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EXHIBIT 10.4
October 31, 1996
To each of the Parties Listed
on attached Schedule I
Re: Apache Corporation Global Credit Facility Indemnity Agreement
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Intercreditor Agreement of
even date herewith, in the form attached hereto as Exhibit "A" unless the
parties hereto otherwise agree (the "Intercreditor Agreement"), among the
various commercial lending institutions (the "U.S. Lenders") as are or may
become parties to that certain Fourth Amended and Restated Credit Agreement of
even date herewith among the U.S. Borrower (as herein defined), the U.S.
Lenders, the Global Administrative Agent (as herein defined), the U.S. Co-Agent
(as herein defined) and the Arrangers therein named (the "Arrangers") (as it
may be amended, supplemented, restated or otherwise modified and in effect from
time to time, the "U.S. Credit Agreement"), the various commercial lending
institutions (the "Australian Lenders") as are or may become parties to that
certain Credit Agreement of even date herewith among the Australian Borrower
(as herein defined), the Australian Lenders, the Global Administrative Agent,
the Australian Administrative Agent (as herein defined) and the Arrangers (as
it may be amended, supplemented, restated or otherwise modified and in effect
from time to time, the "Australian Credit Agreement"), the various commercial
lending institutions (the "Canadian Lenders", and together with the U.S.
Lenders and the Australian Lenders, the "Lenders") as are or may become parties
to that certain Credit Agreement of even date herewith among the Canadian
Borrower (as herein defined), the Canadian Lenders, the Global Administrative
Agent, the Canadian Administrative Agent (as herein defined) and the Arrangers
(as it may be amended, supplemented, restated or otherwise modified and in
effect from time to time, the "Canadian Credit Agreement"), The First National
Bank of Chicago, as Global Administrative Agent (the "Global Administrative
Agent"), The Chase Manhattan Bank, as Co-Agent under the U.S. Credit Agreement
(the "U.S. Co-Agent"), Chase Securities Australia Limited (ACN 002 888 011), as
the Administrative Agent for the Australian Lenders (the "Australian
Administrative Agent"), Bank of Montreal, as the Administrative Agent for the
Canadian Lenders (the "Canadian Administrative Agent" and together with the
Global Administrative Agent and the Australian Administrative Agent, the
"Administrative Agents"), First Chicago Capital Markets, Inc., as Arranger, and
Chase Securities Inc., as Arranger; (ii) that certain Fourth Amended and
Restated Credit Agreement of even date herewith among Apache Corporation (the
"U.S. Borrower"), the U.S. Lenders, the Global Administrative Agent, the U.S.
Co-Agent and the Arrangers; (iii) that certain Credit Agreement of even date
herewith among Apache Energy Limited (ACN 009 301
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 2
964) and Apache Oil Australia Pty. Limited (ACN 050 611 688) (collectively, the
"Australian Borrower"), the Australian Lenders, the Global Administrative
Agent, the Australian Administrative Agent and the Arrangers; (iv) that certain
Credit Agreement of even date herewith among Apache Canada Ltd. (the "Canadian
Borrower", and together with the U.S. Borrower and the Australian Borrower, the
"Borrowers"), the Canadian Lenders, the Global Administrative Agent, the
Canadian Administrative Agent and the Arrangers, as each may be amended,
supplemented, restated or otherwise modified and in effect from time to time.
Capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Intercreditor Agreement.
The U.S. Borrower consents to the terms and provisions of this letter
agreement (this "Indemnity Agreement") and the Intercreditor Agreement,
including, without limitation, the terms and provisions regarding the
disclosure of information, the sharing of payments, and the purchase and sale
of participations in the Credit Agreements, consents to all actions required of
any Administrative Agent or Lender pursuant to the terms and conditions of the
Intercreditor Agreement, and agrees to take all actions necessary to give
effect to the terms and provisions of this Indemnity Agreement and the
Intercreditor Agreement. The U.S. Borrower agrees that any amounts which are
paid (or received by way of setoff, combination of accounts or similar
arrangements) to cure any Debt Limit Excession shall be made by the U.S.
Borrower to the U.S. Lenders, by the Australian Borrower to the Australian
Lenders and by the Canadian Borrower to the Canadian Lenders in accordance with
their respective Sharing Percentages as determined by the Administrative Agents
in accordance with the terms of the Intercreditor Agreement. It is the
intention of the parties hereto that, except as otherwise set forth in this
Indemnity Agreement, under no circumstances will any Borrower be required to
pay any principal amount under the Global Loan Documents in excess of
outstanding Obligations with respect to its Credit Agreement and any guaranty
executed by the Borrower plus any interest, fees and other amounts as set forth
in this Indemnity Letter and any other Global Loan Document.
If after any amount is paid under Section 3.3(c) of the Intercreditor
Agreement a Borrower or any trustee, liquidator, receiver or receiver-manager
or Person with analogous powers (collectively the "Reimbursed Borrower")
recovers any amount from any Lenders ("Disgorging Lenders") in respect of any
amount theretofore used to reduce outstanding Obligations under any Credit
Agreement or to purchase or repurchase participation interests from the other
Lenders, then the amount so recovered (including any interest paid by the
Lenders) shall be treated for all purposes: (i) as between the relevant
Reimbursed Borrower and the Disgorging Lenders, and (ii) as between the
Disgorging Lenders and the other Lenders (the "Non-Disgorging Lenders"), to be
outstanding as U.S. Credit Outstandings, Canadian Credit
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 3
Outstandings or Australian Credit Outstandings, as applicable, in which case
the Reallocable Payment Proportions shall thereupon be adjusted and,
notwithstanding the fact that no reallocable payment is received, Section
3.3(c) of the Intercreditor Agreement again applied in order that the
Reallocable Payment Proportions equal the applicable Target Sharing
Percentages.
To the extent the application of the provisions of this Indemnity
Agreement or the Intercreditor Agreement give rise to any liability for any tax
payments (other than income tax and franchise tax payments) in connection with
any payments made by the U.S. Borrower, the Australian Borrower, the Canadian
Borrower, any Administrative Agent, the Co-Agent, any Arranger, or any Lender
or any other party to any Credit Agreement, then (notwithstanding any
provisions to the contrary set forth in the Credit Agreements), the U.S.
Borrower agrees that the Borrowers, including the U.S. Borrower, jointly and
severally, shall indemnify each Lender, Administrative Agent, Co-Agent and
Arranger (the "Loan Parties") and shall hold each Loan Party free and harmless
from and against any such liability; provided, however, that each Loan Party
(if so requested by a Borrower under a Credit Agreement through the appropriate
Administrative Agent) will use good faith efforts to accommodate any reasonable
request by such Borrower in order to avoid the need for, or reduce the amount
of, such compensation so long as the request will not, in the sole opinion of
the applicable Loan Party, be disadvantageous to such Loan Party.
The U.S. Borrower agree to reimburse each Loan Party for any reasonable
costs and out-of-pocket expenses (including fees and expenses of consultants
and attorneys' fees (on a solicitor and his own client basis with respect to
the Canadian Loan Documents) for such Loan Party) paid or incurred by such Loan
Party in connection with the preparation, review, execution, delivery,
amendment, modification and administration of the Global Loan Documents,
including, without limitation, this Indemnity Agreement and the Intercreditor
Agreement. The U.S. Borrower agrees to reimburse each Loan Party for any
reasonable costs and out-of-pocket expenses (including attorneys' fees (on a
solicitor and his own client basis with respect to the Canadian Loan Documents)
for the Loan Parties) paid or incurred by any Loan Party in connection with the
collection and enforcement of the Global Loan Documents, including this
Indemnity Agreement and the Intercreditor Agreement.
The U.S. Borrower hereby indemnifies, exonerates and holds each Loan
Party, 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 Loan Party or any Indemnified Person is
a party thereto and all
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 4
other attorneys' fees (on a solicitor and his own client basis with respect to
the Canadian Loan Documents) and disbursements) ("Claims") which any of them
may pay or incur as a result of, arising out of, or relating to, this Indemnity
Agreement, the Intercreditor Agreement, the other Global Loan Documents or the
transactions contemplated hereby or thereby (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 U.S. Borrower
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 U.S. Borrower shall be obligated to indemnify the Indemnified
Persons for all Claims regardless of whether the U.S. Borrower had knowledge of
the facts and circumstances giving rise to such Claims.
Nothing contained in this agreement shall be construed in a manner which
would deem any party to this Indemnity Agreement, the Intercreditor Agreement
or any other Global Loan Document (under state law or for tax purposes) to be
acting in partnership with any other party. The obligations of the U.S.
Borrower under this Indemnity Agreement and the Intercreditor Agreement shall
survive the termination of this Indemnity Agreement, the Intercreditor
Agreement or any other Global Loan Document or any non-assumption of this
Indemnity Agreement, the Intercreditor Agreement or any other Global Loan
Document in a bankruptcy or similar proceeding.
This Indemnity Agreement may be executed in any number of counterparts
and by different parties on separate counterparts, and all such counterparts
shall together constitute but one and the same agreement.
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 5
THIS INDEMNITY AGREEMENT 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. This Indemnity
Agreement constitutes the entire understanding of the parties hereto with the
U.S. Borrower with respect to the Intercreditor Agreement and this Indemnity
Agreement and supersedes any prior agreements, written or oral, with respect
thereto.
Very truly yours,
Apache Corporation, as U.S. Borrower
By: /s/ Apache Corporation
--------------------------------
Name: Matthew W. Dundrea
Title: Treasurer
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 6
AGREED AND CONSENTED TO BY:
THE FIRST NATIONAL BANK OF CHICAGO,
as Global Administrative Agent and on behalf of
the U.S. Lenders under the U.S. Credit Agreement
By: /s/ THE FIRST NATIONAL BANK OF CHICAGO
---------------------------------------
Name: W. Walter Green
Title: Attorney-in-fact for
The First National Bank of Chicago
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 7
AGREED AND CONSENTED TO BY:
THE CHASE MANHATTAN BANK, as U.S. Co-Agent
By: /s/ THE CHASE MANHATTAN BANK
-----------------------------------
Name:
Title:
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 8
AGREED AND CONSENTED TO BY:
CHASE SECURITIES AUSTRALIA LIMITED (ACN 002 888 011), as
Australian Administrative Agent and on behalf of
the Australian Lenders under the Australian Credit Agreement
SIGNED on behalf of )
CHASE SECURITIES )
AUSTRALIA LIMITED )
by its attorney in the )
presence of: ) /s/ CHASE SECURITIES AUSTRALIA LIMITED
--------------------------------------
Attorney
Lori Vetters
- ------------------------------ -----------------------------------
Witness Print Name
Christopher Click
- ------------------------------
Print Name
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 9
AGREED AND CONSENTED TO BY:
BANK OF MONTREAL, as Canadian
Administrative Agent and on behalf of
the Canadian Lenders under the Canadian Credit Agreement
By: /s/ BANK OF MONTREAL
-----------------------------------
Name:
Title:
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 10
AGREED AND CONSENTED TO BY:
FIRST CHICAGO CAPITAL MARKETS,
INC., as Arranger
By: /s/ FIRST CHICAGO CAPITAL MARKETS, INC.
---------------------------------------
Name:
Title:
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To each of the Parties Listed
on attached Schedule I
October 31, 1996
Page 11
AGREED AND CONSENTED TO BY:
CHASE SECURITIES INC., as Arranger
By: /s/ CHASE SECURITIES INC.
-----------------------------------
Name: Tod Benton
Title: Managing Director
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SCHEDULE I
The First National Bank of Chicago,
as Global Administrative Agent
The Chase Manhattan Bank, as U.S. Co-Agent
Chase Securities Australia Limited, as
Australian Administrative Agent
Bank of Montreal, as Canadian
Administrative Agent
First Chicago Capital Markets, Inc., as Arranger
Chase Securities Inc., as Arranger
The U.S. Lenders party to the Fourth Amended
and Restated Credit Agreement
The Australian Lenders party to the Australian Credit Agreement
The Canadian Lenders party to the Canadian Credit Agreement
c/o The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
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================================================================================
INTERCREDITOR AGREEMENT
among
THE LENDERS UNDER THE U.S. CREDIT AGREEMENT, THE CANADIAN CREDIT AGREEMENT
AND THE AUSTRALIAN CREDIT AGREEMENT,
THE FIRST NATIONAL BANK OF CHICAGO,
as Global Administrative Agent,
THE CHASE MANHATTAN BANK,
as Co-Agent under the U.S. Credit Agreement,
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent,
BANK OF MONTREAL,
as Canadian Administrative Agent,
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Arranger,
and
CHASE SECURITIES INC.,
as Arranger
Dated as of October 31, 1996
================================================================================
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INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of October 31, 1996, is among the
various commercial lending institutions (the "U.S. Lenders") as are or may
become parties to the U.S. Credit Agreement (as herein defined), the various
commercial lending institutions (the "Canadian Lenders") as are or may become
parties to the Canadian Credit Agreement (as herein defined), the various
commercial lending institutions (the "Australian Lenders") as are or may become
parties to the Australian Credit Agreement (as herein defined), THE FIRST
NATIONAL BANK OF CHICAGO, as Global Administrative Agent (the "Global
Administrative Agent"), THE CHASE MANHATTAN BANK, as Co-Agent under the U.S.
Credit Agreement (the "U.S. Co-Agent"), CHASE SECURITIES AUSTRALIA LIMITED (ACN
002 888 011), as the Australian Administrative Agent for the Australian Lenders
(the "Australian Administrative Agent"), BANK OF MONTREAL, as the Canadian
Administrative Agent for the Canadian Lenders (the "Canadian Administrative
Agent" and together with the Global Administrative Agent and the Australian
Administrative Agent, the "Administrative Agents"), FIRST CHICAGO CAPITAL
MARKETS, INC., as Arranger, and CHASE SECURITIES INC., as Arranger.
RECITALS
A. The U.S Lenders, the Canadian Lenders and the Australian Lenders
agree that the Lenders (as herein defined) will rank pari passu with one
another with respect to certain payments or recoveries and that certain matters
relating to the administration of the U.S. Credit Agreement, the Canadian
Credit Agreement or the Australian Credit Agreement (together, the "Credit
Agreements") will be made based upon the Combined Commitments (as herein
defined) of the Lenders.
B. The pari passu sharing described above will be achieved in
certain circumstances by requiring the U.S. Lenders, the Canadian Lenders or
the Australian Lenders to purchase from the other Lenders participations in the
Loans advanced under the other Credit Agreements.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND TERMS OF CONSTRUCTION
1.1 Certain Definitions. When used herein, and unless otherwise
defined herein, terms and expressions defined in the U.S. Credit Agreement
shall have those meanings unless they are also defined in a different manner in
either the Australian Credit Agreement or the Canadian Credit Agreement (other
than any difference arising solely from conforming changes,
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such as the substitution of "Parent" for "Company"), in which case the
respective definitions set forth in the respective Credit Agreements shall
apply in relation to that Credit Agreement as required by the context; terms
defined in only one of the Credit Agreements shall have the meanings specified
in such Credit Agreement; and the following additional terms (whether or not
underscored) when used in this Intercreditor Agreement, including its preamble
and recitals, shall, except as otherwise set forth in this Section or where the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"Acceleration" means either (i) the termination of the Aggregate
Commitments under a Credit Agreement by reason of its stated maturity date or
(ii) the acceleration (after the occurrence of a Default) of the due date for
payment of the Obligations under a Credit Agreement automatically or by reason
of a declaration or demand.
"Administrative Agents" has the meaning set forth in the preamble
hereto.
"Agreement" means this Intercreditor Agreement, as it may be amended,
supplemented, restated or otherwise modified and in effect from time to time.
"Apache Energy Limited" means Apache Energy Limited, a corporation
organized under the laws of the State of Western Australia, Australia.
"Apache Oil Australia" means Apache Oil Australia Pty. Limited, a
corporation organized under the laws of the State of New South Wales,
Australia.
"Arrangers" has the meaning set forth in the U. S. Credit Agreement.
"Australian Administrative Agent" has the meaning set forth in the
preamble hereto.
"Australian Borrowers" means Apache Energy Limited and Apache Oil
Australia.
"Australian Commitments" has the meaning of the term "Aggregate
Commitment" as defined in the Australian Credit Agreement.
"Australian Credit Agreement" means that certain Credit Agreement of
even date herewith among the Australian Borrowers, the Australian Lenders, the
Global Administrative Agent, the Australian Administrative Agent and the
Arrangers, as it may be amended, supplemented, restated or otherwise modified
(as permitted hereunder) and in effect from time to time.
"Australian Credit Outstandings" means, in respect of any Australian
Lender, as at any date of determination thereof, the aggregate principal amount
of Loans outstanding from such Australian Lender under the Australian Credit
Agreement plus the aggregate amount of such
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Lender's Commitment Percentage (under the Australian Credit Agreement) of any
other liabilities, obligations or indebtedness, including, without limitation,
accrued but unpaid interest and fees, of the Australian Borrowers or any other
party to the Australian Loan Documents (other than any Lender or Agent) under
the Australian Loan Documents.
"Australian Lenders" has the meaning set forth in the preamble hereto.
"Australian Loan Documents" has the meaning of the term "Loan Documents"
as defined in the Australian Credit Agreement.
"Borrower" means the U.S. Borrower, the Canadian Borrower or the
Australian Borrowers.
"Canadian Borrower" means Apache Canada Ltd., a corporation organized
under the laws of the Province of Alberta, Canada.
"Canadian Commitments" has the meaning of the term "Aggregate
Commitment" as defined in the Canadian Credit Agreement.
"Canadian Credit Agreement" means that certain Credit Agreement of even
date herewith among the Canadian Borrower, the Canadian Lenders, the Global
Administrative Agent, the Canadian Administrative Agent and the Arrangers, as
it may be amended, supplemented, restated or otherwise modified (as permitted
hereunder) and in effect from time to time.
"Canadian Credit Outstandings" means, in respect of any Canadian Lender,
as at any date of determination thereof, the aggregate principal amount of
Loans outstanding from such Canadian Lender under the Canadian Credit Agreement
plus the aggregate amount of such Lender's Commitment Percentage (under the
Canadian Credit Agreement) of any other liabilities, obligations or
indebtedness, including, without limitation, accrued but unpaid interest and
fees, of the Canadian Borrower or any other party to the Canadian Loan
Documents (other than any Lender or Agent) under the Canadian Loan Documents.
"Canadian Lenders" has the meaning set forth in the preamble hereto.
"Canadian Loan Documents" has the meaning of the term "Loan Documents"
as defined in the Canadian Credit Agreement.
"Co-Agent" has the meaning set forth in the preamble hereto.
"Combined Commitments" means, at any time, the aggregate of the U.S.
Commitments, the Canadian Commitments and the Australian Commitments at such
time.
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"Combined Outstandings" means the aggregate of all U.S. Credit
Outstandings, Canadian Credit Outstandings and all Australian Credit
Outstandings.
"Combined Required Lenders" means, at any time, Lenders having greater
than 66-2/3% of the aggregate amount of the Combined Commitments at such time.
"Combined Super Majority Lenders" means, at any time, Lenders having 75%
of the aggregate amount of the Combined Commitments at such time.
"Commitment Percentage" means, as to any Lender under any Credit
Agreement, the percentage equivalent of a fraction the numerator of which is
the amount of such Lender's Commitment under such Credit Agreement and the
denominator of which is the aggregate amount of the Commitments of all Lenders
under such Credit Agreement.
"Credit Agreements" means the U.S. Credit Agreement, the Canadian Credit
Agreement and the Australian Credit Agreement.
"Debt Limit Excession" has the meaning of the term "Debt Limit
Excession" as defined in the U.S. Credit Agreement.
"Default" means a Default or Unmatured Default under (and as defined in)
any of the Credit Agreements.
"Downgrade Condition" has the meaning of the term "Downgrade Condition"
as defined in the U.S. Credit Agreement.
"Enforcing Party" has the meaning ascribed thereto in Section 2.6.
"Global Administrative Agent" has the meaning set forth in the preamble
hereto.
"Guaranty" means any "Guaranty" (as defined in any Credit Agreement)
delivered pursuant to such Credit Agreement, in each case as such guaranty may
from time to time be amended, supplemented, restated, reaffirmed or otherwise
modified.
"Lenders" means the U.S. Lenders, the Canadian Lenders and the
Australian Lenders.
"Loan Documents" means the Australian Loan Documents, the Canadian Loan
Documents and the U.S. Loan Documents.
"Reallocable Payment" means any amount received by a Lender, after the
applicable Sharing Date, in respect of a Credit Agreement by virtue of any
payment or prepayment made by or for the account of a Borrower (including for
greater certainty any payment made under
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a Guaranty of such Borrower's obligations and all amounts realized from the
exercise of any foreclosure or similar rights) or by virtue of an exercise of
any right of Set-Off.
"Reallocable Payment Proportion" means, at any time:
(a) for the U.S. Lenders, a percentage determined by dividing:
i. the aggregate of the U.S. Credit Outstandings at such time
plus any amounts paid by the applicable U.S. Lenders
pursuant to Section 3.3(c) plus any amounts distributed by
the applicable U.S. Lenders to any Canadian Lenders or
Australian Lenders as holders of participation interests
in the U.S. Credit Outstandings to such time less any
amounts received by the applicable U.S. Lenders pursuant
to Section 3.3(c) less any amounts received by the
applicable U.S. Lenders from either Canadian Lenders or
Australian Lenders by virtue of the applicable U.S.
Lenders' holding participation interests in either the
Canadian Credit Outstandings or the Australian Credit
Outstandings to such time, by
ii. the Combined Outstandings at such time;
(b) for the Canadian Lenders, a percentage obtained by dividing:
i. the aggregate of the Canadian Credit Outstandings at such
time plus any amounts paid by the applicable Canadian
Lenders pursuant to Section 3.3(c) plus any amounts
distributed by the applicable Canadian Lenders to any U.S.
Lenders or Australian Lenders as holders of participation
interests in the Canadian Credit Outstandings to such time
less any amounts received by the applicable Canadian
Lenders pursuant to Section 3.3(c) less any amounts
received by the applicable Canadian Lenders from either
U.S. Lenders or Australian Lenders by virtue of the
applicable Canadian Lenders' holding participation
interests in either the U.S. Credit Outstandings or the
Australian Credit Outstandings to such time, by
ii. the Combined Outstandings at such time; and
(c) for the Australian Lenders, a percentage determined by dividing:
i. the aggregate of the Australian Credit Outstandings at
such time plus any amounts paid by the applicable
Australian Lenders pursuant to Section 3.3(c) plus any
amounts distributed by the applicable Australian Lenders
to any U.S. Lenders or Canadian Lenders as holders of
participation interests in the Australian Credit
Outstandings to such time less any
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amounts received by the applicable Australian Lenders
pursuant to Section 3.3(c) less any amounts received by
the applicable Australian Lenders from either U.S. Lenders
or Canadian Lenders by virtue of the applicable Australian
Lenders' holding participation interests in either the
U.S. Credit Outstandings or the Canadian Credit
Outstandings to such time, by
ii. the Combined Outstandings at such time.
"Set-Off" means the exercise of any right of set-off, combination of
accounts, bankers' liens or similar mechanisms.
"Sharing Date" means, as applicable from time to time, the first to
occur of (i) the date on which any Acceleration has occurred or (ii) the date
on which any Default arising under Section 12.2 of any of the Credit Agreements
has occurred.
"Sharing Percentage" means, at any time:
(a) for the U.S. Lenders, the percentage determined by dividing the
U.S. Credit Outstandings by the Combined Outstandings at such
time; and
(b) for the Canadian Lenders, the percentage determined by dividing
the Canadian Credit Outstandings by the Combined Outstandings at
such time; and
(c) for the Australian Lenders, the percentage determined by dividing
the Australian Credit Outstandings by the Combined Outstandings
at such time.
"Target Sharing Percentages" means the Sharing Percentages of the U.S.
Lenders, the Canadian Lenders and the Australian Lenders determined as of the
applicable Sharing Date. After a Sharing Date, Target Sharing Percentages of
the Lenders shall be recalculated as of each January 1, April 1, June 1 and
September 1 using the Combined Outstandings as of the applicable Sharing Date.
"U.S. Borrower" means Apache Corporation, a corporation organized under
the laws of the State of Delaware.
"U.S. Commitments" has the meaning of the term "Aggregate Commitment" as
defined in the U.S. Credit Agreement.
"U.S. Credit Agreement" means that certain Fourth Amended and Restated
Credit Agreement of even date herewith among the U.S. Borrower, the U.S.
Lenders, the Global Administrative Agent, the Co-Agent and the Arrangers, as it
may be amended, supplemented, restated or otherwise modified (as permitted
hereunder) and in effect from time to time.
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"U.S. Credit Outstandings" means, in respect of any U.S. Lender, as at
any date of determination thereof, the aggregate principal amount of Loans
outstanding from such U.S. Lender under the U.S. Credit Agreement plus the
aggregate amount of such Lender's Commitment Percentage (under the U.S. Credit
Agreement) of any other liabilities, obligations or indebtedness, including,
without limitation, accrued but unpaid interest and fees, of the applicable
Borrower or any other party to the U.S. Loan Documents (other than any Lender
or Agent) under the U.S. Loan Documents.
"U.S. Lenders" has the meaning set forth in the preamble hereto.
"U.S. Loan Documents" has the meaning of the term "Loan Documents" as
defined in the U.S. Credit Agreement.
1.2 Headings. Article and section headings of this Agreement are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of this Agreement.
1.3 Agreement References. The term "this Agreement," "hereof,"
"hereunder" and similar expressions refer to this Agreement and not to any
particular Article, Section or other portion hereof and include any amendments
or supplements hereto. Unless otherwise stated, references herein to
"Sections" are to Sections of this Agreement.
1.4 Accounting and Financial Determination. Unless otherwise
specified, all accounting terms used herein shall be interpreted, all
accounting determinations and computations hereunder, and all financial
statements required to be delivered hereunder, shall be prepared in accordance
with, the Agreement Accounting Principles.
ARTICLE 2
CO-OPERATIVE ADMINISTRATION
2.1 Combined Voting. Notwithstanding anything to the contrary
provided in the Australian Credit Agreement, Canadian Credit Agreement or the
U.S. Credit Agreement:
(a) no decision, determination, instruction, action, consent, waiver
or amendment under any of the Credit Agreements which, by the
terms of the applicable Credit Agreement, requires approval,
agreement or consent by or from the "Required Lenders" (as such
expression is used in the respective Credit Agreement), and no
amendment of such requirement for such approval, agreement or
consent by or from such "Required Lenders," shall be made, taken,
implemented, given or effective unless, in addition to the
required approval, agreement or consent by or
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from the Required Lenders under the applicable Credit Agreement,
the same shall have been approved, agreed or consented to by the
Combined Required Lenders;
(b) no decision, determination, instruction, action, consent, waiver
or amendment under any of the Credit Agreements which, by the
terms of such Credit Agreement, requires approval, agreement or
consent by or from all Lenders under such Credit Agreement shall
be made, taken, implemented, given or effective unless, in
addition to the required approval, agreement or consent by or
from all Lenders under the applicable Credit Agreement, the same
shall have been approved, agreed or consented to by the Combined
Super Majority Lenders.
2.2 Notices and Communications. The Administrative Agents shall
without request, to the extent not delivered by the relevant Borrower, promptly
provide to each other, for distribution to the Lenders under the applicable
Credit Agreement, (i) copies of any material notices or other communications
received from a Borrower and material information received or determinations
made by any Borrower; (ii) each determination of the Global Borrowing Base;
(iii) any notice or other information concerning a redetermination or reduction
of Commitments under a Credit Agreement; (iv) any notice or other information
concerning a Debt Limit Excession or a Downgrade Condition; (v) all financial
statements or other reports provided by any of the Borrowers; (vi) each
Approved Engineers' Report or Company's Engineers' Report; (vii) each
certificate delivered pursuant to Sections 9.1(a), (c) and (k) of any of the
Credit Agreements; (viii) each notice delivered pursuant to Section 9.3 of any
of the Credit Agreements; (ix) all calculations or material furnished by a
Borrower or prepared by an Administrative Agent with respect to covenants
contained in a Credit Agreement; (x) all payments received in respect of any of
the Combined Obligations following a Default; and (xi) such other information
in the possession of such Administrative Agent (including engineering,
financial and non-financial information) as any of the Administrative Agents
may from time to time reasonably request; provided that such Administrative
Agent shall have no liability to the other Administrative Agents or any Lenders
for the failure to deliver such information unless such failure is the result
of the gross negligence or willful misconduct of such Administrative Agent.
2.3 Notice Requirements. Without restricting the obligations of the
Administrative Agents under Section 2.2, each Administrative Agent agrees with
the other Administrative Agents that it will:
(a) concurrently with the delivery thereof by it to a Borrower,
deliver to the other Administrative Agents a copy of any written
notice of any Default;
(b) promptly after receipt thereof, deliver to the other
Administrative Agents a copy of any notice or other information
concerning a Debt Limit Excession or Downgrade Condition;
8
22
(c) promptly after receipt thereof from a Borrower, deliver to the
other Administrative Agents a copy of any written notice received
from a Borrower under Section 9.3 of its Credit Agreement;
(d) deliver to the other Administrative Agents prompt written notice
of any declaration of Acceleration or determination that
Acceleration has occurred under its Credit Agreement or that all
or any portion of the Commitments under its Credit Agreement are
terminated;
(e) deliver to the other Administrative Agents prompt written notice
of the commencement of any legal actions or proceedings taken by
or on behalf of it against a Borrower by reason of or arising out
of any Default; and
(f) in the case of the U.S. Agent, deliver to the Canadian Agent and
the Australian Agent prompt written notice of any determination
or redetermination of the Global Borrowing Base (if any) under
the U.S. Credit Agreement.
2.4 Permitted Action by the Lenders. Notwithstanding any other
provision of this Agreement, any Administrative Agent or (subject to the terms
of the relevant Credit Agreement) any Lender may, without instruction from the
Administrative Agent or Lenders under the other Credit Agreements (but in no
event shall be required to), take action permitted by applicable law to
preserve its rights, including, but not limited, to curing any default or
alleged default under any contract entered into by the relevant Borrower, and
paying any tax, fee or expense on behalf of the relevant Borrower.
2.5 Co-operation. Each Administrative Agent (and, where applicable,
the Lenders under the respective Credit Agreements) agrees with the other
Administrative Agents (and, where applicable, the Lenders under the other
Credit Agreements) that:
(a) to the extent available, it will from time to time promptly
provide such information in its possession to the other
Administrative Agents as may be reasonably necessary to enable
the other Administrative Agents to make any calculation referred
to in or necessary to implement Article 3 hereof or otherwise
reasonably required by the other Administrative Agents for any
other purpose hereof;
(b) to the extent reasonably possible and provided that an
Administrative Agent shall not be required to breach any
confidentiality agreement to which it is party or any applicable
law, it will from time to time consult with the other
Administrative Agents in good faith regarding the enforcement of
its and each of the Lenders' rights and remedies under its Credit
Agreement with a view to recovering amounts due under the Credit
Agreements in an effective and cost-efficient manner;
9
23
(c) if, after a Default, it gains access to a Borrower's property,
assets, financial information or data bases pursuant to the
exercise of its secured rights, it will provide reasonable access
to the other Administrative Agents to the extent it may legally
do so; and
(d) each Lender will promptly notify the Administrative Agent under
the Credit Agreement to which it is a party in writing of the
receipt by such Lender of any Reallocable Payment and the
applicable Administrative Agent will promptly notify the other
Administrative Agents of such receipt.
2.6 Enforcement. From and after any Acceleration, where reasonably
practicable in the circumstances and in any event prior to the seeking of the
appointment of a receiver or receiver-manager or filing a bankruptcy petition
in respect of its Borrower, the Administrative Agent or Lender proposing to do
so (the "Enforcing Party") agrees to meet via telephone with the Administrative
Agents during reasonable business hours and to consult and cooperate with the
Administrative Agents in good faith regarding the enforcement of its rights and
each of its Lenders' rights with a view to recovering amounts due under the
Credit Agreements in an efficient and cost-efficient manner.
ARTICLE 3
PARI PASSU SHARING
3.1 Overall Intent. It is the intention of the Lenders that,
following the occurrence of any Debt Limit Excession or any Sharing Date, they
shall share in any payments delivered by, or any amounts resulting from Set-Off
against, the U.S. Borrower, the Canadian Borrower or the Australian Borrower to
cure such Debt Limit Excession (until the Debt Limit Excession is cured or
until a Sharing Date occurs), and after any Sharing Date in any Reallocable
Payments received, pro rata to their respective proportions of the Combined
Outstandings. It is the further intention of the Lenders that the pari passu
sharing arrangements set forth in this Article 3 shall never require that any
Lender purchase and continue to hold participations in an aggregate amount
greater than such Lender's Aggregate Commitments under any applicable Credit
Agreements.
3.2 Payments to Cure Debt Limit Excession. Upon the occurrence of a
Debt Limit Excession, the Administrative Agents shall determine the Sharing
Percentages of the U.S. Lenders, the Canadian Lenders and the Australian
Lenders at such time. The U.S. Borrower, the Canadian Borrower and the
Australian Borrower agree that any amounts which are paid to cure such Debt
Limit Excession shall be made by the U.S. Borrower to the U.S. Lenders, by the
Canadian Borrower to the Canadian Lenders and by the Australian Borrower to the
Australian Lenders in accordance with their respective Sharing Percentages as
so determined. For purposes of this Section 3.2 and until the Debt Limit
Excession is cured or a Sharing Date
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24
occurs, the Sharing Percentages of the Lenders shall be recalculated as of each
January 1, April 1, June 1 and September 1 using the Combined Outstandings at
the time of such Debt Limit Excession. If a Sharing Date occurs after a Debt
Limit Excession, the provisions of Section 3.3 shall be applicable to any
amount received by a Lender by way of a payment or Set-Off.
3.3 Equalization Following the Occurrence of the Sharing Date.
(a) As of a Sharing Date, the Target Sharing Percentages of the
respective Lenders shall be determined.
(b) Upon any receipt by any Administrative Agent or any Lender of any
Reallocable Payments (after giving effect to application of such
receipts), the Reallocable Payment Proportions of the U.S.
Lenders, the Canadian Lenders and the Australian Lenders shall be
determined.
(c) If the Reallocable Payment Proportions of the U.S. Lenders, the
Canadian Lenders and the Australian Lenders calculated pursuant
to Section 3.3(b) above are not equal to their respective Target
Sharing Percentages, then the Lenders whose Reallocable Payment
Proportion is less than their Target Sharing Percentages shall
first, repurchase participations previously sold by them to other
Lenders pursuant to previous applications of this Section 3.3(c)
(such participation interests to be allocated pro rata among the
sellers and the purchasers in accordance with their respective
Target Sharing Percentages) and then purchase participations in
the U.S. Credit Outstandings, the Canadian Credit Outstandings or
the Australian Credit Outstandings, as the case may be (such
participation interests to be allocated pro rata among the
sellers and the purchasers in accordance with their respective
Target Sharing Percentages), in U.S. Dollars on a non-recourse
basis so that, after such payment by the purchasing Lenders and
receipt thereof by the selling Lenders, their respective
Reallocable Payment Proportions shall equal their Target Sharing
Percentages; provided, however, that, if after any amount is paid
under this Section 3.3(c), a Borrower or any trustee, liquidator,
receiver or receiver-manager or Person with analogous powers
(collectively, the "Reimbursed Borrower") recovers any amount
from any Lenders ("Disgorging Lenders") in respect of any amount
theretofore used to reduce outstanding Obligations under any
Credit Agreement or to purchase or repurchase participation
interests from the other Lenders, then the amount so recovered
(including any interest paid by the Lenders) shall be treated for
all purposes:
i. as between the relevant Reimbursed Borrower and the
Disgorging Lenders; and
ii. as between the Disgorging Lenders and the other Lenders,
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25
to be outstanding as U.S. Credit Outstandings, Canadian Credit
Outstandings or Australian Credit Outstandings (as applicable),
in which case the Reallocable Payment Proportions shall thereupon
be adjusted and, notwithstanding the fact that no Reallocable
Payment is received, this Section 3.3(c) again applied in order
that the Reallocable Payment Proportions equal the applicable
Target Sharing Percentages.
(d) Notwithstanding anything contained in this Agreement or the
Credit Agreements, the purchase of participations hereunder by
any Lenders shall not constitute an acquisition by such Lenders
of any beneficial interest in the applicable Credit Agreement or
any amount owing thereunder but shall constitute risk sharing
payments among the Lenders and the beneficial interest in such
Credit Agreement and all Obligations owing under such Credit
Agreement shall at all times remain due and payable to the
Lenders under the applicable Credit Agreement.
3.4 Information. From time to time following the occurrence of an
Acceleration, each Lender shall promptly provide its Administrative Agent with
all necessary information to enable the Administrative Agent to calculate U.S.
Credit Outstandings, Canadian Credit Outstandings or Australian Credit
Outstandings, Target Sharing Percentages and Reallocable Payment Proportions of
the Lenders, including any payments received.
3.5 Pro Rata Treatment. The arrangements contemplated by this
Agreement shall apply notwithstanding the time of any Default or any
Acceleration under a Credit Agreement or demand under a Guaranty; the date of
advance of any funds; the date of appointment of any receiver or receiver-
manager or bankruptcy trustee or of taking any other enforcement proceedings;
the date of obtaining any judgment; any provision of applicable law or
requirement of any governmental or public body or authority, or any subdivision
thereof; any defense, claim or any right not provided under this Agreement; or
the terms of any agreement between any Lender and/or a Borrower under any other
document or instrument between or among such parties, whether or not
bankruptcy, receivership or insolvency proceedings shall at any time have been
commenced.
ARTICLE 4
RIGHTS OF LENDERS
4.1 Rights of Lenders. Subject to the terms of this Agreement, each
Administrative Agent and Lender shall be entitled to:
(a) deal with its Borrower and with others in connection with its
Credit Agreement, give notices to and accept notices from its
Borrower thereunder and administer its Credit Agreement in
accordance with the terms thereof and of applicable law;
12
26
(b) enforce the provisions of its Credit Agreement and Loan Documents
referred to therein to which it is a party, including suing for
enforcement of the representations, covenants and payment
obligations therein contained, whether or not it accelerates the
maturity of any payment obligations in accordance with the terms
thereof and of applicable law;
(c) demand repayment or accelerate the maturity of any payment
obligation under the Credit Agreement to which it is a party in
accordance with the terms thereof and of applicable law;
(d) amend or otherwise modify the Credit Agreement to which it is a
party, subject to the conditions, and in the manner, therein set
forth, provided that the definition of "Global Borrowing Base"
and all provisions and terms relating thereto which are set forth
in such Credit Agreement may not be amended or otherwise modified
without the written consent of the Combined Super Majority Banks;
or
(e) consent to any plan of arrangement or plan of reorganization
involving its Borrower under any bankruptcy or insolvency law.
ARTICLE 5
ASSIGNMENT
5.1 Assignees. No provision of this Agreement shall restrict in any
manner the assignment, participation or other transfer by a Lender of all or
part of its right, title or interest under its Credit Agreement; provided that,
unless the assignee becomes a Lender for purposes of this Agreement in
accordance with Article 17 of the Credit Agreements and agrees to comply with
the terms and provisions of this Agreement, the assigning Lender shall remain
responsible for performance of this Agreement with respect to the interest
assigned, all as more fully set forth herein.
ARTICLE 6
MISCELLANEOUS
6.1 No Partnership or Joint Venture. Nothing contained in this
Agreement, and no action taken by the Administrative Agents or the Lenders (or
any of them) pursuant hereto, is intended to constitute or shall be deemed to
constitute the Administrative Agents or the Lenders (or any of them) a
partnership, association, joint venture or other entity.
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27
6.2 Notices. All notices, requests and other communications to any
party hereunder shall be delivered in accordance with the delivery instructions
set forth in Article 18 of the applicable Credit Agreement.
6.3 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed by the Combined Super Majority Lenders; provided, however, that:
(a) the provisions of Section 3 of this Agreement, definitions used
in or relating to Section 3 of this Agreement and the provisions
of this Section 6.3 may only be amended with the unanimous
written consent of all of the Lenders;
(b) the provisions hereof relating to "Combined Super Majority Banks"
may only be amended with the unanimous written consent of the
Combined Super Majority Lenders; and
(c) the provisions hereof relating to the "Administrative Agents" may
only be amended with the unanimous written consent of the
Administrative Agents.
6.4 Currency and Payment Matters. All payments hereunder shall be
made in immediately available funds in United States Dollars. All payments to
any Lender hereunder shall be made to it, to the extent practicable, in
accordance with the provisions of the relevant Credit Agreement.
6.5 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single agreement, with the same effect as if
the signatories thereto and hereto were upon the same instrument. This
Agreement shall become effective when (i) executed by each of the parties
listed on the signature pages hereof and (ii) when all conditions precedent set
forth in Section 7.1 of each Credit Agreement are satisfied.
6.6 Benefits. This Agreement is solely for the benefit of and shall
be binding upon the Lenders and their successors or assigns, and neither the
Borrowers nor any other third party shall have any right, benefit, priority or
interest under or by reason of this Agreement.
6.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE APPLICABLE LAWS (OTHER THAN THE CONFLICT OF LAW RULES)
OF THE STATE OF ILLINOIS AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN
EFFECT. EACH PARTY HERETO IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS FOR PURPOSES OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
THAT MAY BE BROUGHT OR INSTITUTED AGAINST IT.
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6.8 Entire Agreement. This Agreement supersedes any conflicting
provisions in any other agreement or instruments (other than the Loan
Documents) to which any Lender or Administrative Agent is party, with respect
to the rights, duties and obligations of such Lender or Administrative Agent to
the other Lenders and Administrative Agents.
6.9 Time of the Essence. Time is of the essence of this Agreement.
6.10 Exculpation. No Lender or Administrative Agent makes any
representation or warranty, and no Lender or Administrative Agent and none of
such Lender's or Administrative Agent's directors, officers, employees or
agents shall (i) be responsible with respect to any recitals, representations
or warranties, or for the execution, legality, validity, accuracy, sufficiency,
genuineness, effectiveness or enforceability of this Agreement, any of the
other Loan Documents or any other instrument or document executed or delivered
hereunder or thereunder or in connection herewith or therewith, (ii) be under
any duty to any other Lender or Administrative Agent to inquire into or pass
upon any of the foregoing matters, or to make any inquiry concerning the
performance by any party under any of the Loan Documents, or (iii) in any event
be liable as such for any action taken or omitted by it or them, except for its
or their own gross negligence or willful misconduct. No Lender or
Administrative Agent assumes any responsibility for the financial condition of
any party to the Loan Documents, for the security value or existence of any of
the Properties, or for the performance of any obligations of any party to the
Loan Documents. No Lender or Administrative Agent shall incur any liability
under or in respect of this Agreement, of any other Loan Document or any
instrument or document delivered under or pursuant hereto or thereto by relying
upon any oral, telephonic, telegraphic, electronic or written request or
notice, consent, waiver, amendment, certificate, affidavit, letter, telegram,
statement, paper, schedule, agreement, report, instrument or document believed
by it to be genuine and signed or sent by the proper Person or Persons;
provided, however, that the foregoing shall not amend or modify any requirement
in any Loan Document that any notice under such Loan Document be in writing.
6.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6.12 Benefits of Article 15 of the Credit Agreements. Each of the
Administrative Agents, the Co-Agent and the Arrangers shall be entitled to the
benefits of Article XV of its Credit Agreement and also to the benefits of
Article XV of the other Credit Agreements as if it were a named party in such
Article and party to such other Credit Agreement (provided that any payment
under the indemnification provisions of Section 15.8 of any Credit Agreement
relating to the collection of the Combined Obligations shall be shared by all
Lenders as herein provided), in connection with the performance under this
Agreement.
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6.13 No Oral Agreements
THIS AGREEMENT AND ALL OTHER U.S. LOAN DOCUMENTS, CANADIAN LOAN
DOCUMENTS AND AUSTRALIAN LOAN DOCUMENTS (AS DEFINED IN THE RESPECTIVE CREDIT
AGREEMENTS) EXECUTED BY ANY OF THE PARTIES BEFORE OR SUBSTANTIALLY
CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF TOGETHER CONSTITUTE A WRITTEN LOAN
AGREEMENT AND 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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30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date hereof by their respective officers thereunto duly
authorized.
THE FIRST NATIONAL BANK OF CHICAGO, as
Global Administrative Agent
By: /s/ THE FIRST NATIONAL BANK OF CHICAGO
----------------------------------------
Name: W. Walter Green
Title: Attorney-in-fact for The First
National Bank of Chicago
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 1
31
THE CHASE MANHATTAN BANK, as Co-Agent under
the U.S. Credit Agreement
By: /s/ THE CHASE MANHATTAN BANK
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 2
32
CHASE SECURITIES AUSTRALIA LIMITED (ACN 002
888 011), as Administrative Agent under the
Australian Credit Agreement
SIGNED on behalf of )
CHASE SECURITIES AUSTRALIA )
LIMITED )
by its attorney in the )
presence of: ) /s/ CHASE SECURITIES AUSTRALIA LIMITED
-------------------------------------------
Attorney
Lori Vetters
- --------------------------------- -------------------------------------------
Witness Print Name
Christopher Click
- ---------------------------------
Print Name
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 3
33
BANK OF MONTREAL, as Administrative Agent
under the Canadian Credit Agreement
By: /s/ BANK OF MONTREAL
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 4
34
FIRST CHICAGO CAPITAL MARKETS, INC., as
Arranger
By: /s/ FIRST CHICAGO CAPITAL MARKETS, INC.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 5
35
CHASE SECURITIES INC., as Arranger
By: /s/ CHASE SECURITIES INC.
----------------------------------------
Name: Tod Benton
Title: Managing Director
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 6
36
THE FIRST NATIONAL BANK OF CHICAGO, as a
U.S. Lender
By: /s/ THE FIRST NATIONAL BANK OF CHICAGO
--------------------------------------
Name: W. Walter Green
Title: Attorney-in-fact for The First
National Bank of Chicago
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 7
37
THE CHASE MANHATTAN BANK, as a U.S. Lender
By: /s/ THE CHASE MANHATTAN BANK
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 8
38
BANK OF MONTREAL, as a U.S. Lender
By: /s/ BANK OF MONTREAL
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 9
39
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as a U.S. Lender
By: /s/ MORGAN GUARANTY TRUST COMPANY OF NEW YORK
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 10
40
NATIONSBANK OF TEXAS, N.A., as a
U.S. Lender
By: /s/ NATIONSBANK OF TEXAS, N.A.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 11
41
ROYAL BANK OF CANADA, as a U.S. Lender
By: /s/ ROYAL BANK OF CANADA
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 12
42
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a U.S. Lender
By: BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
----------------------------------------
Name: J. Stephen Mernick
Title: Senior Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 13
43
CIBC INC., as a U.S. Lender
By: /s/ CIBC INC.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 14
44
SOCIETE GENERALE, SOUTHWEST AGENCY, as a
U.S. Lender
By: /s/ SOCIETE GENERALE, SOUTHWEST AGENCY
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 15
45
ABN-AMRO BANK N.V. - HOUSTON AGENCY, as a
U.S. Lender
By: /s/ ABN-AMRO BANK N.V. - HOUSTON AGENCY
----------------------------------------
Name:
Title:
By: /s/ ABN-AMRO BANK N.V. - HOUSTON AGENCY
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 16
46
THE BANK OF NOVA SCOTIA, ATLANTA AGENCY, as
a U.S. Lender
By: /s/ THE BANK OF NOVA SCOTIA, ATLANTA AGENCY
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 17
47
CHRISTIANIA BANK OG KREDITKASSE, as a
U.S. Lender
By: /s/ CHRISTIANIA BANK OG KREDITKASSE
----------------------------------------
Name:
Title:
By: /s/ CHRISTIANIA BANK OG KREDITKASSE
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 18
48
CITIBANK, N.A., as a U.S. Lender
By: /s/ CITIBANK, N.A.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 19
49
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
as a U.S. Lender
By: /s/ THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 20
50
UNION BANK OF SWITZERLAND, HOUSTON AGENCY,
as a U.S. Lender
By: /s/ UNION BANK OF SWITZERLAND, HOUSTON AGENCY
----------------------------------------
Name:
Title:
By: /s/ UNION BANK OF SWITZERLAND, HOUSTON AGENCY
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 21
51
THE FIRST NATIONAL BANK OF BOSTON, as a
U.S. Lender
By: /s/ THE FIRST NATIONAL BANK OF BOSTON
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 22
52
BANQUE PARIBAS, as a U.S. Lender
By: /s/ BANQUE PARIBAS
----------------------------------------
Name:
Title:
By: /s/ BANQUE PARIBAS
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 23
53
COLORADO NATIONAL BANK, as a U.S. Lender
By: /s/ COLORADO NATIONAL BANK
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 24
54
THE FUJI BANK, LIMITED - HOUSTON AGENCY, as
a U.S. Lender
By: /s/ THE FUJI BANK, LIMITED - HOUSTON AGENCY
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 25
55
UNION BANK OF CALIFORNIA, N.A., as a
U.S. Lender
By: /s/ UNION BANK OF CALIFORNIA, N.A.
----------------------------------------
Name:
Title:
By: /s/ UNION BANK OF CALIFORNIA, N.A.
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 26
56
THE FIRST NATIONAL BANK OF CHICAGO,
AUSTRALIAN BRANCH (ARBN 065 752 918), as an
Australian Lender
SIGNED on behalf of )
THE FIRST NATIONAL BANK OF )
CHICAGO, AUSTRALIAN BRANCH )
by its attorney in the )
presence of: ) /s/ THE FIRST NATIONAL BANK OF CHICAGO,
AUSTRALIAN BRANCH
-------------------------------------------
Attorney
W. Walter Green, III,
- --------------------------------- -------------------------------------------
Witness Print Name
Francis R. Bradley, III
- ---------------------------------
Print Name
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 27
57
THE CHASE MANHATTAN BANK (ARBN 074 112
011), as an Australian Lender
SIGNED on behalf of )
THE CHASE MANHATTAN BANK )
by its attorney in the )
presence of: ) /s/ THE CHASE MANHATTAN BANK
-------------------------------------------
Attorney
Lori Vetters
- --------------------------------- -------------------------------------------
Witness Print Name
Christopher Click
- ---------------------------------
Print Name
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 28
58
J.P. MORGAN AUSTRALIA LIMITED (ACN 004 384
687), as an Australian Lender
SIGNED on behalf of )
J.P. MORGAN AUSTRALIA LIMITED )
by its attorney in the )
presence of: ) /s/ J.P. MORGAN AUSTRALIA LIMITED
-------------------------------------------
Attorney
- --------------------------------- -------------------------------------------
Witness Print Name
- ---------------------------------
Print Name
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 29
59
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (ARBN 064 874 531), SYDNEY
BRANCH, as an Australian Lender
By: /s/ BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
----------------------------------------
Name: J. Stephen Mernick
Title: Senior Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 30
60
CITIBANK, N.A. (ARBN 072 814 058), as an
Australian Lender
By: /s/ CITIBANK, N.A.
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 31
61
BANK OF MONTREAL, as a Canadian Lender
By: /s/ BANK OF MONTREAL
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 32
62
FIRST CHICAGO NBD BANK, CANADA, as a
Canadian Lender
By: /s/ FIRST CHICAGO NBD BANK, CANADA
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 33
63
THE CHASE MANHATTAN BANK OF CANADA, as a
Canadian Lender
By: /s/ THE CHASE MANHATTAN BANK OF CANADA
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 34
64
ROYAL BANK OF CANADA, as a Canadian Lender
By: /s/ ROYAL BANK OF CANADA
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 35
65
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Canadian Lender
By: /s/ CANADIAN IMPERIAL BANK OF COMMERCE
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 36
66
THE BANK OF NOVA SCOTIA, as a
Canadian Lender
By: /s/ THE BANK OF NOVA SCOTIA
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Name:
Title:
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
S - 37