens
Title: Manager
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