<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
( X ) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1994
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________________ to ____________________
Commission file number 1-4300
APACHE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 41-0747868
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Suite 100, One Post Oak Central
2000 Post Oak Boulevard, Houston, TX 77056-4400
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (713) 296-6000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES X . NO .
----- -----
Number of shares of Apache Corporation common stock, $1.25 par value,
outstanding as of June 30, 1994. . . . . . . . . . . . . . . . . . .61,353,087
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
APACHE CORPORATION AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED INCOME
(UNAUDITED)
(In thousands, except
per share data)
<TABLE>
<CAPTION>
For the Quarter For the Six Months
Ended June 30, Ended June 30,
------------------------- -------------------------
1994 1993 1994 1993
-------- -------- -------- --------
<S> <C> <C> <C> <C>
REVENUES:
Oil and gas production revenues $122,706 $105,113 $236,913 $206,863
Gathering, processing and
marketing revenues 10,530 5,965 17,294 12,035
Equity in income of affiliates 196 192 291 462
Other revenues 1,515 - 2,040 502
-------- -------- -------- --------
134,947 111,270 256,538 219,862
-------- -------- -------- --------
OPERATING EXPENSES:
Depreciation, depletion and
amortization 58,104 40,060 109,401 78,839
International impairments 2,800 3,600 6,300 7,200
Operating costs 33,027 30,230 66,176 59,502
Gathering, processing and
marketing costs 9,185 5,405 14,768 9,776
Administrative, selling and other 9,328 8,121 17,883 16,879
Financing costs:
Interest expense 7,564 6,528 14,095 14,455
Amortization of deferred
loan costs 949 953 1,712 1,994
Capitalized interest (1,149) (1,367) (2,170) (2,732)
Interest income (201) (46) (244) (186)
-------- -------- -------- --------
119,607 93,484 227,921 185,727
-------- -------- -------- --------
INCOME BEFORE INCOME TAXES 15,340 17,786 28,617 34,135
Provision for income taxes 5,144 6,291 9,014 11,048
-------- -------- -------- --------
NET INCOME $ 10,196 $ 11,495 $ 19,603 $ 23,087
======== ======== ======== ========
NET INCOME PER COMMON SHARE $ .17 $ .22 $ .32 $ .46
======== ======== ======== ========
WEIGHTED AVERAGE COMMON
SHARES OUTSTANDING 61,243 52,766 61,204 50,160
======== ======== ======== ========
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of this statement.
1
<PAGE> 3
APACHE CORPORATION AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
(In thousands) For the Six Months
Ended June 30,
----------------------------------
1994 1993
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 19,603 $ 23,087
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation, depletion and amortization 109,401 78,839
International impairments 6,300 7,200
Amortization of deferred loan costs 1,712 1,994
Provision for deferred income taxes 12,014 11,048
--------- ---------
149,030 122,168
Cash distributions less than
earnings of affiliates (291) (466)
Gain on sale of stock held for investment (1,464) -
Changes in operating assets and liabilities:
Increase in receivables (10,220) (5,152)
Increase in advances to oil and
gas ventures and other (3,847) (2,745)
(Increase) decrease in other assets (2,741) 118
Decrease in accounts payable (1,109) (20,828)
Decrease in accrued expenses (6,451) (12,366)
Decrease in deferred credits
and other noncurrent liabilities (3,904) (778)
--------- ---------
Net cash provided by operating activities 119,003 79,951
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Exploration and development expenditures (137,301) (102,979)
Acquisition of oil and gas properties (26,965) (44,122)
Non-cash portion of oil and gas property
additions 3,047 6,128
Proceeds from sale of oil and gas properties 125 2,420
Proceeds from sale of gas gathering system - 32,201
Purchase of HERC stock and other (14,885) (3,808)
Proceeds from sale of stock held for investment 2,262 -
Change in inventory, net (613) 890
Other capital expenditures, net (4,156) (26,394)
--------- ---------
Net cash used by investing activities (178,486) (135,664)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Long-term borrowings 92,462 65,665
Payments on long-term debt (27,012) (147,434)
Proceeds from issuance of common stock, net 3,043 132,554
Dividends paid (8,536) (6,978)
Costs of debt transactions (875) (270)
--------- ---------
Net cash provided by financing activities 59,082 43,537
--------- ---------
NET DECREASE IN CASH AND CASH EQUIVALENTS (401) (12,176)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 17,064 26,127
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 16,663 $ 13,951
========= =========
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of this statement.
2
<PAGE> 4
APACHE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
(In thousands) June 30, December 31,
1994 1993
------------ ------------
(Unaudited)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 16,663 $ 17,064
Receivables 102,060 91,840
Inventories 7,765 7,152
Advances to oil and gas ventures and other 10,731 6,884
------------ ------------
137,219 122,940
------------ ------------
PROPERTY AND EQUIPMENT:
Oil and gas on the basis of full
cost accounting:
Proved properties 2,675,305 2,516,801
Unproved properties and properties
under development, not being amortized 111,234 105,597
Gas gathering, transmission and
processing facilities 25,809 25,809
Other, at cost 40,631 36,938
------------ ------------
2,852,979 2,685,145
Less: Accumulated depreciation,
depletion and amortization (1,363,463) (1,248,685)
------------ ------------
1,489,516 1,436,460
------------ ------------
OTHER ASSETS:
Investments in affiliates 5,968 5,677
Deferred charges and other 28,976 27,330
------------ ------------
34,944 33,007
------------ ------------
$ 1,661,679 $ 1,592,407
============ ============
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of this statement.
3
<PAGE> 5
APACHE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
(In thousands) June 30, December 31,
1994 1993
------------ ------------
(Unaudited)
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt $ 620 $ 9,017
Accounts payable 103,421 118,447
Accrued operating expense 14,129 17,371
Accrued exploration and development 18,130 15,083
Accrued income taxes 2,611 6,048
Accrued interest 2,291 2,010
Accrued compensation and benefits 5,737 9,170
Other accrued expenses 8,187 8,244
------------ ------------
155,126 185,390
------------ ------------
LONG-TERM DEBT 526,856 453,009
------------ ------------
DEFERRED CREDITS AND OTHER NONCURRENT
LIABILITIES:
Income taxes 140,438 128,554
Advances on gas contracts 3,914 3,914
Future operating costs for royalty
interest sold 9,149 10,389
Other 26,200 25,297
------------ ------------
179,701 168,154
------------ ------------
SHAREHOLDERS' EQUITY:
Common stock, $1.25 par, 215,000,000
authorized, 62,482,043 and
62,334,241 shares issued, respectively 78,103 77,918
Paid-in capital 542,247 540,155
Retained earnings 193,218 182,195
Treasury stock, at cost, 1,128,956 and
1,248,827 shares, respectively (13,572) (14,414)
------------ ------------
799,996 785,854
------------ ------------
$ 1,661,679 $ 1,592,407
============ ============
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of this statement.
4
<PAGE> 6
APACHE CORPORATION AND SUBSIDIARIES
STATEMENT OF CONSOLIDATED RETAINED EARNINGS
(Unaudited)
<TABLE>
<CAPTION>
(In thousands) For the Quarter
Ended June 30,
-----------------------------------
1994 1993
---------- ----------
<S> <C> <C>
RETAINED EARNINGS, Beginning of period $ 187,316 $ 168,661
Net income 10,196 11,495
Dividends declared:
Common stock, $.07 per share (4,294) (3,694)
---------- ----------
RETAINED EARNINGS, End of period $ 193,218 $ 176,462
========== ==========
</TABLE>
<TABLE>
<CAPTION>
For the Six Months
Ended June 30,
-----------------------------------
1994 1993
---------- ----------
<S> <C> <C>
RETAINED EARNINGS, Beginning of year $ 182,195 $ 160,763
Net income 19,603 23,087
Dividends declared:
Common stock, $.14 per share (8,580) (7,388)
---------- ----------
RETAINED EARNINGS, End of period $ 193,218 $ 176,462
========== ==========
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of this statement.
5
<PAGE> 7
APACHE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
The financial statements included herein have been prepared by the Company,
without audit, pursuant to the rules and regulations of the Securities and
Exchange Commission, and reflect all adjustments which are, in the opinion of
management, necessary to a fair statement of the results for the interim
periods, on a basis consistent with the annual audited statements. All such
adjustments are of a normal recurring nature. Certain information, accounting
policies, and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
omitted pursuant to such rules and regulations, although the Company believes
that the disclosures are adequate to make the information presented not
misleading. These financial statements should be read in conjunction with the
financial statements and the summary of significant accounting policies and
notes thereto included in the Company's latest annual report on Form 10-K.
INCOME TAXES
Under the liability method specified by Statement of Financial Accounting
Standards No. 109, deferred taxes are determined based on the estimated future
tax effect of differences between the financial statement and tax bases of
assets and liabilities given the provisions of enacted laws.
INCOME PER SHARE
Primary income per common share was calculated by dividing net income by the
weighted average common shares outstanding. The effect of common stock
equivalents, including shares issuable upon the exercise of stock options
(calculated using the treasury stock method) and upon the assumed conversion of
the Company's 3.93 percent convertible notes, was not significant or was
anti-dilutive for all periods presented.
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
The Company considers all highly liquid debt instruments purchased with a
maturity of three months or less to be cash equivalents. These investments are
carried at cost which approximates market.
The following table provides additional disclosure of cash payments (in
thousands):
<TABLE>
<CAPTION>
For the Six Months
Ended June 30,
----------------------------------------
1994 1993
--------------- --------------
<S> <C> <C>
Cash paid during the period for:
Interest (net of amounts capitalized) $ 11,830 $ 15,648
Income taxes (net of refunds) $ (54) $ 1,371
</TABLE>
6
<PAGE> 8
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Financial Results
Apache reported net income of $10.2 million, or $.17 per share, for the second
quarter of 1994 compared to $11.5 million, or $.22 per share, for the same
period last year. Net income for the second quarter of 1994 included a $.02
per share gain on the sale of stock in another company. The primary factors
that contributed to lower earnings were a $2.56 per barrel decline in oil
prices and a $.12 per Mcf decline in natural gas prices from a year ago.
Earnings for the first six months of 1994 totaled $19.6 million, or $.32 per
share, compared to $23.1 million, or $.46 per share, during the first half of
1993. Lower oil prices from a year ago more than offset the impact of
increased oil and gas production.
The Company's 1994 financial performance was impacted by the following items.
Oil Prices -
While posted oil prices showed improvement during the second quarter of
1994, the Company's average realized prices for the quarter and first
half were down 14 percent and 22 percent, respectively, from the
comparable periods in 1993. The price declines, after considering
amortization expense and income taxes, negatively impacted Apache's
second quarter and first half earnings by $.10 per share and $.21 per
share, respectively.
Acquisitions -
During the second half of 1993, Apache purchased substantially all of
Hall-Houston Oil Company's (Hall-Houston) producing properties in the
Gulf of Mexico for $84.4 million and acquired Hadson Energy Resources
Corporation (HERC) for approximately $98 million. In June 1993, Apache
purchased Hall-Houston's interest in Mustang Island 787 and 805 for $29.3
million. The Hall-Houston and HERC acquisitions combined to increase
Apache's first half oil and gas production by approximately 4.3 thousand
barrels per day (MBopd) and 65 million cubic feet per day (MMcfd),
respectively. Apache spent approximately $27 million to acquire oil and
gas properties during the first half of 1994.
Drilling and Recompletions -
Apache's active drilling and recompletion program contributed
significantly to the Company's increase in production from a year ago.
Drilling in the Gulf of Mexico boosted first half gas production by 50
MMcfd, while drilling and recompletions in the Permian Basin added more
than 17 MMcfd. The increased production from acquisitions and drilling
mitigated the impact of lower oil prices realized in 1994.
7
<PAGE> 9
Results of Operations
<TABLE>
<CAPTION>
For the Quarter For the Six Months
Ended June 30, Ended June 30,
------------------------- -------------------------
1994 1993 1994 1993
--------- -------- -------- --------
Selected Oil and Gas
Operating Statistics
- - --------------------
<S> <C> <C> <C> <C>
Gas Volume - Mcf per day:
Domestic 402,765 271,158 392,820 271,081
Foreign 3,850 - 3,994 -
Total 406,615 271,158 396,814 271,081
Average Gas Price - Per Mcf $ 1.89 $ 2.01 $ 1.99 $ 2.00
Oil Volume - Barrels per day:
Domestic 32,461 31,093 32,233 30,969
Foreign 2,741 864 2,693 621
Total 35,202 31,957 34,926 31,590
Average Oil Price - Per barrel $ 15.95 $ 18.51 $ 14.42 $ 18.47
Natural Gas Liquids (NGL)
Barrels per day 1,356 1,489 1,340 1,379
NGL Price - Per barrel $ 12.60 $ 13.18 $ 11.83 $ 12.97
Domestic Full Cost
Amortization Rate 45.8% 37.0% 44.7% 37.0%
</TABLE>
Oil and gas production revenues for the second quarter and first half of 1994
increased over the prior year by 17 percent and 15 percent, respectively,
mainly due to record gas production and higher oil production.
Record production, as a result of successful acquisition and drilling efforts,
boosted second quarter gas sales to $70.1 million. Gas sales for the second
quarter of 1994 rose $20.6 million, or 42 percent, from the same period last
year. Acquisitions added more than 68 MMcfd to Apache's second quarter gas
production for a record 406.6 MMcfd. Developmental drilling and recompletions
in the Gulf of Mexico and the Permian Basin increased total gas production by
71 MMcfd. Apache's natural gas price declined six percent from second quarter
1993 to $1.89 per Mcf, negatively impacting 1994 sales by $4.1 million.
Gas sales rose 46 percent to $142.9 million for the six month period of 1994,
compared to $98 million in 1993. Apache produced 396.8 MMcfd during the first
half of the year, up from 271.1 MMcfd for the same period of 1993. The
Company's realized gas price of $1.99 per Mcf during the first half of 1994 was
$.01 per Mcf lower than last year's price of $2.00 per Mcf during the same
period.
Oil sales of $51.1 million for the 1994 second quarter were $2.7 million, or
five percent, lower than the previous year as a result of lower oil prices.
Apache's average oil price declined from $18.51 in the second quarter of 1993
to $15.95 in the current period. The $2.56 decline in oil price negatively
impacted 1994 sales by $8.2 million, as compared to 1993. Oil production
increased 3,245 barrels per day (Bopd), rising to 35,202 Bopd for the second
quarter of 1994. The higher production, driven by the HERC and Hall-Houston
acquisitions, offset $5.5 million of the sales decline attributable to lower
oil prices.
For the first six months of 1994, oil sales decreased 14 percent to $91.1
million compared to $105.6 million for the same period a year ago. In the
first half of 1994, oil production rose 10 percent to 34,926 Bopd compared to
31,590 Bopd last year. Apache's realized oil price of $14.42 per barrel for
the first six months of 1994 was $4.05 per barrel below the 1993 price of
$18.47 per barrel, negatively impacting sales by $25.6 million.
8
<PAGE> 10
Revenues from the sale of natural gas liquids and sulphur totaled $1.6 million
for the second quarter and $2.9 million for first half of 1994. Lower natural
gas liquids prices contributed to the $.2 million and $.4 million declines,
respectively, as lower crude oil prices depressed gas liquids prices.
During the second quarter, Apache sold 1.6 million shares of stock held for
investment for $2.3 million, resulting in a pre-tax gain of $1.5 million.
Gathering, processing and marketing revenues of $10.5 million for the second
quarter and $17.3 million for the first half of 1994 were 76 percent and 44
percent, respectively, higher than last year's revenues. Operating margins
increased $.8 million from the second quarter of 1993 and $.3 million from the
first six months, respectively, primarily due to increased crude oil marketing
activity.
Depreciation, depletion and amortization (DD&A) expense of $58.1 million for
the second quarter of 1994 and $109.4 million for the first half of the year,
increased 45 percent and 39 percent, respectively, over the comparable 1993
periods. DD&A expense for domestic oil and gas properties rose as a result of
the increase in oil and gas sales and an increase in Apache's domestic
amortization rate, expressed as a percentage of sales. The increase in the
DD&A rate is a function of lower oil prices and reserve replacement costs, on
an energy equivalency basis, in excess of the historical average. Part of the
cost increase is attributable to reserve additions for offshore properties.
Incurring higher costs for offshore reserves reflects Apache's expectations of
more rapid payouts associated with generally shorter reserve lives found in
Gulf of Mexico properties.
Operating costs rose $2.8 million, or nine percent to $33 million for the
quarter and $6.7 million, or 11 percent, to $66.2 million year-to-date from the
comparable periods last year due primarily to the impact of the acquisitions.
Operating costs include lifting costs, workover expense, production taxes and
severance taxes. Based on an equivalent unit of production, operating costs
declined 18 percent in the second quarter of 1994 and 15 percent in the first
half period to $3.52 per barrel of oil equivalent (Boe) and $3.62 per Boe,
respectively. The unit cost decline reflects continued cost savings efforts
and the addition of offshore properties which are not subject to production
taxes and traditionally have lower unit lifting costs.
Administrative, selling and other costs rose $1.2 million, or 15 percent, in
the second quarter of 1994 from a year ago, while dropping 14 percent on a Boe
basis. Costs increased $1 million, or six percent, in the first half of the
year compared to last year, while dropping 19 percent on an Boe basis. Apache
acquired HERC and the Hall-Houston properties with minimal increases in
Apache's administrative staff.
Net financing costs increased 18 percent for the quarter to $7.2 million, yet
dropped slightly in the comparable six month period. The increase in quarterly
financing costs reflects an increase in total debt of $128 million from March
31, 1993 to June 30, 1994. While rates have increased slightly in 1994,
Apache's average interest rate for the first half of 1994 decreased more than
100 basis points to 5.4 percent from Apache's average 1993 rate due to the
conversion of the 7 1/2-percent debentures in September 1993.
The year-to-date provision for income taxes in 1993 includes a $1 million
benefit resulting from the Company's adoption of Statement of Financial
Accounting Standards No. 109 which reduced Apache's deferred tax liability.
Liquidity and Capital Resources
Apache's primary needs for cash are for exploration, development and
acquisition of oil and gas properties, repayment of principal and interest on
outstanding debt and payment of dividends. The Company generally funds its
exploration and development activities through internally generated cash flows.
Apache budgets its capital expenditures based upon projected cash flows and
routinely adjusts its capital expenditures in response to changes in oil and
gas prices and corresponding changes in cash flow.
Expenditures for exploration and development increased to $137.3 million for
the first half of 1994 from $103 million during the comparable period last
year. In the first
9
<PAGE> 11
six months of 1994, Apache completed 114 of 136 gross domestic wells as
producers, while the Company completed 84 of 115 gross domestic wells as
producers in the first half of 1993. Apache has been actively drilling in the
Midcontinent region, the Permian Basin, the Gulf of Mexico and the Rocky
Mountain region of the United States. Internationally, the Company continued
with developmental drilling on the Harriet prospect in Australia and a
discovery in the Bohai Bay, People's Republic of China. Further evaluation is
necessary to determine commercial potential of the discovery offshore China.
International exploration and development expenditures totaled $11.2 million in
the first half of 1994 compared to $7.2 million in 1993. Apache's annual
expenditures for exploration and development are expected to total
approximately $250 million.
Acquisitions during the first half of 1994 totaled $27 million as compared to
$44.1 million for the same period of 1993. This year's acquisitions included
$16 million for interests in offshore properties.
Other capital expenditures for the first half of 1994 totaled $4.2 million.
The 1993 expenditures include the purchase of NGC's interest in the western
Oklahoma gas system which was subsequently sold in a transaction discussed
below.
The purchase of HERC stock largely reflects cash payments for HERC common stock
which had not been tendered to Apache as of December 31, 1993. The purchase of
the remaining shares was accrued as a cost of the HERC acquisition in 1993.
Capital Resources
Apache's primary capital resources are net cash provided by operating
activities, unused borrowing capacity under the Company's revolving bank credit
facility and proceeds from the sale of non-strategic assets. Net cash provided
by operating activities totaled $119 million for the first half of 1994
compared to $80 million for the same period in 1993. The 49 percent increase
in cash flows largely reflects increased oil and gas production.
During the second quarter of 1994, Apache amended its bank credit facility,
increasing the amount committed under the revolving portion of the facility
from $400 million to $700 million, subject to borrowing base availability.
Apache's current borrowing base increased from $400 million to $450 million as
a result of the amendment and subsequent borrowing base redetermination. As of
June 30, 1994, Apache had $328 million outstanding on its bank credit facility.
The $122 million in unused availability and increased commitment is for general
corporate purposes and potential acquisitions.
Also during the second quarter, Apache terminated a bank facility held in the
name of HERC and amended and restated the debt agreement of HERC's wholly-owned
subsidiary, Hadson Energy Limited (HEL). The HEL amendment provided for a rate
reduction from 1 1/8 percent above the discount rate of U.S. dollar bankers'
acceptances to 5/8 percent above the bankers' acceptance rate. The initial
borrowing base was established at $25 million, of which $20 million was
outstanding at June 30, 1994. As with the previous agreement, the HEL credit
facility is not guaranteed by Apache.
Total outstanding long-term debt increased to $527.5 million at June 30, 1994,
up $65.5 million from the end of 1993. Apache drew on its bank facility to
fund the acquisitions closed during the first six months of 1994, purchase the
HERC shares tendered to Apache in 1994 and fund working capital requirements.
In March 1993, Apache and NGC completed the sale of their respective interests
in a gas gathering system in western Oklahoma. Apache received gross cash
proceeds of $32.2 million in the transaction, approximately $16.4 million of
which was attributable to NGC's interest in the system. The sale price
approximated the net book value of the interests sold.
Also in March 1993, Apache completed the public offering of approximately 5.8
million shares of common stock for net proceeds of $131.8 million. In April
1993, Apache applied the proceeds of the equity offering to repay all
outstanding bank debt under the revolving bank credit. The debt was redrawn in
subsequent periods to fund acquisitions completed during 1993.
10
<PAGE> 12
Liquidity
The Company had $16.7 million in cash equivalents on hand at June 30, 1994,
down slightly from the $17.1 million at the end of 1993. The Company's ratio
of current assets to current liabilities at quarter-end 1994 of .9:1 was
improved from year-end 1993 when the ratio was .7:1.
Management believes that cash on hand, net cash provided by operating
activities and unused available borrowing capacity under the revolving credit
facility of $122 million at June 30, 1994 will be adequate to meet future
liquidity needs for the next two fiscal years, including satisfying the
Company's financial obligations and funding exploration and development
operations and routine acquisitions.
Future Trends
Apache intends to continue increasing production and reserves through drilling
and property acquisitions. Spot market natural gas prices remain volatile and
continue to behave independent of historical seasonal patterns. Spot market
oil prices, which are especially vulnerable to complex and unpredictable
political and economic forces, have improved since the end of the first quarter
1994, but are expected to remain volatile.
11
<PAGE> 13
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The information set forth in Note 8 to the Consolidated Financial Statements
contained in the registrant's Form 10-K for the year ended December 31, 1993
(filed with the SEC on March 28, 1994) is incorporated herein by reference.
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
a) The Company's annual meeting of shareholders was held in Houston,
Texas at 10:00 a.m. local time, on Thursday, May 5, 1994.
b) Proxies for the meeting were solicited pursuant to Regulation 14
under the Securities Exchange Act of 1934, as amended. There was
no solicitation in opposition to the nominees for election as
directors as listed in the proxy statement and all nominees were
elected.
c) Out of a total of 61,223,553 shares of the Company's common stock
outstanding and entitled to vote, 53,407,177 shares were present
at the meeting in person or by proxy, representing approximately
87 percent.
At the meeting four directors were elected to serve on the
Company's board of directors until the 1997 annual meeting of
shareholders. The vote tabulation with respect to each nominee
was as follows:
Nominee For Authority Withheld
------------------- ---------- ------------------
Frederick M. Bohen 52,982,273 424,904
Virgil B. Day 52,970,951 436,226
Stanley K. Hathaway 52,981,394 425,783
Joseph A. Rice 52,981,414 425,763
ITEM 5. OTHER INFORMATION
None.
12
<PAGE> 14
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Second Amended and Restated Credit Agreement, dated as of April
30, 1994, among Apache Corporation, the Lenders named therein,
and the First National Bank of Chicago and Chemical Bank, as
Agents.
10.2 Amended and Restated Acceptance Agreement, dated as of May 26,
1994, by and between Hadson Energy Limited and Bank of Montreal,
as Agent, and the Other Banks which may become Parties thereto.
11.1 Computation of earnings per share.
(b) Reports filed on Form 8-K.
March 1, 1994 - Item 5. Other Events - Information relating to the
indemnification of directors and officers and certain undertakings
provided for incorporation by reference into Apache's active registration
statements.
April 28, 1994 - Item 5. Other Events - Resignation of William J. Johnson
as president and chief operating officer and management's recommendation
of G. Steven Farris as his successor.
13
<PAGE> 15
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
APACHE CORPORATION
Dated: August 12, 1994 /s/ MARK A. JACKSON
Mark A. Jackson
Vice President, Finance
Dated: August 12, 1994 /s/ R. KENT SAMUEL
R. Kent Samuel
Controller and Chief Accounting Officer
<PAGE> 16
INDEX TO EXHIBITS
Exhibit
Number
- - -------
10.1 Second Amended and Restated Credit Agreement, dated as of April
30, 1994, among Apache Corporation, the Lenders named therein,
and the First National Bank of Chicago and Chemical Bank, as
Agents.
10.2 Amended and Restated Acceptance Agreement, dated as of May 26,
1994, by and between Hadson Energy Limited and Bank of Montreal,
as Agent, and the Other Banks which may become Parties thereto.
11.1 Computation of earnings per share.
<PAGE> 1
Exhibit 10.1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 30, 1994
among
APACHE CORPORATION,
and
The Lenders named herein,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Collateral Agent
and
CHEMICAL BANK,
as Co-Agent
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND TERMS OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.3. Cross References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.4. Accounting and Financial Determination . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE II THE FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.1. The Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(a) Description of Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(b) Facility Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(c) All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Revolving Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(e) Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2. Extension of Termination Date and of Commitment . . . . . . . . . . . . . . . . . . . . 20
2.3. Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Initial Borrowing Base; Scheduled Semi-Annual and
Discretionary Determinations of the Borrowing
Base; Procedures for Determination of the Borrowing Base . . . . . . . . . . . . 22
(b) Determination of Borrowing Base at Request of Company . . . . . . . . . . . . . 22
(c) Criteria for Determination of the Borrowing Base . . . . . . . . . . . . . . . . 23
(d) Redeterminations of Borrowing Base Upon Material Adverse Effect . . . . . . . . 23
(e) Redetermination of Borrowing Base Upon Material Changes . . . . . . . . . . . . 23
(f) Reduction of Borrowing Base Upon Sales of Certain Properties . . . . . . . . . . 23
(g) Title Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.4. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5. Facility Fee; Other Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Participation Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) Agents' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III BORROWING; SELECTING RATE OPTIONS; ETC. . . . . . . . . . . . . . . . . . . . . . . . . 25
3.1. Method of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.3. Method of Selecting Rate Options and Interest Periods for Revolving Loans . . . . . . . 25
3.4. Competitive Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Competitive Bid Quote Request . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Invitation for Competitive Bid Quotes . . . . . . . . . . . . . . . . . . . . . 26
(c) Submission and Contents of Competitive Bid Quotes . . . . . . . . . . . . . . . 27
(d) Notice to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(e) Acceptance and Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . 28
(f) Allocation by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . 28
3.5. Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.6. Continuation and Conversion Elections . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.7. Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.8. Rate after Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.9. Interest Payment Dates; Determination of Interest and Fees . . . . . . . . . . . . . . 30
(a) Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Determination of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . 30
3.10. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions . . . . 30
3.11. Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV MANDATORY PAYMENTS; REDUCTIONS OF COMMITMENTS; ETC. . . . . . . . . . . . . . . . . . . 31
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4.1. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(a) Mandatory Prepayment on Account of Excess of Outstandings Over
Aggregate Available Commitment . . . . . . . . . . . . . . . . . . . . . . . . 31
(b) Mandatory Prepayment on Account of Sales of Certain Properties
Included in the Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . 31
(c) (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(d) Mandatory Prepayment on Account of Extraordinary Sales of Properties . . . . . . 31
(e) Application of Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 32
4.3. Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.4. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.5. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.6. Voluntary Reductions of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.7. Voluntary and Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VI CHANGE IN CIRCUMSTANCES; TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.2. Availability of Rate Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.3. Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.4. Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.5. Increased Capital Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.7. Lender Statements; Survival of Indemnity; Substitution of Lenders;
Limitation on Claims by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.8. Withholding Tax Exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VII CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1. Conditions of Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2. Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.3. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.4. Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VIII REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.1. Corporate Existence and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.3. No Conflict; Government Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.5. Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.7. Litigation and Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.8. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.10. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.11. Regulation-U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.12. Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.13. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.14. Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.15. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.16. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.17. Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.18. Post-Retirement Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.20. Environmental Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE IX AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.1. Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.2. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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9.3. Notice of Default, Unmatured Default, Litigation and Material Adverse Effect . . . . . 44
9.4. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.8. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.10. Operation of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.11. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.12. Environmental Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.13. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.14. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.15. Further Assurances; Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(a) Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(b) Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.16. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE X FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.1. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.2. Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.3. Ratio of EBITDDA to Consolidated Interest . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XI NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.1. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
11.2. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.3. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
11.4. Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.5. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.6. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.7. Restricted Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(b) (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.8. Rental Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.10. Negative Pledges, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.11. Regulation U Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.12. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.13. Hedging Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.14. Approval of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE XII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.1. Breach of Warranties and Misleading Statements . . . . . . . . . . . . . . . . . . . . 54
12.2. Nonpayment of Notes, Fees and other Obligations . . . . . . . . . . . . . . . . . . . . 54
12.3. Breach of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.4. (Intentionally Omitted.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.5. Non-Compliance with this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.6. Cross-Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.7. Voluntary Dissolution and Insolvency Proceedings and Actions . . . . . . . . . . . . . 54
12.8. Involuntary Insolvency Proceedings or Dissolution . . . . . . . . . . . . . . . . . . . 55
12.9. Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.10. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.11. Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.12. Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.13. Other Defaults Under Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.14. Failure of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.15. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII ACCELERATION, WAIVERS, AMENDMENTS, REMEDIES; RELEASES . . . . . . . . . . . . . . . . . 56
13.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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13.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13.3. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
13.4. Rights and Remedies Upon Classification as a Highly Leveraged Transaction . . . . . . . 57
13.5. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE XIV GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14.1. Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14.2. Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
14.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
14.5. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
14.6. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
14.7. Reimbursement of Costs and Expenses; Indemnification . . . . . . . . . . . . . . . . . 58
(a) Reimbursement of Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . 58
(b) Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
14.8. Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.9. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.10. Nonliability of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.11. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
14.12. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
14.13. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE XV THE ADMINISTRATIVE AGENT, THE CO-AGENT AND THE COLLATERAL AGENT . . . . . . . . . . . . 60
15.1. Appointment of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
15.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
15.3. General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
15.4. No Responsibility for Loans, Recitals, etc . . . . . . . . . . . . . . . . . . . . . . 61
15.5. Action on Instructions of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.6. Employment of Agents and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.7. Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.8. Reimbursement and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.10. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
15.11. Certain Successor Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE XVI SETOFF; RATABLE PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
16.1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
16.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE XVII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . . . . . . . . . . . . 63
17.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
17.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
17.3. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
17.4. Dissemination of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
17.5. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE XVIII NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
18.1. Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
18.2. Change of Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XIX COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE XX NO ORAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
iv
<PAGE> 6
EXHIBIT A-1 REVOLVING NOTE (Revolving Loans)
EXHIBIT A-2 COMPETITIVE BID NOTE (Competitive Bid Loans)
EXHIBIT B FORM OF LEGAL OPINION
EXHIBIT C APACHE CORPORATION COMPLIANCE CERTIFICATE
EXHIBIT D ASSIGNMENT AGREEMENT
EXHIBIT E COMPETITIVE BID QUOTE REQUEST
EXHIBIT F CONTINUATION/CONVERSION NOTICE
EXHIBIT G MAYER, BROWN & PLATT OPINION
EXHIBIT H INVITATION FOR COMPETITIVE BID QUOTES
EXHIBIT I CONSENT, ACKNOWLEDGEMENT AND AGREEMENT
EXHIBIT J CONFIDENTIALITY AGREEMENT
EXHIBIT K COMPETITIVE BID QUOTE
SCHEDULE A COMMITMENTS UNDER APRIL 1992 AGREEMENT
SCHEDULE 8.8 SUBSIDIARIES
SCHEDULE 11.1 INDEBTEDNESS; LIENS
SCHEDULE 11.12 INVESTMENTS
v
<PAGE> 7
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement, dated as of April
30, 1994, is among Apache Corporation, a Delaware corporation (the "Company"),
the various commercial lending institutions as are or may become parties hereto
(the "Lenders"), The First National Bank of Chicago, as Administrative Agent
and Collateral Agent and Chemical Bank, as Co-Agent.
RECITALS:
1. The Company, the Lenders, the Administrative Agent, the
Collateral Agent and the Co-Agent (each as hereinafter defined) have heretofore
entered into that certain Reducing Revolving Credit and Term Loan Agreement,
dated as of July 1, 1991, that certain Amendment No. 1, dated as of November 1,
1991 and that certain Amendment No. 2, dated as of December 1, 1991 (as so
amended, the "July 1991 Agreement"), pursuant to which the Lenders agreed to
make Term Loans and Revolving Loans (each as defined in the July 1991 Agreement
and herein called, respectively, the "1991 Term Loans" and the "1991 Revolving
Loans").
2. In order to restructure the indebtedness incurred by the
Company to the Lenders pursuant to the July 1991 Agreement, the Company, the
Lenders, the Administrative Agent, the Collateral Agent and the Co-Agent have
entered into that certain Amended and Restated Credit Agreement, dated as of
April 15, 1992 (the "Original April 1992 Agreement"), pursuant to which the
Lenders agreed to make Revolving Loans (as defined in the Original April 1992
Agreement and herein called "1992 Revolving Loans"), each in an aggregate
amount not to exceed the amount set forth beside the name of each Lender on
Schedule A.
3. The Original April 1992 Agreement has been amended by the
first amendment thereto, dated July 21, 1992, the second amendment thereto,
dated December 31, 1992, the Third Amendment to Amended and Restated Credit
Agreement, dated as of April 30, 1993, and the Fourth Amendment to Amended and
Restated Credit Agreement, dated as of July 13, 1993 (the Original April 1992
Agreement, as so amended, herein called the "April 1992 Agreement").
4. On the terms and subject to the conditions of this
Agreement, except as described in Section 9.16, all 1992 Revolving Loans of the
Lenders to the Company outstanding on the Effective Date (as hereinafter
defined) shall, on the Effective Date, be renewed, restated, extended and
converted into (but shall not be deemed to be repaid) Revolving Loans under
this Agreement.
5. The Company, the Lenders, the Administrative Agent, the
Co-Agent and the Collateral Agent hereby amend the April 1992 Agreement and
restate the April 1992 Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS AND TERMS OF CONSTRUCTION
1.1. Definitions. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and the plural forms
thereof):
"Accepting Lender" is defined in Section 2.2.
"Acknowledgment of Guaranty" means an acknowledgment to guaranty,
substantially in the form of Exhibit I hereto, dated the Effective Date, duly
executed and delivered to the Administrative Agent by MW Petroleum.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Company or any of the Subsidiaries (i) acquires any going business or all or
substantially all of the
<PAGE> 8
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise or (ii) directly or indirectly acquires (in one transaction
or as the most recent transaction in a series of transactions) at least a
majority (in number of votes) of the securities of a corporation which have
ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency).
"Administrative Agent" means The First National Bank of Chicago in its
capacity as administrative agent for the Lenders pursuant to Article XV, and
not in its individual capacity as a Lender or in its capacity as Collateral
Agent, and any successor Administrative Agent appointed pursuant to Article XV.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders or any of them to the Company
on the same Borrowing Date, at the same Rate Option (or on the same interest
basis in the case of a Competitive Bid Loan) and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any Person directly or indirectly
controlling, controlled by or under direct or indirect common control of such
Person, but shall not, in the case of the Company or any Subsidiary, include
(except for the purposes of Sections 11.9 and 15.9) HEL or Subsidiaries of
HERC. A Person shall be deemed to control another Person if the controlling
Person owns directly or indirectly 20% or more of any class of voting
securities of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or
otherwise.
"Agents" means each of the Co-Agent, the Administrative Agent and the
Collateral Agent.
"Aggregate Available Commitment" means, as of the time a determination
thereof is to be made, the lesser of (x) the Aggregate Commitment, and (y) the
Borrowing Base.
"Aggregate Commitment" means, as of the time a determination thereof
is to be made, the sum of the Commitments of all the Lenders hereunder, being
$700,000,000 as of the date hereof, and as reduced from time to time after the
date hereof pursuant to Sections 4.6 and 13.1.
"Aggregate Unavailable Commitment" means, as of the time a
determination thereof is to be made, the difference between (x) the Aggregate
Commitment and (y) the Borrowing Base.
"Agreement" means this Second Amended and Restated Credit Agreement,
as it may be amended, supplemented, restated or otherwise modified and in
effect from time to time.
"Agreement Accounting Principles" means, on any date, those generally
accepted accounting principles applied in preparing the financial statements
referred to in Section 8.4.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Advances, a fluctuating rate of interest per annum equal to the
higher of (i) the Corporate Base Rate, and (ii) the Federal Funds Effective
Rate most recently determined by the Administrative Agent plus 1/2%. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Company
and the Lenders of changes in the Alternate Base Rate.
"Alternate Base Rate Spread" means the applicable rate per annum set
forth below:
2
<PAGE> 9
<TABLE>
<CAPTION>
Rating of the Company's Long-
Term Debt by 2 or Alternate Base
Debt/Capitalization Ratio more Rating Agencies Rate Spread
<S> <C> <C>
Greater than or equal to .60 to 1.0 Lower than BBB-/Baa3 .50%
Greater than or equal to .60 to 1.0 BBB-/Baa3 .375%
Greater than or equal to .60 to 1.0 BBB/Baa2 or higher .125%
Greater than or equal to .55 to 1.0 but Lower than BBB-/Baa3 .375%
less than .60 to 1.0
Greater than or equal to .55 to 1.0 but BBB-/Baa3 or higher .125%
less than .60 to 1
Greater than or equal to .50 to 1 but less Lower than BBB-/Baa3 0
than .55 to 1
Greater than or equal to .50 to 1.0 but BBB-/Baa3 or higher -.125%
less than .55 to 1.0
Less than .50 to 1.0 Not applicable -.25%
</TABLE>
"Anniversary Date" means any April 30, with the first such date being
April 30, 1995.
"Annual Certificate of Extension" means a certificate of the Company,
executed by an Authorized Officer and delivered to the Administrative Agent,
which requests an extension of the then scheduled Termination Date pursuant to
Section 2.2.
"Approved Engineers" means Ryder Scott Company Petroleum Engineers or
Netherland, Sewell & Associates, Inc. or other independent petroleum engineers
of recognized standing and experience in the evaluation of hydrocarbon reserves
who the Administrative Agent, the Co-Agent and the Required Lenders determine
to be acceptable.
"Approved Engineers' Report" means a report prepared (except to the
extent set forth below) and certified by the Approved Engineers and furnished
by the Company to the Lenders pursuant to Section 9.1(d) or (e) which shall set
forth (i) the estimated volume and rate of production of Hydrocarbons which may
reasonably be expected to be produced from Proved Reserves for each Property,
(ii) a computation of the projected gross revenues from Proved Reserves
attributable to each Property, (iii) a computation of the future net revenues
for each Property, showing separately net revenues from Proved Developed
Producing Reserves, Proved Developed Non-Producing Reserves and Proved
Undeveloped Reserves, and (iv) projections as to the amount of Proved Reserves
for each Property, showing separately Proved Developed Producing Reserves,
Proved Developed Non-Producing Reserves and Proved Undeveloped Reserves;
provided, that such Properties shall not include Properties the subject of
Limited Recourse Indebtedness permitted by Section 11.1 or Properties in which
a Lien has been granted pursuant to the facility described in item 1 of
Schedule 11.1. The Approved Engineers' Report shall be prepared using economic
parameters (including pricing, inflation and discount rate) provided by the
Administrative Agent and the Co-Agent and in accordance with established
criteria generally accepted in the oil and gas industry for use by independent
petroleum engineers in making determinations and appraisals of hydrocarbon
reserves, including assumptions, estimates and projections as to production
expenses, availability of reserves and rates of production; provided, however,
that in preparing such report, the Approved Engineers need only make an
independent evaluation of Properties
3
<PAGE> 10
comprising not less than (x) 70% in value of the Properties included in the
most recent Approved Engineers' Report and (y) 80% in value of any Properties
not included in the most recent Approved Engineers' Report, and may review the
evaluation by the Company's petroleum engineers in accordance with the
foregoing criteria of the remainder of the Properties. The Administrative
Agent and the Co-Agent may, in their sole discretion after consulting with the
Company, require modification of any assumption, projection or estimate which
they (acting reasonably) find unacceptable.
"April 1992 Agreement" is defined in Recital 3.
"Assignment Agreement" means an agreement executed by an assignor
Lender and an assignee Lender pursuant to Section 17.3 substantially in the
form of Exhibit D hereto.
"Authorized Officer" means any officer of the Company, acting singly,
specified as such to the Administrative Agent in writing by the Vice
President/Treasurer.
"Borrowing Base" means the Borrowing Base then in effect calculated
and established in accordance with the terms and provisions of Section 2.3.
"Borrowing Date" means any Business Day on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 3.3.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day other than Saturday or Sunday on
which banks are open for business in Chicago and New York and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day other than Saturday or Sunday on which banks are
open for business in Chicago and New York.
"Capitalized Lease" means, with any respect to a Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" means, with respect to a Person, the
amount of the obligations of such Person under Capitalized Leases which would
be shown as a liability on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more
than one year after such time, issued or guaranteed by the United
States Government;
(b) commercial paper, maturing not more than nine
months from the date of issue, which is issued by any Agent or any
Agent's holding company, or by
(i) a corporation (other than the Company
or an Affiliate of the Company) organized under the laws of
any state of the United States or of the District of
Columbia and rated A-1 by Standard & Poor's Corporation or
P-1 by Moody's Investors Service, Inc., or
(ii) any Lender (or its holding company)
which has (or which at the time is a subsidiary of a
holding company which has) a Qualified Long Term Rating;
(c) any certificate or deposit or banker's acceptance,
maturing not more than one year after such time, which is issued by
any Agent or any Agent's holding company, or by either
4
<PAGE> 11
(i) a commercial banking institution that
is a member of the Federal Reserve System and has a
combined capital and surplus and undivided profits of not
less than $500,000,000, which has (or which at the time is
a subsidiary of a holding company which has) a Qualified
Long Term Rating, or
(ii) any Lender which has (or which is a
subsidiary of a holding company which has) a Qualified Long
Term Rating; or
(d) any repurchase agreement entered into with any
Agent or any Lender (or other commercial banking institution of the
stature referred to in clause (c)(i)) which
(i) is secured by a fully perfected
security interest in any obligation of the type described
in any of clauses (a) through (c); and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than 100%
of the repurchase obligation of such Lender or Agent (or
other commercial banking institution) thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System List.
"Change in Control" means:
(a) the failure by the Company to own, free
and clear of all Liens or encumbrances, 100% of the
outstanding capital stock of MW Petroleum on a fully
diluted basis or the failure of MW Petroleum to own, free
and clear of all Liens or encumbrances, 100% of the
outstanding capital stock of MWJR on a fully diluted basis,
except as a result of the merger of MW Petroleum and MWJR
into the Company pursuant to Section 9.15; or
(b) any Unrelated Person or any Unrelated
Persons acting together which would constitute a Group,
together with any Affiliates or Related Persons thereof (in
each case also constituting Unrelated Persons), shall at
any time either (i) Beneficially Own more than 20% of the
aggregate voting power of all classes of Voting Stock of
the Company or (ii) succeed in having sufficient of its or
their nominees elected to the Board of Directors of the
Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company
after such election who is an Affiliate or Related Person
of such Person or Group, shall constitute a majority of the
Board of Directors of the Company. As used herein (A)
"Beneficially Own" means "beneficially own" as defined in
Rule 13d-3 of the Securities Exchange Act of 1934, as
amended, or any successor provision thereto; (B) "Group"
means a "group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended; (C) "Unrelated
Person" means at any time any Person other than the Company
or any Subsidiary and other than any trust for any employee
benefit plan of the Company or any Subsidiary of the
Company; (D) "Related Person" of any Person shall mean any
other Person owning (1) 5% or more of the outstanding
common stock of such Person or (2) 5% or more of the Voting
Stock of such Person; and (E) "Voting Stock" of any Person
shall mean capital stock of such Person which ordinarily
has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at
all times or only so long as no senior class of securities
has such voting power by reason of any contingency.
5
<PAGE> 12
"Chemical" means Chemical Bank in its individual capacity and its
successors.
"Co-Agent" means Chemical Bank in its capacity as co-agent for the
Lenders pursuant to Article XV, and not in its individual capacity as a Lender
and any successor Co-Agent appointed pursuant to Article XV.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified and in effect from time to time.
"Collateral Agent" means The First National Bank of Chicago in its
capacity as collateral agent for the Lenders pursuant to Article XV, and not in
its individual capacity as a Lender or in its capacity as Administrative Agent,
and any successor Collateral Agent appointed pursuant to Article XV.
"Collateral Documents" means, collectively, (a) the Partnership Pledge
and Security Agreement, (b) the Stock Pledge and Security Agreement, (c) the
Security Agreement and Financing Statement, (d) the MW Petroleum Stock Pledge,
and (e) any Guaranty, together with any exhibits, schedules or other
attachments to such documents and any financing statements relating thereto, as
such documents, exhibits, schedules, attachments or financing statements may be
amended, supplemented, restated or otherwise modified and in effect from time
to time.
"Commitment" means, with respect to each Lender, the obligation of
such Lender to make Loans not exceeding the amount set forth as its Commitment
opposite its signature below or in the relevant Assignment Agreement, as such
amount may be modified from time to time pursuant to the provisions of this
Agreement, including any Assignment Agreement executed by such Lender and its
Assignee Lender and delivered pursuant to Section 17.3 and any reduction
pursuant to Sections 4.6, or 13.1; it being understood, however, that a change
in the Borrowing Base does not constitute a modification of any Commitment.
"Company" is defined in the Preamble.
"Company's Engineers' Report" means a report prepared and certified by
the Company's petroleum engineers and furnished by the Company to the Lenders
pursuant to Section 9.1(f) which shall set forth (i) the estimated volume and
rate of production of Hydrocarbons which may reasonably be expected to be
produced from Proved Reserves for each Property, (ii) a computation of the
projected gross revenues from Proved Reserves attributable to each Property,
(iii) a computation of the future net revenues for each Property, showing
separately net revenues from Proved Developed Producing Reserves, Proved
Developed Non-Producing Reserves and Proved Undeveloped Reserves and (iv)
projections as to the amount of Proved Reserves for each Property, showing
separately Proved Developed Producing Reserves, Proved Developed Non-Producing
Reserves and Proved Undeveloped Reserves; provided, that such Properties shall
not include Properties the subject of Limited Recourse Indebtedness permitted
by Section 11.1 and Properties on which a Lien has been granted pursuant to the
facility described in item 1 of Schedule 11.1. The Company's Engineers' Report
shall be prepared using economic parameters (including pricing, inflation and
discount rate) provided by the Administrative Agent and the Co-Agent and in
accordance with established criteria generally accepted in the oil and gas
industry for use by independent petroleum engineers in making determinations
and appraisals of hydrocarbon reserves, including assumptions, estimates and
projections as to production expenses, availability of reserves and rates of
production. The Administrative Agent and the Co-Agent may, in their sole
discretion after consulting with the Company, require modification of any
assumption, projection or estimate which they (acting reasonably) find
unacceptable.
"Competitive Bid Advance" means a borrowing hereunder consisting of
the aggregate amount of the several Competitive Bid Loans made by some or all
of the Lenders to the Company at the same time, having the same Stated Maturity
Date and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 3.4(e).
6
<PAGE> 13
"Competitive Bid Loan" means, with respect to a Lender, a competitive
bid loan made by such Lender pursuant to Section 2.1 and Section 3.4 as the
result of a Competitive Bid Borrowing Notice from the Company requesting a
Competitive Bid Advance.
"Competitive Bid Margin" means the margin above or below the
applicable Eurodollar Base Rate or Alternate Base Rate offered for a Bid Loan,
expressed as a percentage (rounded to the nearest 1/16 of 1%) to be added or
subtracted from the Eurodollar Base Rate or the Alternate Base Rate, as
applicable.
"Competitive Bid Note" means a promissory note in substantially the
form of Exhibit "A-2" hereto, with applicable insertions, duly executed and
delivered to the Administrative Agent by the Company for the account of a
Lender and payable to the order of such Lender, including any amendment,
modification, renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit K hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 3.4(c).
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit E hereto completed and delivered by the
Company to the Administrative Agent in accordance with Section 3.4(a).
"Consolidated Interest Expense" means, for any period for which a
determination thereof is to be made, total interest expense, whether paid or
accrued (but excluding that attributable to Capitalized Leases), of the Company
and the Consolidated Subsidiaries on a consolidated basis including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing.
"Consolidated Net Income" means, for any period for which a
determination thereof is to be made, the net income (or loss) after taxes of
the Company and the Consolidated Subsidiaries on a consolidated basis for such
period taken as a single accounting period; provided that there shall be
excluded the income (or loss) of any Affiliate of the Company or other Person
(other than a Consolidated Subsidiary of the Company) in which any Person
(other than the Company or any of the Consolidated Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of the Consolidated
Subsidiaries by such Affiliate or other Person during such period.
"Consolidated Subsidiary" means, as of the time a determination
thereof is to be made, any Subsidiary or other entity the accounts of which
would be consolidated with those of the Company in its consolidated financial
statements if such statements were prepared as of such date.
"Consolidated Tangible Net Worth" means, as of the time a
determination thereof is to be made, the consolidated stockholders' equity of
the Company and the Consolidated Subsidiaries, less their consolidated
intangible assets, all determined as of such date in accordance with Agreement
Accounting Principles.
"Contingent Obligation" means, with respect to any Person as of the
time a determination thereof is to be made, any agreement, undertaking or
arrangement by which such Person guarantees, endorses or otherwise becomes or
is contingently liable (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
invest in, a debtor, or otherwise to assure a creditor against loss) in respect
of any Indebtedness, obligation or other liability of itself or any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares
or partnership interests of any other Person, or is liable in respect of the
obligations of a partnership of which such Person is a partner.
"Continuation/Conversion Notice" means a notice by means of telecopy
or telephone (confirmed in writing promptly thereafter if by telephone) of
7
<PAGE> 14
continuation or conversion, which notice shall specify the principal amount to
be continued or converted, the date of such continuation or conversion, the
type of Revolving Loan and, if such Revolving Loan is to be a Revolving
Eurodollar Loan, the Interest Period, which notice, when delivered by telecopy
or confirmed in writing, shall be substantially in the form of Exhibit "F" and
executed on behalf of the Company by an Authorized Officer.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company or any Subsidiary, are treated
as a single employer under Section 414(b) or 414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"Debt" means all Indebtedness of the type referred to in clauses (i),
(ii), (iii), (iv) and (v) of the definition of Indebtedness.
"Debt/Capitalization Ratio" means, as of the time a determination
thereof is to be made, the ratio expressed as a decimal of (x) the aggregate
outstanding amount of the consolidated Debt of the Company and its Consolidated
Subsidiaries, to (y) the sum of the consolidated stockholders' equity of the
Company and its Consolidated Subsidiaries plus the aggregate outstanding amount
of the consolidated Debt of the Company and its Consolidated Subsidiaries;
provided, however, that for purposes of the definitions of Alternate Base Rate
Spread and Eurodollar Spread and for purposes of Section 2.5(a) the
Debt/Capitalization Ratio on each day commencing on the forty-fifth (45th) day
following the end of a calendar quarter shall be deemed to be the lesser of (a)
the Debt/Capitalization Ratio as of the end of such calendar quarter and (b)
the Debt/Capitalization Ratio as of the final day of the month following the
end of such calendar quarter, in each case based on a certificate received by
the Agents and the Lenders from the vice president and treasurer of the Company
pursuant to Section 9.1(k).
"Declining Lender" is defined in Section 2.2.
"Default" means an event described in Article XII.
"Drilling Partnership" means each general and limited partnership in
existence and which has not been dissolved by action of the general partner at
the Effective Date (other than Apache Offshore Investment Partnership) whose
sole general partner and managing partner, if any, is the Company, and which is
engaged principally in the business of exploration for, and the production of,
oil and gas.
"EBITDDA" means, for any period for which a determination thereof is
to be made, without duplication, the sum of the amounts for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) depreciation
expense and depletion expense, (iv) amortization expense, (v) federal and state
taxes, (vi) other non-cash charges and expenses and (vii) any losses arising
outside of the ordinary course of business which have been included in the
determination of Consolidated Net Income; less any gains arising outside of the
ordinary course of business which have been included in the determination of
Consolidated Net Income, all as determined on a consolidated basis for the
Company and the Consolidated Subsidiaries.
"Effective Date" means a date agreed upon by the Company, the
Co-Agent, the Collateral Agent and the Administrative Agent as the date on
which the conditions precedent set forth in Section 7.1 of this Agreement have
been satisfied.
"Environmental Law" means any federal, state, or local statute, or
rule or regulation promulgated thereunder, any judicial or administrative order
or judgment or written administrative request to which the Company or any
Subsidiary is party or which are applicable to the Company or any Subsidiary or
the Properties (whether or not by consent), and any provision or condition of
any
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<PAGE> 15
permit, license or other governmental operating authorization, relating to (A)
protection of the environment, persons or the public welfare from actual or
potential exposure for the effects of exposure to any actual or potential
release, discharge, spill or emission (whether past or present) of, or
regarding the manufacture, processing, production, gathering, transportation,
importation, use, treatment, storage or disposal of, any chemical, raw
material, pollutant, contaminant or toxic, corrosive, hazardous, or non-
hazardous substance or waste, including petroleum; or (B) occupational or
public health or safety.
"Effectiveness Notice" means a notice and certificate of the Company
properly executed by an Authorized Officer addressed to the Lenders and
delivered to the Administrative Agent, in sufficient number of counterparts to
provide one for each Lender, whereby the Company certifies satisfaction of all
the conditions precedent to the effectiveness of this Agreement under Section
7.1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 3.4.
"Eurodollar Base Rate" means, with respect to a Eurodollar Revolving
Advance or a Eurodollar Bid Rate Advance for the relevant Interest Period, the
rate determined by the Administrative Agent to be the arithmetic average of the
rates reported to the Administrative Agent by each Reference Lender as the rate
at which deposits in U.S. dollars are offered by such Reference Lender to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of such Reference Lender's relevant Eurodollar
Revolving Loan or, in the case of a Eurodollar Bid Rate Loan, the amount of the
Eurodollar Bid Rate Loan requested by the Company, and having a maturity
approximately equal to such Interest Period. If any Reference Lender fails to
provide such quotation to the Administrative Agent, then the Administrative
Agent shall determine the Eurodollar Base Rate on the basis of the quotations
of the remaining Reference Lender(s).
"Eurodollar Advance" means a Eurodollar Bid Rate Advance or a
Eurodollar Revolving Advance.
"Eurodollar Bid Rate" means, with respect to a Eurodollar Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (i)
the Eurodollar Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the Company.
"Eurodollar Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan which bears
interest at the Eurodollar Bid Rate.
"Eurodollar Loan" means a Eurodollar Bid Rate Loan or a Eurodollar
Revolving Loan.
"Eurodollar Revolving Advance" means a Revolving Advance which bears
interest at a Eurodollar Rate.
"Eurodollar Revolving Loan" means a Revolving Loan which bears
interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Loan or Advance for each
day during the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurodollar Base Rate applicable to that Interest Period, divided by (b) one
minus the Reserve Requirement (expressed as a decimal) applicable to that
Interest Period, plus (ii) the Eurodollar Spread applicable to that day. The
Eurodollar Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.
9
<PAGE> 16
"Eurodollar Spread" means the applicable rate per annum set forth
below:
<TABLE>
<CAPTION>
Rating of the Company's Long-
Term Debt by 2 or Eurodollar
Debt/Capitalization Ratio more Rating Agencies Spread
<S> <C> <C>
Greater than or equal to .60 to 1 Lower than BBB-/Baa3 1.50%
Greater than or equal to .60 to 1 BBB-/Baa3 1.375%
Greater than or equal to .60 to 1 BBB/Baa2 or higher 1.125%
Greater than or equal to .55 to 1 but less Lower than BBB-/Baa3 1.375%
than .60 to 1
Greater than or equal to .55 to 1 but less BBB-/Baa3 or higher 1.125%
than .60 to 1
Greater than or equal to .50 to 1 but less Lower than BBB-/Baa3 1.00%
than .55 to 1
Greater than or equal to .50 to 1 but less BBB-/Baa3 or higher .875%
than .55 to 1
Greater than or equal to .45 to 1 but less BBB-/Baa3 or lower .625%
than .50 to 1
Greater than or equal to .45 to 1 but less BBB/Baa2 or higher .50%
than .50 to 1
Greater than or equal to .40 to 1 but less BBB-/Baa3 or lower .50%
than .45 to 1
Greater than or equal to .40 to 1 but less BBB/Baa2 or higher .375%
than .45 to 1
Less than .40 to 1.0 Lower than BBB-/Baa3 .50%
Less than .40 to 1.0 BBB-/Baa3 .375%
Less than .40 to 1.0 BBB/Baa2 or higher .25%
</TABLE>
"Federal Funds Effective Rate" means, for any period for which a
determination thereof is made, a fluctuating interest rate per annum equal for
each day during such period to (i) the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the preceding Business Day) by the Federal Reserve
Bank of New York; or (ii) if such rate is not so published for any day which is
a Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) for such day on such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors and assigns.
"Floating Bid Rate" means, with respect to a Floating Bid Rate Loan
made by a given Lender, the sum of (i) the Alternate Base Rate, changing when
and as the Alternate Base Rate changes, and (ii) the Competitive Bid Margin
offered by such Lender and accepted by the Company.
"Floating Bid Rate Advance" means a Competitive Bid Advance which
bears interest at the Floating Bid Rate.
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<PAGE> 17
"Floating Bid Rate Loan" means a Competitive Bid Loan which bears
interest at the Floating Bid Rate.
"Floating Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth the Competitive Bid Margin for Floating Bid Rates pursuant to
Section 3.4.
"Floating Rate Revolving Advance" means a Revolving Advance which
bears interest at the Floating Revolving Rate.
"Floating Rate Revolving Loan" means a Revolving Loan which bears
interest at the Floating Revolving Rate.
"Floating Revolving Rate" means a rate per annum equal to the sum of
the Alternate Base Rate, changing when and as the Alternate Base Rate changes,
plus the Alternate Base Rate Spread, in effect from time to time.
"Guaranty" means that certain Guaranty, dated as of July 1, 1991, by
MW Petroleum Corporation, a Delaware corporation, as assumed by MW Petroleum
pursuant to that certain Assumption Agreement, dated as of December 24, 1991.
"Hazardous Material" means
i. any "hazardous substance", as defined by CERCLA;
ii. any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
iii. any petroleum, crude oil or any fraction thereof;
iv. any hazardous, dangerous or toxic chemical,
material, waste or substance within the meaning of any Environmental
Law;
v. any radioactive material, including any naturally
occurring radioactive material, and any source, special or by-product
material as defined in 42 U.S.C. Section 2011 et. seq., and any
amendments or reauthorizations thereof;
vi. asbestos-containing materials in any form or
condition; or
vii. polychlorinated biphenyls in any form or condition.
"HEL" means Hadson Energy Limited, a Western Australia corporation and
its Subsidiaries.
"HERC" means Hadson Energy Resources Corporation, a Delaware
corporation.
"HLT Notice" is defined in Section 13.4.
"Hydrocarbon Interests" means leasehold and other interests in or
under leases with respect to property located in the United States of America
and any other countries acceptable to the Required Lenders, mineral fee
interests, production sharing contracts, overriding royalty and royalty
interests, net profit interests and production payment interests, insofar and
only insofar as such interests relate to Hydrocarbons located in the United
States of America and any other countries acceptable to the Required Lenders,
including any reserved or residual interests of whatever nature.
"Hydrocarbons" means oil, gas and all other liquid or gaseous
hydrocarbons and all products refined therefrom and all other minerals and
substances including, sulfur, geothermal steam, water, carbon dioxide, helium
and any and all other minerals, ores or substances of value and the products
and proceeds therefrom.
"include" or "including" means including without limiting the
generality of any description preceding such terms, and, for purposes of this
Agreement and
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<PAGE> 18
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to
the matters specifically mentioned.
"Indebtedness" means, with respect to a Person, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of property or services, including obligations payable out of
Hydrocarbon production, other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade, (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds of production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, bonds, debentures,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi)
liabilities under interest rate swap, exchange, collar or cap agreements and
all other agreements or arrangements designed to protect such Person against
fluctuations in interest rates or currency exchange rates, (vii) liabilities
under commodity hedge, commodity swap, exchange, collar or cap agreements,
fixed price agreements and all other agreements or arrangements designed to
protect a person against fluctuations in oil or gas prices, and (viii)
obligations, contingent or otherwise, relative to the amount of all letters of
credit, whether or not drawn, and (ix) all Contingent Obligations of such
Person in respect of any of the foregoing; provided, however, that such term
shall not include any amounts included as deferred credits on the financial
statements of such Person or of a consolidated group including such Person,
determined in accordance with Agreement Accounting Principles.
"Indemnified Person" is defined in Section 14.7.
"Interest Period" means, with respect to a Eurodollar Bid Rate Advance
or a Eurodollar Revolving Advance, a period of one (1), two (2), three (3) or,
subject to availability, six (6) months commencing on a Business Day selected
by the Company pursuant to this Agreement. Such Interest Period shall end on
(but exclude) the day which corresponds numerically to such date one (1), two
(2), three (3) or six (6) months thereafter, provided, however, that if there
is no such numerically corresponding day in such next, second, third or sixth
succeeding month, such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day; provided,
however, that if said next succeeding Business Day falls in the next month,
such Interest Period shall end on the immediately preceding Business Day.
"International" means Apache International, Inc., a Delaware
corporation, Subsidiaries of Apache International, Inc., and Subsidiaries of
the Company which own properties or conduct operations or propose to own
properties or conduct operations exclusively outside of the United States of
America, except for HERC, Subsidiaries of HERC, and HEL.
"Investment" means, with respect to any Person, any loan, advance,
extension of credit (excluding accounts receivable arising in the ordinary
course of business on terms customary in the trade) or contribution of capital
by such Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, notes, debentures or other securities of any other
Person made by such Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit H hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 3.4(b).
"July 1991 Agreement" is defined in Recital 1.
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<PAGE> 19
"Lenders" means the financial institutions listed on the signature
pages of this Agreement and their respective successors and assigns in
accordance with Section 17.3 (including any commercial lending institution
becoming a party hereto pursuant to an Assignment Agreement) or otherwise by
operation of law.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Lender, the Administrative Agent, the Collateral Agent or the
Co-Agent.
"Lien" means any interest in assets or property securing an obligation
owed to, or a claim by, a Person other than the owner of the asset or property,
whether such interest is based on the common law, statute or contract, and
whether such obligation or claim is fixed or contingent, and including any
security interest, mortgage, pledge, lien, claim, charge, encumbrance, contract
for deed, installment sales contract, production payment, lessor's interest
under a Capitalized Lease or analogous instrument, in, of or on any Person's
assets or properties in favor of any other Person.
"Limited Recourse Indebtedness" is defined in Section 11.1.
"Loan" means any of the Revolving Loans and the Competitive Bid Loans.
"Loan Documents" means this Agreement, the Notes, the Collateral
Documents, the Guaranty, the Assignment Agreements, and the agreement with
respect to fees described in Section 2.5(c), together with all exhibits,
schedules and attachments thereto, and all other agreements, documents,
certificates, financing statements and instruments from time to time executed
and delivered pursuant to or in connection with any of the foregoing.
"MW Petroleum" means MW Petroleum Corporation, a Colorado corporation.
"MW Petroleum Stock Pledge" means that certain Stock Pledge and
Security Agreement, dated as of July 1, 1991, by MW Petroleum Corporation, a
Delaware corporation, as assumed by MW Petroleum pursuant to that certain
Assumption Agreement, dated as of December 24, 1991, as amended by the First
Amendment to Stock Pledge and Security Agreement, dated as of April 15, 1992.
"MWJR" means MWJR Petroleum Corporation, a Delaware corporation.
"Material Adverse Effect" means with respect to any matter that such
matter (i) could reasonably be expected to materially and adversely affect the
assets, business, properties, condition (financial or otherwise), prospects, or
results of operations of the Company and its Subsidiaries, taken as a whole, or
the value or condition of the Properties taken as a whole, or the ability of
the Company or any Subsidiary to perform its respective obligations under any
of the Loan Documents or (ii) has been brought by or before any court or
arbitrator or any governmental body, agency or official, and draws into
question or otherwise has or reasonably could be expected to have a material
adverse effect on the validity or enforceability of any material provision of
any Loan Document against any obligor party thereto or the rights, remedies and
benefits available to the Agents and the Lenders under the Loan Documents.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement to which the Company or any member of the Controlled Group
is a party and to which more than one employer is obligated to make
contributions.
"1992 Revolving Loans" is defined in Recital 2.
"1994 Engineers' Report" means those certain engineering reports of
the Company's engineers, Ryder Scott Company Petroleum Engineers, dated as of
March 8, 1994, with respect to the Properties copies of which have been
delivered to each of the Lenders.
"Note" means any Revolving Note or any Competitive Bid Note.
"Notice of Assignment" is defined in Section 17.3(b).
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<PAGE> 20
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid facility fees, and all other
obligations of the Company or any Subsidiary to any Lender, the Co-Agent, the
Administrative Agent or the Collateral Agent, whether or not contingent,
arising under or in connection with any of the Loan Documents, and all
obligations in respect of any interest rate swap or interest rate cap or collar
agreement or other interest rate hedging agreement entered into by the Company
or any Subsidiary with any Lender.
"Offshore" means Apache Offshore Petroleum Limited Partnership, a
Delaware limited partnership.
"or" as used in this Agreement is not exclusive.
"Original April 1992 Agreement" is defined in Recital 2.
"Original Revolving Loans" is defined in Recital 1.
"Original Term Loans" is defined in Recital 1.
"Original Termination Date" means April 30, 1998.
"Participant" is defined in Section 17.2(a).
"Partnership Pledge and Security Agreement" means that certain Pledge
and Security Agreement, dated as of July 1, 1991, by and between the Company
and the Collateral Agent, as amended by the First Amendment to Partnership
Pledge and Security Agreement, dated as of April 15, 1992.
"Payment Date" means the second day of January and the first day of
each April, July and October of each calendar year, commencing July 1, 1994.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Person" means any corporation, natural person, firm, joint venture,
partnership, trust, unincorporated organization, enterprise, government or any
department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Company or any member of the Controlled Group may
have any liability.
"Projections" means the Company's projections (including the Company
Case and the Bank Liquidating Case) as set forth in tab 10 of the Revolving
Credit/Term Loan Facility Information Memorandum dated June 1991.
"Properties" means Hydrocarbon Interests and the properties now or
hereafter pooled or unitized with Hydrocarbon Interests; all presently existing
or future unitization, pooling agreements and declarations of pooled units and
the units created thereby (including without limitation all units created under
orders, regulations and rules of any governmental body or agency having
jurisdiction) which may affect all or any portion of the Hydrocarbon Interests;
all operating agreements, contracts and other agreements which relate to any of
the Hydrocarbon Interests or the production, sale, purchase, exchange or
processing of Hydrocarbons from or attributable to such Hydrocarbon Interests
and such properties; all Hydrocarbons in and under and which may be produced
and saved or attributable to the Hydrocarbon Interests and such properties; all
Hydrocarbons in and under and which may be produced and saved or attributable
to the Hydrocarbon Interests and such properties, the lands covered thereby and
all oil in tanks and all rents, issues, profits, proceeds, products, revenues
and other incomes from or attributable to the Hydrocarbon Interests and such
properties; all tenements, hereditaments, appurtenances and properties in
anywise appertaining, belonging, affixed or incidental to the Hydrocarbon
Interests, properties, rights, titles, interests and estates described or
referred to above,
14
<PAGE> 21
including any and all property, real or personal, now owned or hereinafter
acquired and situated upon, used, held for use or useful in connection with the
operating, working or development of any of such Hydrocarbon Interests or
property (excluding drilling rigs, automotive equipment or other personal
property which may be on such premises for the purpose of drilling a well or
for other similar temporary uses) and including any and all oil wells, gas
wells, injection wells or other wells, buildings, structures, fuel separators,
liquid extraction plants, plant compressors, pumps, pumping units, field
gathering systems, tanks and tank batteries, fixtures, valves, fittings,
machinery and parts, engines, boilers, meters, apparatus, equipment,
appliances, tools, implements, cables, wires, towers, casing, tubing and rods,
surface leases, rights-of-way, easements and servitudes together with all
additions, substitutions, replacements, accessions and attachments to any and
all of the foregoing in each case which are owned by the Company or any
Subsidiary.
"Proved Developed Non-Producing Reserves" means, with respect to the
Properties, those quantities of Hydrocarbons, estimated with reasonable
certainty, as demonstrated by geological and engineering data, to be
economically recoverable from the Properties by producing methods under
existing economic conditions using existing equipment and operating methods
from locations which are behind the casing of existing wells or at minor depths
below the present bottom of such wells and which are expected to be produced
through these wells in the predictable future, where a relatively small
expenditure is required for completion or recompletion to make such
Hydrocarbons available for production.
"Proved Developed Producing Reserves" means, with respect to the
Properties, those quantities of Hydrocarbons, estimated with reasonable
certainty, as demonstrated by geological and engineering data, to be
economically recoverable from the Properties by producing methods under
existing economic conditions using existing equipment and operating methods
from existing completion intervals open for production in existing wells.
"Proved Reserves" means, with respect to the Properties, the sum of
Proved Developed Producing Reserves, Proved Developed Non-Producing Reserves
and Proved Undeveloped Reserves.
"Proved Undeveloped Reserves" means, with respect to the Properties,
those quantities of Hydrocarbons, estimated with reasonable certainty, as
demonstrated by geological and engineering data, to be economically recoverable
from the Properties by producing methods under existing economic conditions
using existing equipment, or equipment for which there is a reasonable
expectation of or commitment to installation in the future, and operating
methods from (i) existing wells where a relatively large expenditure is
required for completion or recompletion and (ii) new wells on undrilled
locations (a) which are direct offsets to existing wells then or previously
open for production, (b) which are within known proved productive limits of the
subject formation, estimated with reasonable certainty, (c) which conform to
existing completion intervals for existing wells and (d) which will be
developed with a reasonable degree of certainty.
"Purchaser" is defined in Section 17.3(a).
"Qualified Long Term Rating" means in respect of any Person, a Person
which has publicly traded debt securities rated either A- or higher by Standard
& Poor's Corporation or A(3) or higher by Moody's Investors Service, Inc.
"Rate Option" means the Eurodollar Rate or the Floating Rate.
"Rating Agency" means each of Duff & Phelps Credit Rating Company,
Moody's Investors Service, Inc. and Standard & Poor's Corporation.
"Reference Lenders" means First Chicago and Chemical.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation or official interpretation of said Board of
Governors or any
15
<PAGE> 22
successor Person relating to reserve requirements applicable to member banks of
the Federal Reserve System or any successor Person.
"Regulation U" means any of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations of said
Board of Governors or any successor Person relating to the extension of credit
for the purpose of purchasing or carrying margin stocks applicable to member
banks of the Federal Reserve System or any successor Person.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 2.2.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such waivers in
accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means, as of any date of determination, Lenders
(including First Chicago and Chemical) having in the aggregate at least 66-2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders holding at least 66-2/3% of the then outstanding principal
amount of the Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or regulations issued from time to time by the Board
of Governors of the Federal Reserve System) which is then applicable to assets
or liabilities consisting of and including with a maturity equal to that of the
"Eurocurrency Liabilities", as defined in Regulation D, having a term
approximately equal or comparable to such Interest Period.
"Revolving Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Revolving Loans made by the Lenders or any of
them to the Company on the same Borrowing Date, at the same Rate Option and, in
the case of Eurodollar Revolving Loans, for the same Interest Period.
"Revolving Loan" means, with respect to a Lender, a revolving loan
made by such Lender pursuant to Sections 2.2 and 3.3 as the result of a
Borrowing Notice from the Company requesting an Advance.
"Revolving Note" means a promissory note in substantially the form of
Exhibit "A-1" hereto (with appropriate insertions and deletions), duly executed
and delivered to the Administrative Agent by the Company and payable to the
order of a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note.
"Sale" means any sale, transfer, assignment, lease, conveyance,
exchange, swap or other disposition.
"Schedules" means Schedules A, 8.8, 11.1 and 11.12 hereto.
"Security Agreement and Financing Statement" means that certain
Security Agreement and Financing Statement, dated as of July 1, 1991, by the
Company in favor of the Collateral Agent, as amended by the First Amendment to
Security Agreement and Financing Statement, dated as of April 15, 1992.
"Single Employer Plan" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of
the Controlled Group.
16
<PAGE> 23
"Solvent" means, with respect to any Person at any time, a condition
under which
the fair saleable value of such Person's assets
is, on the date of determination, greater than the total amount of
such Person's liabilities (including contingent and unliquidated
liabilities) at such time;
such Person is able to pay all of its liabilities
as such liabilities mature; and
such Person does not have unreasonably small
capital with which to conduct its business.
For purposes of this definition
(i) the amount of a Person's contingent or
unliquidated liabilities at any time shall be that amount
which, in light of all the facts and circumstances then
existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(ii) the "fair saleable value" of an asset
shall be the amount which may be realized within a
reasonable time either through collection or sale of such
asset at its regular market value; and
(iii) the "regular market value" of an asset
shall be the amount which a capable and diligent business
person could obtain for such asset from an interested buyer
who is willing to purchase such asset under ordinary
selling conditions.
"Stated Maturity Date" is defined in Section 3.4(a).
"Stock Pledge and Security Agreement" means that certain Stock Pledge
and Security Agreement, dated as of July 1, 1991, by the Company in favor of
the Collateral Agent, as amended by the First Amendment to Stock Pledge and
Security Agreement, dated as of April 15, 1992, the Second Amendment to Stock
Pledge and Security Agreement, dated as of May 15, 1992, and the Third
Amendment to Stock Pledge and Security Agreement, dated as of November 30,
1992.
"Subordinated Indebtedness" means any Indebtedness described in
Schedule 11.1 as subordinated indebtedness and any Indebtedness of the Company
or any of its Subsidiaries permitted pursuant to Section 11.1(c).
"Subsidiary" means, with respect to any Person, any other Person more
than 50% of the outstanding voting securities of which shall at the time be
owned or controlled, directly or indirectly, by such Person; provided, that
with respect to the Company, Subsidiaries shall include MW Petroleum, MWJR,
each Drilling Partnership and any other Person more than 50% of the outstanding
voting securities of which shall at the time be owned or controlled, directly
or indirectly, by the Company or by one or more Subsidiaries or by the Company
and one or more Subsidiaries; provided, that, notwithstanding the foregoing,
Subsidiaries of the Company shall not include, for the purposes of Article VIII
(except for Sections 8.10, 8.15 and 8.16). Article XI, Article XI (except for
Sections 11.2 and 11.9) and Article XII (except for Section 12.1 insofar as the
representation or warranty which is breached or shall be false was made
pursuant to Section 8.10, Section 8.15 or Section 8.16), HEL or Subsidiaries of
HERC.
"Termination Date" means the Original Termination Date, or such other
later date as may result from any extension requested by the Company and
consented to by the Lenders pursuant to Section 2.2.
"Transferee" is defined in Section 17.4.
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<PAGE> 24
"Unfunded Liabilities" means, (i) in the case of Single Employer
Plans, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value of all
Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans, and (ii) in the case of Multiemployer
Plans, the withdrawal liability that would be incurred by the Controlled Group
if all members of the Controlled Group completely withdrew from all
Multiemployer Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Utilized Commitment" means the sum of the aggregate outstanding
principal amount of Loans. With respect to each Lender, its share, in dollars,
of the Utilized Commitment shall be calculated as the sum of the aggregate
outstanding principal amount of such Lender's Loans.
"Wholly-Owned Subsidiary" means any Subsidiary all of the outstanding
voting securities of which shall at the time be owned or controlled, directly
or indirectly, by the Company or one or more Wholly-Owned Subsidiaries, or by
the Company and one or more Wholly-Owned Subsidiaries, or any similar business
organization which is so owned or controlled.
1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Schedule and Exhibit
hereto and in each Note, Borrowing Notice, Competitive Bid Borrowing Notice,
Continuation/Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
1.3. Cross References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article, Section,
Exhibit or Schedule are references to such Article or Section of or Schedule or
Exhibit to this Agreement or such other Loan Document, as the case may be, and,
unless otherwise specified, references in any Article, Section or definition to
any clause are references to such clause of such Article, Section or
definition.
1.4. Accounting and Financial Determination. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder, and all financial statements required to be delivered hereunder or
thereunder, shall be prepared in accordance with, the Agreement Accounting
Principles.
ARTICLE II
THE FACILITIES
2.1. The Facility.
(a) Description of Facility. On the Effective Date,
except as provided in Section 9.16, all outstanding 1992 Revolving
Loans shall be renewed, restated, extended and converted into (but
shall not be deemed to be repaid) Revolving Loans under this
Agreement; provided, however, that from and including the Effective
Date the Eurodollar Spread applicable with respect to such renewed,
restated, extended and converted 1992 Revolving Loans shall be
determined pursuant to this Agreement. Each Lender acknowledges that
repayment of 1992 Revolving Loans which are outstanding on the
Effective Date and renewed, restated, extended and converted into
Revolving Loans under this Agreement (but not any continuation or
conversions thereof pursuant to Section 3.6) shall be made based on
the percentages set forth on Schedule A, rather than on each Lender's
percentage of the Aggregate Commitment under this Agreement. On the
terms and subject to the conditions set forth in this Agreement
(including satisfaction of the conditions precedent set forth in
Article
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<PAGE> 25
VII), the Lenders grant to the Company a revolving credit facility
pursuant to which, and upon the terms and conditions herein set out:
(i) each Lender severally agrees to make
Revolving Loans to the Company in
accordance with this Section and
Article III; and
(ii) each Lender may, in its sole
discretion, make bids to make
Competitive Bid Loans to the Company in
accordance with this Section and
Article III.
(b) Facility Amount. In no event may the aggregate
principal amount of all outstanding Loans (including both the
Revolving Loans and the Competitive Bid Loans) exceed the Aggregate
Available Commitment and no Lender shall be obligated to make any Loan
hereunder if, after giving effect to such Loan, the sum of the
aggregate outstanding principal amount of all Loans would exceed the
Aggregate Available Commitment (as then in effect after giving effect
to any reductions thereof to be effectuated on such day).
(c) All Loans. Subject to the terms and conditions of
this Agreement, the Company may borrow, repay and reborrow all Loans
made under this Agreement at any time prior to the Termination Date.
The obligations of the Lenders to make Loans shall cease on the
Termination Date, and any and all Loans outstanding on such date shall
be due and payable on such date.
(d) Revolving Advances. Each Revolving Advance
hereunder shall consist of borrowings made from the several Lenders
ratably in proportion to the amounts of their respective Commitments.
The aggregate outstanding amount of Competitive Bid Loans shall reduce
each Lender's portion of the Aggregate Available Commitment ratably in
the proportion such Lender's Commitment bears to the Aggregate
Commitment regardless of which Lender or Lenders makes such
Competitive Bid Loans.
(e) Competitive Bid Loans. In addition to Revolving
Loans pursuant to Section 2.1(d), but subject to the terms and
conditions of this Agreement (including, without limitation, the
limitation set forth in Section 2.1(b) as to the maximum aggregate
principal amount of all outstanding Loans hereunder, the Company may,
as set forth in this Section 2.1(e) and Article III, at any time when
the facility fee payable under Section 2.5(a)(i) is calculated at a
rate per annum of .25%, request the Lenders, prior to the Termination
Date, to make offers to make Competitive Bid Advances to the Company.
Each Lender may, but shall have no obligation to, make such offers and
the Company may, but shall have no obligation to, accept such offers.
2.2. Extension of Termination Date and of Commitment.
(a) Subject to the other provisions of this Agreement,
the Aggregate Commitment shall be effective for an initial period from
the Effective Date to the Original Termination Date; provided that the
Aggregate Commitment, and concomitantly the Termination Date, may be
extended for successive one year periods expiring the date which is
one (1) year from the then scheduled Termination Date, in accordance
with the terms of this Section 2.2. If the Company shall request in
an Annual Certificate of Extension delivered to the Administrative
Agent not more than 120 nor less than 60 days prior to an Anniversary
Date, that the Aggregate Commitment be extended for one year from the
then scheduled Termination Date, then the Administrative Agent shall
promptly notify each Lender of such request and each Lender shall
notify the Administrative Agent, no later than the next date by which
each Lender is required, pursuant to Section 2.3(a), to approve or
disapprove of the Administrative Agent's and the Co-Agent's
determination of the Borrowing Base following the receipt of the
Approved Engineers' Report due no later than March 15 of each year,
whether it, in the exercise of its sole discretion, will
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<PAGE> 26
extend the Termination Date for such one year period; provided,
however, that if such Annual Certificate of Extension is delivered to
the Administrative Agent in the same year in which the Termination
Date is then scheduled to occur, each Lender shall notify the
Administrative Agent not fewer than 15 days prior to such Anniversary
Date, whether it, in the exercise of its sole discretion, will extend
the Termination Date for such one-year period. Any Lender which shall
not timely notify the Administrative Agent whether it will extend the
Termination Date shall be deemed to not have agreed to extend the
Termination Date. No Lender shall have any obligation whatsoever to
agree to extend the Termination Date. Any agreement to extend the
Termination Date by any Lender shall be irrevocable, except as
provided in Section 2.2(c).
(b) If all the Lenders notify the Administrative Agent
pursuant to clause (a) of this Section 2.2 of their agreement to
extend the Termination Date (such Lenders agreeing to extend the
Termination Date herein called the "Accepting Lenders"), then the
Administrative Agent shall so notify each Lender and the Company, and
such extension shall be effective without other or further action by
any party hereto for such additional one year period.
(c) If Lenders constituting at least the Required
Lenders approve the extension of the then scheduled Termination Date
and if one (1) or more of the Lenders shall notify, or be deemed to
notify, the Administrative Agent pursuant to clause (a) of this
Section 2.2 that it will not extend the then scheduled Termination
Date (such Lenders herein called the "Declining Lenders"), then (A)
the Administrative Agent shall promptly so notify the Company and the
Accepting Lenders, (B) the Accepting Lenders shall, upon the Company's
election to extend the then scheduled Termination Date in accordance
with clause (i) or (ii) below, extend the then scheduled Termination
Date and (C) the Company shall pursuant to a notice delivered to the
Administrative Agent, the Accepting Lenders and the Declining Lenders,
no later than the fifth day following the date by which each Lender is
required, pursuant to Section 2.2(a), to approve or disapprove the
requested extension of the Aggregate Commitment, either:
(i) elect to extend the Termination Date
with respect to the Accepting Lenders and direct the
Declining Lenders to terminate their Commitments, which
termination shall become effective on the date which would
have been the Termination Date except for the operation of
this Section 2.2. On such date, (x) the Company shall
deliver a notice of the effectiveness of such termination
to the Declining Lenders with a copy to the Administrative
Agent and (y) the Company shall pay in full in immediately
available funds all Obligations of the Company owing to the
Declining Lenders and (z) upon the occurrence of the events
set forth in clauses (x) and (y), the Declining Lenders
shall each cease to be a Lender hereunder for all purposes,
other than for purposes of Section 14.7, and shall cease to
have any obligations or any Commitment hereunder, other
than to the Agents pursuant to Section 15.8 and the
Administrative Agent shall promptly notify the Accepting
Lenders and the Company of the new Aggregate Commitment; or
(ii) elect to extend the Termination Date
with respect to the Accepting Lenders and, prior to or no
later than the then scheduled Termination Date, (A) to
replace one or more of the Declining Lender or Lenders with
another lender or lenders reasonably acceptable to the
Administrative Agent (such lenders herein called the
"Replacement Lenders") and (B) the Company shall pay in
full in immediately available funds all Obligations of the
Company owing to the Declining Lenders which are not being
replaced, as provided in clause (i) above; provided that
(x) the Replacement Lender or Lenders shall purchase, and
the Declining Lender or Lenders shall sell, the Notes of
the Declining Lender
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<PAGE> 27
or Lenders being replaced and the Declining Lender's or
Lenders' rights hereunder without recourse or expense to,
or warranty by, such Declining Lender or Lenders being
replaced for a purchase price equal to the aggregate
outstanding principal amount of the Note or Notes payable
to such Declining Lender or Lenders plus any accrued but
unpaid interest on such Note or Notes and accrued but
unpaid fees in respect of such Declining Lender's or
Lenders' Loans and Commitments hereunder, and (y) all
obligations of the Company owing under or in connection
with this Agreement to the Declining Lender or Lenders
being replaced (including, without limitation, such
increased costs, breakage fees payable under Section 6.3
and all other costs and expenses payable to each such
Declining Lender) shall be paid in full in immediately
available funds to such Declining Lender or Lenders
concurrently with such replacement, and (z) upon the
payment of such amounts referred to in clauses (x) and (y),
the Replacement Lender or Lenders shall each constitute a
Lender hereunder and the Declining Lender or Lenders being
so replaced shall no longer constitute a Lender (other than
for purposes of Section 14.7), and shall no longer have any
obligations hereunder, other than to the Agents pursuant
to Section 15.8; or
(iii) elect to revoke and cancel the
extension request in such Annual Certificate of Extension
by giving notice of such revocation and cancellation to the
Administrative Agent (which shall promptly notify the
Lenders thereof) no later than the fifth day following the
date by which each Lender is required, pursuant to Section
2.2(a), to approve or disapprove the requested extension of
the Aggregate Commitment.
If the Company fails to timely provide the election notice referred to
in this clause(c), the Company shall be deemed to have revoked and cancelled
the extension request in the Annual Certificate of Extension and to have
elected not to extend the Aggregate Commitment, and the concomitant Termination
Date with respect to the Accepting Lenders, and on the then scheduled
Termination Date the Company shall repay in full all amounts outstanding under
the Loans.
2.3. Borrowing Base.
(a) Initial Borrowing Base; Scheduled Semi-Annual and
Discretionary Determinations of the Borrowing Base; Procedures for
Determination of the Borrowing Base. The initial Borrowing Base shall
be $450,000,000. The Borrowing Base shall be redetermined upon
receipt by the Administrative Agent, the Co-Agent and the Lenders of
the relevant Approved Engineers' Report or Company's Engineers'
Report, as the case may be, pursuant to Sections 2.3(b) or (e),
4.2(d), 9.1(d), (e) or (f). Additionally, the Borrowing Base may be
redetermined under each of the circumstances set forth in Sections
2.3(d), 2.3(e) and 11.1. The redeterminations of the Borrowing Base
described in the preceding sentences shall be made as follows: The
Administrative Agent and Co-Agent shall make a determination of the
Borrowing Base in accordance with the criteria described in clause (c)
of this Section 2.3 within thirty (30) days after receipt of the
Approved Engineers' Report or the Company's Engineers' Report, as the
case may be. Within ten (10) days following such determination, the
Administrative Agent shall notify the Lenders in writing of such
determination. Each Lender shall notify the Administrative Agent in
writing, by telex or by facsimile transmission whether it approves or
disapproves of any such determination of the Borrowing Base within ten
(10) Business Days of its receipt of such notice from the
Administrative Agent; provided that any Lender which does not so
notify the Administrative Agent shall be deemed to have approved of
such determination. Upon the approval (or deemed approval) by the
Required Lenders, such determination shall thereafter be the Borrowing
Base, and the Administrative Agent shall within five (5) days of such
approval notify the Company in writing of such redetermined Borrowing
Base. The
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<PAGE> 28
Administrative Agent shall promptly notify the Company and the Lenders
of any change in the Borrowing Base.
(b) Determination of Borrowing Base at Request of
Company. The Company may request one Borrowing Base determination
between regularly scheduled semi-annual redeterminations of the
Borrowing Base by delivery to the Administrative Agent, the Co-Agent
and the Lenders of a written request for such determination; provided
that a deemed request for a determination of the Borrowing Base
pursuant to Section 11.1(c), (d) or (e) shall not preclude the
Company's requesting a Borrowing Base determination to which it is
otherwise entitled pursuant to this clause (b). In connection with
such determination the Company shall deliver to the Administrative
Agent, the Co-Agent and the Lenders such reports and information
concerning the Properties (which may include in the Administrative
Agent's and Co-Agent's sole discretion an Approved Engineers' Report
or a Company's Engineers' Report as of such date) as the
Administrative Agent and the Co- Agent shall deem appropriate in their
sole discretion.
(c) Criteria for Determination of the Borrowing Base.
Each determination by the Administrative Agent and the Co-Agent and
the approval by the Required Lenders of the Borrowing Base
attributable to the Properties owned by the Company and its
Subsidiaries including Properties owned through partnerships (but not
to exceed in each case an undivided share of such Properties equal to
the Company's ownership share of such partnerships) shall be made by
them in the exercise of their respective sole discretion based on
their then current engineering criteria and oil and gas lending
criteria, all as determined using the then most recently received
Approved Engineers' Report or Company's Engineers' Report, as the case
may be, and, subject to the approval of the Required Lenders to the
extent set forth in clause (a) of this Section 2.3, shall be
conclusive and binding in the absence of manifest error.
(d) Redeterminations of Borrowing Base Upon Material
Adverse Effect. In the event of:
(i) the assertion or filing of any adverse
claim, defect or encumbrance affecting or purporting to
affect the title of the Company or any Subsidiary to any
Property; or
(ii) any blow out or other casualty
affecting any Property or the production of oil and gas
therefrom; or
(iii) any withholding after one hundred
twenty (120) days following commencement of production by
any Person of sums due the Company or any Subsidiary in
respect of Hydrocarbons produced, which withholding results
from an allegation or claim affecting such Person's rights
to such payment;
which would have or be a Material Adverse Effect, the Administrative
Agent and the Co-Agent shall have the right in their sole discretion
to reduce the Borrowing Base, either temporarily or permanently, by
the amount included therein with respect to the interest as to which a
claim, defect, encumbrance, withholding or dispute has arisen or
exists or a casualty has occurred. The failure of the Administrative
Agent and the Co-Agent to make any such reduction upon receipt of any
notice with respect to any such claim, dispute or casualty shall not
preclude their later election to so reduce the Borrowing Base.
(e) Redetermination of Borrowing Base Upon Material
Changes. In the event that "material changes" occur between the dates
of determination of the Borrowing Base in (i) oil and/or gas prices,
(ii) taxes, (iii) anticipated rates or amounts of production from any
Properties included in the Borrowing Base, (iv) the Company's or any
Subsidiary's, as the case may be, title or purported title to the
Properties, (v) operating, lease, royalty and other arrangements
relating
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<PAGE> 29
to the Properties or (vi) operating costs with respect to the
Properties, then in any such event the Administrative Agent and the
Co-Agent may, in their sole discretion, redetermine the Borrowing Base
in accordance with the standards set forth in Section 2.3(c) prior to
the receipt of either a new Approved Engineers' Report or a new
Company's Engineers' Report by adjusting the Borrowing Base to reflect
the changes which have occurred. For the purposes hereof, "material
changes" shall be deemed to have occurred for purposes of this Section
2.3(e) when such changes would in the aggregate result in a material
decrease in the Borrowing Base as determined by the Administrative
Agent and the Co-Agent in their sole and absolute discretion.
(f) Reduction of Borrowing Base Upon Sales of Certain
Properties. Upon consummation of the Sale of any Property in the
Borrowing Base constituting a permitted and designated Sale under
clause (iii) of Section 11.3, the Borrowing Base shall be reduced on
account of such Sale by an amount equal to the proceeds of such Sale
net of reasonable incidental brokerage and legal costs actually paid
to third parties, net of taxes associated with such Sale payable in
cash concurrently with the consummation of such Sale, and net of
federal and state income taxes estimated to be due in respect of such
Sale by the Company acting reasonably and in good faith, provided
reserves for such taxes are established by the Company. Upon the
consummation of the Sale of any Property in the Borrowing Base
constituting a permitted Sale under clause (iv) of Section 11.3, the
Borrowing Base shall be reduced by an amount equal to the amount of
the mandatory prepayment, if any, required to be made under Section
4.2(d) on account of such Sale.
(g) Title Warranty. Delivery to the Lenders of any
Approved Engineers' Report or Company's Engineers' Report shall be
deemed to be a reaffirmation as of the date of delivery of such report
of the representation and warranties in Section 8.14.
2.4. (Intentionally Omitted.)
2.5. Facility Fee; Other Fees.
(a) Facility Fee. (i) The Company agrees to pay to
the Administrative Agent for the account of each Lender a facility fee
for the period from (and including) the date hereof to the Termination
Date, at the applicable rate per annum set forth below on such
Lender's ratable portion of the Aggregate Available Commitment as in
effect from time to time; provided, however, that a reduction in a
Lender's portion of the Aggregate Available Commitment pursuant to
Section 2.1(d) shall not reduce such Lender's ratable portion of the
Aggregate Available Commitment for the purposes of this Section
2.5(a)(i):
<TABLE>
<CAPTION>
Rating of the Company's Long-
Term Debt by 2 or
Debt/Capitalization Ratio more Rating Agencies Facility Fee
<S> <C> <C>
Greater than or equal to .60 to 1.0 Lower than BBB-/Baa3 .50%
Greater than or equal to .60 to 1.0 BBB-/Baa3 or higher .375%
Greater than or equal to .50 to 1.0 but Not applicable .375%
less than .60 to 1.0
Greater than or equal to .45 to 1.0 but BBB-/Baa3 or lower .375%
less than .50 to 1.0
</TABLE>
23
<PAGE> 30
<TABLE>
<CAPTION>
Rating of the Company's
Long-Term Debt by 2 or
Debt/Capitalization Ratio more Rating Agencies Facility Fee
<S> <C> <C>
Greater than or equal to .45 BBB/Baa2 or higher .25%
to 1.0 but less than .50 to 1.0
Less than .45 to 1.0 Not applicable .25%
</TABLE>
(ii) The Company agrees to pay to the Administrative Agent
for the account of each Lender a facility fee for the period from (and
including) the date hereof to the Termination Date, at one-half of the
rate applicable per annum set forth in clause (i) above on such
Lender's ratable portion of the Aggregate Unavailable Commitment as in
effect from time to time; provided, however, that a reduction in a
Lender's portion of the Aggregate Available Commitment pursuant to
Section 2.1(d) shall not reduce such Lender's ratable portion of the
Aggregate Unavailable Commitment for the purposes of this Section
2.5(a)(ii).
Facility fees accruing pursuant to this Section 2.5(a) shall be payable in
arrears on each Payment Date hereafter and on the Termination Date. In
addition to the foregoing, the Company agrees to pay all fees accruing prior to
date hereof with respect to each Lender's commitments under the April 1992
Agreement.
(b) Participation Fee. The Company agrees to pay to
the Administrative Agent for the account of each Lender, on the
Effective Date, a participation fee in an amount equal to .125% of
each Lender's Commitment, as in effect on the Effective Date.
(c) Agents' Fees. The Company shall pay to each Agent
for its own respective account such fees in connection with this
Agreement as previously have been agreed in a writing among them (as
such writing may hereafter be amended, supplemented, restated or
otherwise modified and in effect).
ARTICLE III
BORROWING; SELECTING RATE OPTIONS; ETC.
3.1. Method of Borrowing.
(a) Revolving Loans. Not later than noon Chicago time
on each Borrowing Date for Revolving Loans, each Lender shall make
available its Loan or Loans, in funds immediately available in
Chicago, to the Administrative Agent at its address specified pursuant
to Article XVIII. The Administrative Agent will make the funds so
received from the Lenders with respect to Revolving Loans available to
the Company at the Administrative Agent's aforesaid address.
(b) Competitive Bid Loans. Not later than noon
Chicago time on the Borrowing Date specified for each Competitive Bid
Loan, each Lender whose Competitive Bid Quote in respect thereof the
Company accepted pursuant to Section 3.4(e) shall make available its
Competitive Bid Loan, in funds immediately available in Chicago, to
the Administrative Agent at its address specified pursuant to Article
XVIII. The Administrative Agent will make the funds so received from
the Lenders with respect to Competitive Bid Loans available to the
Company at the Administrative Agent's aforesaid address.
3.2. (Intentionally Omitted.)
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<PAGE> 31
3.3. Method of Selecting Rate Options and Interest Periods for
Revolving Loans. The Company shall select the Rate Option and Interest Period
applicable to each Revolving Advance from time to time. The Company shall give
the Administrative Agent irrevocable notice (a "Borrowing Notice") not later
than (a) 10:00 a.m. Chicago time at least one (1) Business Day before the
Borrowing Date of each Floating Rate Revolving Advance, and (b) 11:00 a.m.
Chicago time at least three (3) Business Days before the Borrowing Date for
each Eurodollar Revolving Advance, specifying:
(i) the Borrowing Date, which shall be a
Business Day, of such Revolving Advance,
(ii) the aggregate amount of such Revolving
Advance,
(iii) the Rate Option selected for such
Revolving Advance, and
(iv) in the case of each Eurodollar
Revolving Advance, the Interest Period applicable thereto.
Each Eurodollar Revolving Advance shall bear interest from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined from time to
time as applicable to such Eurodollar Revolving Advance. The Company shall
select Interest Periods with respect to Eurodollar Revolving Advances so that
it is not necessary to pay a Eurodollar Revolving Advance prior to the last day
of the applicable Interest Period in order to make the mandatory repayment on
the Termination Date.
3.4. Competitive Bid Loans.
(a) Competitive Bid Quote Request. When the Company
wishes to request offers to make Competitive Bid Loans under this
Agreement, it shall transmit to the Administrative Agent by telex or
telecopy a Competitive Bid Quote Request substantially in the form of
Exhibit E hereto so as to be received no later than (i) 10:00 a.m.
(Chicago time) at least four Business Days prior to the Borrowing Date
proposed therein, in the case of a Eurodollar Auction or (ii) 9:00
a.m. (Chicago time) at least one Business Day prior to the Borrowing
Date proposed therein, in the case of a Floating Rate Auction
specifying:
(i) the proposed Borrowing Date, which
shall be a Business Day, for the proposed Competitive Bid
Advance;
(ii) the aggregate principal amount of such
Competitive Bid Advance;
(iii) whether the Competitive Bid Quotes
requested are to set forth a Eurodollar Bid Rate or a
Floating Bid Rate, or both;
(iv) in the case of each Floating Rate
Auction, the maturity date (relative to each Competitive
Bid Loan, its "Stated Maturity Date") for the proposed
Competitive Bid Advance (which Stated Maturity Date may not
be earlier than the date occurring seven (7) days after the
proposed Borrowing Date of such Competitive Bid Advance or
later than the earlier of (x) the date occurring 185 days
after the proposed Borrowing Date of such Competitive Bid
Advance and (y) the Termination Date); and
(v) in the case of each Eurodollar Bid Rate
Advance, the Interest Period applicable thereto (which may
not end after the Termination Date); provided that the
final day of the Interest Period applicable to each
Eurodollar Bid Rate Loan shall be the Stated Maturity Date
thereof.
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<PAGE> 32
The Company may request offers to make Competitive Bid
Loans for more than one Interest Period in a single Competitive Bid
Quote Request. No Competitive Bid Quote Request shall be given within
5 Business Days (or such other number of days as the Company and the
Administrative Agent may agree) of any other Competitive Bid Quote
Request. A Competitive Bid Quote Request that does not conform
substantially to the format of Exhibit E hereto shall be rejected, and
the Administrative Agent shall promptly notify the Company of such
rejection by telex or telecopy.
(b) Invitation for Competitive Bid Quotes. Promptly
and in any event before the close of business on the same Business Day
of receipt of a Competitive Bid Quote Request that is not rejected
pursuant to Section 3.4(a), the Administrative Agent shall send to
each of the Lenders by telex or telecopy an Invitation for Competitive
Bid Quotes substantially in the form of Exhibit H hereto, which shall
constitute an invitation by the Company to each Lender to submit
Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with
this Section 3.4.
(c) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans in response
to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the
requirements of this Section 3.4(c) and must be
submitted to the Administrative Agent by telex or
telecopy at its offices specified pursuant to
Article XVIII not later than (a) 10:00 a.m.
(Chicago time) at least three Business Days prior
to the proposed Borrowing Date, in the case of a
Eurodollar Auction or (b) 9:00 a.m. (Chicago time)
on the proposed Borrowing Date, in the case of a
Floating Rate Auction (or, in either case upon
reasonable prior notice to the Lenders, such other
time and date as the Company and the
Administrative Agent may agree); provided that
Competitive Bid Quotes submitted by First Chicago
may only be submitted if the Administrative Agent
or First Chicago notifies the Company of the terms
of the offer or offers contained therein not later
than 15 minutes prior to the latest time at which
the relevant Competitive Bid Quotes must be
submitted by the other Lenders. Subject to
Articles VII and XII, any Competitive Bid Quote so
made shall be irrevocable except with the written
consent of the Administrative Agent given on the
instructions of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit K hereto and
shall in any case specify:
a. the proposed Borrowing Date, which
shall be the same as that set forth in the applicable
Invitation for Competitive Bid Quotes;
b. the Stated Maturity Date and the
principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $10,000,000 and an
integral multiple of $1,000,000 in the case of a Eurodollar
Bid Rate Advance and at least $7,000,000 and an integral
multiple of $500,000 in the case of a Floating Bid Rate
Advance, and (3) may not exceed the principal amount of
Competitive Bid Loans for which offers were requested;
c. the Competitive Bid Margin offered for
each such Competitive Bid Loan;
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d. the minimum amount, if any, of the
Competitive Bid Loan which may be accepted by the Company;
and
e. the identity of the quoting Lender.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
a. is not substantially in the form of
Exhibit K hereto or does not specify all of the information
required by Section 3.4(c)(ii);
b. contains qualifying, conditional or
similar language, other than any such language contained in
Exhibit K hereto;
c. proposes terms other than or in
addition to those set forth in the applicable Invitation
for Competitive Bid Quotes; or
d. arrives after the time set forth in
Section 3.4(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 3.4(c)(iii), then the Administrative Agent shall notify
the relevant Lender of such rejection as soon as practical.
(d) Notice to Company. The Administrative Agent shall
promptly notify the Company of the terms (i) of any Competitive Bid
Quote submitted by a Lender that is in accordance with Section 3.4(c)
and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative
Agent's notice to the Company shall specify the aggregate principal
amount of Competitive Bid Loans for which offers have been received
for each Interest Period or Stated Maturity Date specified in the
related Competitive Bid Quote Request and the respective principal
amounts and Eurodollar Bid Rates or Floating Bid Rates, as the case
may be, so offered.
(e) Acceptance and Notice by Company. Not later than
(i) 11:00 a.m. (Chicago time) at least three Business Days prior to
the proposed Borrowing Date, in the case of a Eurodollar Auction or
(ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the
case of a Floating Rate Auction (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Company
and the Administrative Agent may agree), the Company shall notify the
Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 3.4(d); provided, however, that the
failure by the Company to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount and the Interest Period and
Stated Maturity Date of each offer that is accepted. The Company may
accept any Competitive Bid Quote in whole or in part (subject to the
terms of Section 3.4(c)(ii)d); provided that:
a. the aggregate principal amount of each
Competitive Bid Advance may not exceed the applicable
amount set forth in the related Competitive Bid Quote
Request;
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b. acceptance of offers may only be made
on the basis of ascending Eurodollar Bid Rates or Floating
Bid Rates, as the case may be; and
c. the Company may not accept any offer
that is described in Section 3.4(c)(iii) or that otherwise
fails to comply with the requirements of this Agreement.
(f) Allocation by Administrative Agent. If offers are
made by two or more Lenders with the same Eurodollar Bid Rates or
Floating Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amount
of such offers; provided, however, that no Lender shall be allocated a
portion of any Competitive Bid Advance which is less than the minimum
amount which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same
Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such
Competitive Bid Advance allocated to each participating Lender.
3.5. Minimum Amount of Each Advance. Each requested Eurodollar
Bid Rate Advance and Eurodollar Revolving Advance shall be in the minimum
amount of $10,000,000 (and in multiples of $1,000,000 if in excess thereof),
and each requested Floating Bid Rate Advance and Floating Rate Revolving
Advance shall be in the minimum amount of $7,000,000 (and in multiples of
$500,000 if in excess thereof); provided, however, that any Floating Bid Rate
Advance and any Floating Rate Revolving Advance may be in the amount of the
difference between (i) the Aggregate Available Commitment minus (ii) the sum of
the outstanding principal amount of all Loans.
3.6. Continuation and Conversion Elections. By providing a
Continuation/Conversion Notice to the Administrative Agent on or before 11:00
a.m. Chicago time, in the case of a Eurodollar Revolving Loan, or 10:00 a.m.
Chicago time, in the case of a Floating Rate Revolving Loan, on a Business Day,
the Company may from time to time irrevocably elect, on, in the case of a
Eurodollar Revolving Loan, not less than three nor more than five, and in the
case of a Floating Rate Revolving Loan not less than one or more than three,
Business Days' notice, that all, or any portion in an aggregate minimum amount
of $10,000,000 and an integral multiple of $1,000,000 or the remaining balance
of any Revolving Loans be, in the case of Floating Rate Revolving Loans
converted into Eurodollar Revolving Loans or, in the case of Eurodollar
Revolving Loans converted into Floating Rate Revolving Loans or continued as
Eurodollar Revolving Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any Eurodollar Revolving Loan at
least three Business Days before the last day of the then current Interest
Period with respect thereto, such Eurodollar Revolving Loan shall, on such last
day, automatically convert to a Floating Rate Revolving Loan); provided,
however, that no portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, a Eurodollar Advance when any Default
has occurred and is continuing.
3.7. Telephonic Notices. The Company hereby authorizes the
Lenders and the Administrative Agent to extend Advances, effect Rate Option
selections and submit Competitive Bid Quotes based on telephonic notices made
by any Person or Persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Company. The Company agrees to deliver
promptly to the Administrative Agent a written confirmation of each telephonic
notice signed by an Authorized Officer. If the written confirmation differs in
any material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error.
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3.8. Rate after Maturity. Except as provided in the next
sentence, any Advance not paid at maturity, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per annum equal to
the Floating Revolving Rate plus 2%. In the case of a Eurodollar Advance the
maturity of which is accelerated, such Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period, at the higher of the rate
(including the Eurodollar Spread or the Competitive Bid Margin, as applicable)
otherwise applicable to such Interest Period plus 2% per annum or the Floating
Revolving Rate plus 2% per annum.
3.9. Interest Payment Dates; Determination of Interest and Fees.
(a) Interest Payment Dates.
(i) Interest accrued and unpaid on each
Floating Rate Revolving Advance shall be payable on each
Payment Date and on any date on which such Floating Rate
Revolving Advance is paid or prepaid, whether due to
acceleration or otherwise. Interest accrued on each
Eurodollar Revolving Advance shall be payable on the last
day of its applicable Interest Period and on any date on
which such Eurodollar Revolving Advance is prepaid, whether
due to acceleration or otherwise. Interest accrued on each
Eurodollar Revolving Advance having an Interest Period
longer than three (3) months shall also be payable on the
last day of each three-month interval during such Interest
Period.
(ii) Interest on the outstanding principal
amount of Competitive Bid Loans shall be payable on the
Stated Maturity Date for each such Competitive Bid Loan;
provided, however, that in the case of a Eurodollar Bid
Rate Advance having an Interest Period longer than three
(3) months, interest accrued on such Eurodollar Bid Rate
Advance shall also be payable on the last day of each
three-month interval during such Interest Period.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local
time) at the place of payment. If any payment of principal of, or interest on,
an Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day (except as provided in the
definition of Interest Period) and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
(b) Determination of Interest and Fees. Interest on
any Advance or portion thereof bearing interest at the Floating
Revolving Rate or the Floating Bid Rate and facility fees shall be
calculated for actual days elapsed on the basis of a 365- or, if
applicable, 366-day year, and all other interest and fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
Changes in the Alternate Base Rate Spread and the Eurodollar Spread
attributable to a change in the Debt/Capitalization Ratio or to a
change in the Company's Long-term Debt Rating, if any, shall be
effective on the forty-fifth (45th) day of a calendar quarter.
3.10. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each commitment reduction
notice, Borrowing Notice, Continuation/Conversion Notice, Competitive Bid Quote
Request and repayment notice received by it hereunder. The Administrative
Agent will notify each Lender of the Eurodollar Rate applicable to each
Eurodollar Advance promptly upon determination of such Eurodollar Rate and will
give each Lender prompt notice of each change in the Alternate Base Rate. Each
Reference Lender agrees to furnish timely information for the purpose of
determining the Eurodollar Rate.
3.11. Non-Receipt of Funds by the Administrative Agent. Unless
the Company or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent
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<PAGE> 36
of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of
the Company, a payment of principal, interest, fees or other amounts to the
Administrative Agent for the account of the Lenders or any Agent, that it does
not intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Company, as
the case may be, has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the Administrative Agent,
repay to the Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Administrative Agent until the
date the Administrative Agent recovers such amount at a rate per annum equal to
(i) in the case of payment by a Lender or any Agent, the Federal Funds
Effective Rate for such day or (ii) in the case of payment by the Company, the
interest rate applicable to the relevant Loan or, in the case of payments in
respect of interest, fees or other amounts, at a rate equal to the Floating
Rate.
ARTICLE IV
MANDATORY PAYMENTS; REDUCTIONS OF COMMITMENTS; ETC.
4.1. (Intentionally Omitted.)
4.2. Mandatory Prepayments.
(a) Mandatory Prepayment on Account of Excess of
Outstandings Over Aggregate Available Commitment. In the event that
after giving effect to all other payments or prepayments required to
be made under this Section 4.2 on any Business Day the aggregate
outstanding principal amount of the Loans shall at any time exceed the
Aggregate Available Commitment, the Company shall within ninety (90)
days make a mandatory prepayment on the Loans in an amount equal to
such excess together with all interest accrued on the amount of such
prepayment to the date thereof. Notwithstanding that the Company
shall have a 90-day period in which to make any mandatory prepayment
specified in this Section 4.2(a), (i) the Company shall not be
entitled to borrow Loans during such period without meeting the test
under Section 2.1(b) and (ii) the Company shall make all other
prepayments and payments required under or in connection with this
Agreement as required; provided, that for purposes of the foregoing
provisions of this sentence the conversion of an outstanding
Eurodollar Loan into a Floating Rate Loan during such period shall not
be deemed to be the borrowing of a Loan.
(b) Mandatory Prepayment on Account of Sales of
Certain Properties Included in the Borrowing Base. Promptly upon the
consummation of any Sale of any Property included in the Borrowing
Base constituting (and designated by the Company in a notice to the
Administrative Agent as constituting) a permitted Sale under clause
(iii) of Section 11.3 and in any event within three (3) Business Days
thereof, the Company shall make a mandatory prepayment hereunder equal
to the amount, if any, by which the aggregate outstanding principal
amount of all Loans on the date of such mandatory prepayment exceeds
the Aggregate Available Commitment (as then in effect after giving
effect to any reduction thereof resulting from such Sale).
(c) (Intentionally Omitted.)
(d) Mandatory Prepayment on Account of Extraordinary
Sales of Properties. In the event the Company or any Subsidiary
proposes to consummate a Sale of any Property, which Sale is not
otherwise permitted under clause (i) or (ii) of Section 11.3 or
otherwise permitted and designated under clause (iii) of Section 11.3,
the Company shall promptly notify the Administrative Agent, the
Co-Agent and the Lenders of such proposed Sale, which notice shall
describe such Property and, if known,
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<PAGE> 37
the proposed terms of Sale. In connection therewith the Company shall
deliver to the Administrative Agent, the Co-Agent and the Lenders such
reports and information concerning such Property (which may include in
the Administrative Agent's and Co-Agent's sole discretion an Approved
Engineers' Report or a Company's Engineers' Report as of such date)
and such Sale as the Administrative Agent and the Co-Agent shall deem
appropriate in their sole discretion; provided, however, that in the
event the Company or any Subsidiary proposes to consummate a Sale of
the type described in this Section 4.2(d), with respect to a Property
not included within the Borrowing Base, no mandatory prepayment shall
be required; and further, provided, that in no event shall the
Borrowing Base be reduced by an amount in excess of the proceeds of
such Sale net of costs, charges, and taxes incidental to the Sale, as
provided in Section 2.3(f) for Sales pursuant to clause (iii) of
Section 11.3. Promptly following receipt of such report and
information, and upon approval of such Sale by the Administrative
Agent and the Co-Agent, the Administrative Agent and the Co-Agent
shall make a recommendation to the Lenders in writing of the amount of
prepayment that the Company shall be required to make under this
Section 4.2(d) (which amount shall also be the amount of the reduction
in the Borrowing Base pursuant to Section 2.3(f)), which
recommendation shall be made by the Administrative Agent and the
Co-Agent in the exercise of their sole discretion. Each Lender shall
notify the Administrative Agent in writing, by telex or by facsimile
transmission whether it approves or disapproves (which approval or
disapproval shall be made by each Lender in the exercise of its sole
discretion) of such recommendation by the Administrative Agent and the
Co-Agent within ten (10) Business Days of its receipt of such
recommendation from the Administrative Agent; provided, that any
Lender which does not so notify the Administrative Agent shall be
deemed to have approved of such Sale, such amount of prepayment and
such reduction in the Borrowing Base. Upon the approval of the
Required Lenders, the Administrative Agent shall promptly notify the
Company of such determination. The Company promptly upon the
consummation of any such permitted Sale and in any event within three
(3) Business Days thereof, shall, if required, make a mandatory
prepayment hereunder in the amount so determined in accordance with
this clause (d).
(e) Application of Mandatory Prepayments. Each
mandatory prepayment made under this Section 4.2 shall be applied (i)
first, ratably among the Lenders with respect to any principal and
interest due in connection with Revolving Loans, (ii) second, after
all amounts described in clause (i) have been satisfied, ratably among
those Lenders for whom any payment of principal and interest is due in
connection with any Competitive Bid Loans and (iii) third, after all
amounts described in clauses (i) and (ii) have been satisfied, ratably
to any other Obligations then due.
4.3. Voluntary Prepayments. The Company may from time to time,
at its option, prepay outstanding Advances, upon three (3) Business Days' prior
notice to the Administrative Agent in the case of a Eurodollar Advance, or upon
one (1) Business Day's prior notice to the Administrative Agent in the case of
a Floating Rate Advance; provided that each such prepayment shall be in a
minimum aggregate amount of $4,000,000 or any integral multiple of $1,000,000
in excess thereof without penalty or premium, except that if such prepayment of
a Eurodollar Loan occurs prior to a last day of any applicable Interest Period,
the Company shall also pay the amount specified in Section 6.3 at the time of
such prepayment. Such prepayments shall be applied, at the Company's option,
against outstanding Revolving Loans and Competitive Bid Loans and against
installments or amounts due on account thereof in such order of application as
the Company shall direct; provided, that if the Company fails to direct an
order of application at or prior to the time of such notice of prepayment, then
such prepayments shall be applied (i) first, ratably among the Lenders with
respect to any principal and interest due in connection with Revolving Loans,
(ii) second, after all amounts described in clause (i) have been satisfied,
ratably among those Lenders for whom any payment of principal and interest is
due in connection with any Competitive Bid Loans and (iii) third, after all
amounts described in clauses (i) and (ii) have been satisfied, ratably to any
other
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Obligations then due; provided, further, that if, at the time of any such
prepayment, any Default shall have occurred and shall be continuing, then the
holders of the Obligations shall share such prepayment on a pro rata basis,
based on the respective amount of Obligations owing to each such holder
(whether or not matured and currently payable and whether consisting of
principal, accrued interest, fees, expenses, indemnities or other types of
Obligations) as of the date of occurrence of such Default.
4.4. Method of Payment. All payments of principal, interest,
and fees hereunder shall be made by noon (local time at the place of payment)
on the date when due in immediately available funds to the Administrative Agent
at the Administrative Agent's address specified pursuant to Article XVIII, or
at any other single Lending Installation of the Administrative Agent specified
not less than five (5) days prior to the date when due in writing by the
Administrative Agent to the Company and shall be applied (i) first, ratably
among the Lenders with respect to any principal and interest due in connection
with Revolving Loans, (ii) second, after all amounts described in clause (i)
have been satisfied, ratably among those Lenders for whom any payment of
principal and interest is due in connection with any Competitive Bid Loans and
(iii) third, after all amounts described in clauses (i) and (ii) have been
satisfied, ratably to any other Obligations then due; provided, however, that,
if, at the time of any such payment, any Default shall have occurred and shall
be continuing, then the holders of the Obligations shall share such payment on
a pro rata basis, based on the respective amount of Obligations owing to each
such holder (whether or not matured and currently payable and whether
consisting of principal, accrued interest, fees, expenses, indemnities or other
types of Obligations) as of the date of occurrence of such Default. As between
the Company and any Lender, the timely receipt of any payment by the
Administrative Agent from the Company for the account of such Lender shall
constitute receipt by such Lender. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds which the
Administrative Agent received at its address specified pursuant to Article
XVIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. Each of the Company and the
Administrative Agent shall be deemed to have complied with this Section 4.4
with respect to any payment if it shall have initiated a wire transfer to the
appropriate recipient thereof and furnished such recipient with the identifying
number of such wire transfer.
4.5. Notes. Each Lender is hereby authorized to record the
principal amount of each of its Loans and each repayment thereof, on the
schedule attached to each of its Notes, provided, however, that the failure to
so record shall not affect the Company's obligations under any such Note.
4.6. Voluntary Reductions of Commitments. The Company may
permanently reduce the Aggregate Commitment in whole, or in part, ratably among
the Lenders, in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof; provided, however, that the amount of
the Aggregate Commitment may not be reduced to an amount which would cause it
to be less than the outstanding principal amount of the Loans. All accrued
facility fees shall be payable on the effective date of any such reduction or
termination of the Aggregate Commitment.
4.7. Voluntary and Mandatory Prepayments. Any prepayments of
principal of the Loans, whether voluntary or mandatory, shall include accrued
interest to, but not including, the date of the prepayment on the principal
amount being prepaid.
ARTICLE V
(Intentionally Omitted.)
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ARTICLE VI
CHANGE IN CIRCUMSTANCES; TAXES
6.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any reasonable interpretation thereof, or
compliance of any Lender with such,
(a) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in determining
the interest rate applicable to Eurodollar Advances), or
(b) imposes any other condition the result of which is
to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to
the amount of Loans held or interest received, by an amount reasonably
deemed material by such Lender,
then, within 15 days of demand by such Lender, the Company shall pay such
Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender reasonably determines is attributable to
making, funding and maintaining its Loans and its Commitment.
6.2. Availability of Rate Options. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, (i) the Administrative Agent shall suspend the
availability of the Eurodollar Rate with respect to such Lender until such time
as such situation is no longer the case, (ii) any Eurodollar Loans from such
Lender then outstanding shall bear interest at the Floating Rate for the
remainder of the Interest Period applicable to such Loan and (iii) until such
time as such situation is no longer the case, any Eurodollar Advance made
thereafter shall consist of a Floating Rate Loan made by such Lender(s) and
Eurodollar Loans made by each other Lender. If the Required Lenders reasonably
determine that deposits of a type or maturity appropriate to match fund
Eurodollar Advances are not available, the Administrative Agent shall suspend
the availability of the Eurodollar Rate with respect to any Eurodollar Advances
made after the date of any such determination until such time as such situation
is no longer the case. If the Required Lenders determine that the Eurodollar
Rate does not accurately reflect the cost of making a Eurodollar Advance at
such Eurodollar Rate, then, if for any reason whatsoever the provisions of
Section 6.1 are inapplicable, the Administrative Agent shall suspend the
availability of the Eurodollar Rate with respect to any Eurodollar Advances
made on or after the date of any such determination until such time as such
situation is no longer the case and shall require any outstanding Eurodollar
Advances to be repaid.
6.3. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, conversion or otherwise
(except pursuant to Section 6.2), or a Eurodollar Advance is not made on the
date specified by the Company for any reason other than default by the Lenders,
the Company will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Advance (net of any cost or expense, unless Section 6.1, 6.5 or 6.6 is
applicable thereto, which the Lender would have incurred with respect to such
Eurodollar Advance had such prepayment or failure to fund not occurred).
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6.4. Lending Installations. Each Lender may book its Loans at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
or facsimile notice to the Administrative Agent and the Company, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made. To the extent reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurodollar Loans to reduce any liability of the Company to such Lender under
Sections 6.1, 6.5 and 6.6 or to avoid the unavailability of a Rate Option under
Section 6.2, so long as such designation is not disadvantageous to such Lender
in the sole opinion of such Lender.
6.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments or the Loans made by such Lender is reduced to a
level below that which such Lender, or such controlling Person, as the case may
be, could have achieved but for the occurrence of any such circumstance (taking
into account such Person's policies as to capital adequacy), then, in any such
case upon notice from time to time by such Lender to the Company, the Company
shall immediately pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling Person for such reduction in rate of
return. A statement of such Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on the Company. In determining such
amount, such Lender may use any method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable.
6.6. Taxes. All payments by the Company and MW Petroleum of
principal of, and interest on, the Loans and all other amounts payable
hereunder and in connection herewith shall be made free and clear of and
without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any
nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Agent's or any Lender's, as
applicable, net income or receipts (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to
be made by the Company or MW Petroleum hereunder or under any Loan Document is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Company will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the
Administrative Agent or the relevant Agent or Lender evidencing such
payment to such authority; and
(c) pay to the Administrative Agent for the account of
the Agents and the Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each
Agent and Lender will equal the full amount such Agent or Lender would
have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Agent or any Lender,
with respect to any payment received by it hereunder or in connection herewith,
the relevant Agent or Lender may pay such Taxes and the Company will promptly
pay such additional amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by such Person after the
payment
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of such Taxes (including any Taxes on such additional amount) shall equal the
amount such Person would have received had not such Taxes been asserted.
If the Company fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Agents and Lenders, the required receipts or other required
documentary evidence, the Company shall indemnify the Agents and the Lenders
for any incremental Taxes, interest or penalties that may become payable by any
Agent or Lender as a result of any such failure. For purposes of this Section
6.6, a distribution hereunder by the Administrative Agent or any other Agent or
any Lender to or for the account of any Agent or Lender shall be deemed a
payment by the Company.
Notwithstanding the foregoing, if any Agent or any Lender not
incorporated or organized under the laws of the United States of America, or a
state thereof, fails to timely deliver the forms required to be delivered
pursuant to Section 6.8 in a situation in which timely delivery of such forms
would eliminate some or all requirements for withholding of United States
federal income taxes by the Company or MW Petroleum in connection with payments
under this Agreement or the other Loan Documents, then the Company shall not be
required to pay or reimburse to the Lender or Agent any amount in respect of
such Taxes withheld that would not have been required to be withheld if such
Lender or Agent had timely delivered such forms.
6.7. Lender Statements; Survival of Indemnity; Substitution of
Lenders; Limitation on Claims by Lenders. Each Agent and Lender shall deliver
to the Company and the Administrative Agent a written statement of such Agent
or Lender, as the case may be, as to the amount due, if any, under Sections
6.1, 6.3, 6.5 or 6.6. Such written statement shall set forth in reasonable
detail the calculations upon which such Agent or Lender, as the case may be,
determined such amount and shall be final, conclusive and binding on the
Company in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that
is the case or not. Unless otherwise provided herein, the amount specified in
the written statement shall be payable on demand after receipt by the Company
of the written statement. The obligations of the Company under Sections 6.1,
6.3, 6.5 and 6.6 shall survive payment of the Obligations and termination of
this Agreement. In the event that any Lender shall deliver to the Company and
the Administrative Agent a written statement as to an amount due under Section
6.1, 6.3, 6.5 or 6.6, the Company may, at its sole expense and effort, require
such Lender to transfer and assign, without recourse (in accordance with
Section 17.3) all of its interests, rights and obligations under this Agreement
to an assignee which shall assume such assigned obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other governmental authority, (ii) the Company shall have received a
written consent of the Administrative Agent and the Co-Agent in the case of an
entity that is not a Lender, which consent shall not be unreasonably withheld,
(iii) the Company or such assignee shall have paid to the assigning Lender in
immediately available funds the principal of and interest accrued to the date
of such payment on the Loans made by it hereunder and all other amounts owed to
it hereunder and the fee payable to the Administrative Agent pursuant to
Section 17.3(b) and (iv) that nothing in the foregoing is intended or shall be
construed as obligating any Lender to locate such an assignee. The Company
shall not be required to pay to any Lender any amount under Section 6.1, 6.3,
6.5, or 6.6 in respect of any time or period more than twelve months prior to
the time such Lender notifies or bills the Company of or for such amount.
6.8. Withholding Tax Exemption. At least five (5) Business Days
prior to the first date on which interest or fees are payable hereunder (but in
no event prior to the Effective Date) for the account of any Lender or any
Agent, each Lender or Agent that is not incorporated or organized under the
laws of the United States of America, or a state thereof, agrees that it will
deliver to each
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of the Company and the Administrative Agent two (2) duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender or Agent, as the case may be, is entitled to receive
payments under this Agreement and the Notes without deduction or withholding of
any United States federal income taxes. Each Lender or Agent which so delivers
a Form 1001 or 4224 further undertakes to deliver to each of the Company and
the Administrative Agent two (2) additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three (3)
successive calendar years for Form 1001 and one (1) calendar year for Form
4224) or becomes obsolete or after the occurrence of any event requiring a
change in the most recent forms so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Company
or the Administrative Agent, in each case certifying that such Lender or Agent,
as the case may be, is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender or Agent from duly completing and delivering any such form
with respect to it and such Lender or Agent, as the case may be, advises the
Company and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
ARTICLE VII
CONDITIONS PRECEDENT
7.1. Conditions of Effectiveness. The effectiveness of this
Agreement and the obligation of each Lender to make Loans hereunder, are
subject to the conditions precedent that the Company has furnished to the
Administrative Agent all of the following, each in form and substance
satisfactory to each of the Administrative Agent and the Co-Agent, and each
(except for the Notes, of which only one original of each type shall be signed
for each Lender) in sufficient number of duly executed signed counterparts (or
photocopies thereof) to provide one for the Administrative Agent, the Co-Agent,
the Collateral Agent and each Lender:
(i) Copies of the Articles of Incorporation
of each of the Company, MW Petroleum, and MWJR, together
with all amendments, and certificates of good standing, all
of the foregoing certified by the appropriate governmental
officer in their respective jurisdiction of incorporation
and, in the case of certificates of good standing, in each
jurisdiction in which its business is conducted.
(ii) Copies, certified by the Secretary or
Assistant Secretary of each of the Company and MW
Petroleum, of their respective By-Laws and of their
respective Board of Directors' resolutions (and resolutions
of other bodies, if any are deemed necessary by counsel for
either the Administrative Agent or the Co-Agent)
authorizing the execution, delivery and performance of the
Loan Documents.
(iii) Incumbency certificates, executed by
the Secretary or Assistant Secretary of each of the Company
and MW Petroleum, which shall identify by name and title
and bear the signature of the officers of the Company and
MW Petroleum, respectively, authorized to sign the Loan
Documents and (in the case of the Company) to make
borrowings hereunder, upon which certificate the Agents and
the Lenders shall be entitled to rely until informed of any
change in writing by the Company or MW Petroleum,
respectively.
(iv) Written opinions of the Company's, MW
Petroleum's and MWJR's counsel acceptable to the
Administrative Agent and the
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Co-Agent, addressed to the Agents and the Lenders in
substantially the form of Exhibit "B" hereto, with such
modifications, additions, alterations, exceptions,
assumptions and provisions as shall be acceptable to the
Administrative Agent and the Co-Agent.
(v) The Notes payable to the order of each
of the Lenders.
(vi) A certificate of an Authorized Officer
of the Company, satisfactory to the Administrative Agent
and the Co-Agent, regarding insurance maintained by the
Company.
(vii) The Acknowledgment to Guaranty of MW
Petroleum.
(viii) The opinion of Mayer, Brown & Platt,
special counsel to the Administrative Agent and the Co-
Agent, substantially in the form of Exhibit "G" hereto,
with such modifications, additions, alterations,
exceptions, assumptions and provisions as shall be
acceptable to the Administrative Agent and the Co-Agent.
(ix) The Effectiveness Notice.
(x) A certificate, signed by the Vice
President/Treasurer of the Company, stating that on the
Effective Date no Default or Unmatured Default has occurred
and is continuing.
Such other instruments and documents as any of the Administrative
Agent or the Co-Agent or its counsel may have reasonably requested.
The effectiveness of this Agreement and the obligation of each Lender to make
Loans hereunder, are further conditioned upon satisfaction of the following on
or prior to the Effective Date:
(a) The Administrative Agent shall have received, for
the account of each Lender, the participation fee described in Section
2.5(b).
(b) The Administrative Agent shall have received the
fees to be received on or prior to the Effective Date as set forth in
the agreement with respect to fees described in Section 2.5(c).
7.2. Each Advance. The Lenders shall not be required to make
any Advance unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in
Article VIII, including in Sections 8.3 and 8.7, or contained in any
other Loan Document are true and correct as of such Borrowing Date
except for changes in the Schedules hereto reflecting transactions
permitted by this Agreement.
(c) All legal requirements arising under or in
connection with the Loan Documents or applicable laws, rules or
regulations and incident to the making of such Advance shall be
satisfactory to the Administrative Agent and the Co- Agent and their
respective counsel.
(d) No event, occurrence, action, inaction or other
item shall have occurred which could have or could cause a Material
Adverse Effect.
Each Borrowing Notice, Competitive Bid Borrowing Notice and
Continuation/Conversion Notice with respect to each Advance shall constitute a
representation and warranty by the Company that the conditions contained in
Sections 7.2(a) and 7.2(b) have been satisfied and, that after giving effect to
such Advance and the assignment or application of the proceeds thereof, the
outstanding Loans will not exceed the Aggregate Commitment.
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7.3. (Intentionally Omitted.)
7.4. Exchange of Notes. Upon the satisfaction by the Company of
the conditions in Sections 7.1 and 7.2, each Lender shall deliver to the
Company the revolving Note delivered to such Lender pursuant to the April 1992
Agreement, each such revolving Note to be marked "amended, renewed and
extended."
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders and the Agents that:
8.1. Corporate Existence and Standing. The Company is a
corporation, and each Subsidiary is a corporation or other legal entity, in
either case duly incorporated or otherwise properly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority, permits and approvals, and is in
good standing to conduct its business in each jurisdiction in which its
business is conducted.
8.2. Authorization and Validity. The Company and each
Subsidiary has the corporate or partnership power and authority and legal right
to execute and deliver the Loan Documents and to perform its respective
obligations thereunder. The execution and delivery by the Company and each
Subsidiary of the Loan Documents to which it is a party and the performance of
its obligations thereunder have been duly authorized by proper corporate or
partnership proceedings, and the Loan Documents have been duly executed and
delivered and constitute legal, valid and binding obligations of the Company
and each Subsidiary enforceable against the Company and each Subsidiary in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
8.3. No Conflict; Government Consent. Neither the execution and
delivery by the Company and each Subsidiary of the Loan Documents nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Company or any Subsidiary
or the Company's or any Subsidiary's articles of incorporation or by-laws or
partnership agreement or the provisions of any indenture, instrument or
agreement to which the Company or any Subsidiary is a party or is subject, or
by which it, or its property, is bound, or conflict with or constitute a
default thereunder, or result in the creation or imposition of any Lien in, of
or on all or any part of the property of the Company or any Subsidiary. No
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
8.4. Financial Statements. The consolidated financial
statements of the Company dated December 31, 1993 heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition of the Company and the
Subsidiaries at such date and the consolidated results of their operations for
the period then ended.
8.5. Material Adverse Change. Since December 31, 1993, there
has been no change in the business, assets, properties, operations, condition
(financial or otherwise) or results of operations or prospects of the Company
and its Subsidiaries or MW Petroleum and its Subsidiaries or any legal or
regulatory development which could have or be a Material Adverse Effect.
8.6. Taxes. The Company and the Subsidiaries have filed all
United States federal tax returns and all other tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any
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assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves
have been provided. The United States income tax returns of the Company and
the Subsidiaries (other than MW Petroleum and MWJR) have been audited by the
Internal Revenue Service or, if no audit was performed, the statute of
limitations permitting such an audit has run, through the fiscal year ended
December 31, 1982. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. The charges, accruals and reserves on
the books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
8.7. Litigation and Contingent Obligations. There is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting the Company or any Subsidiary which is or could have a Material
Adverse Effect. The Company and its Subsidiaries have no material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 8.4.
8.8. Subsidiaries. Schedule 8.8 hereto contains an accurate
list of all of the presently existing Subsidiaries of the Company as of the
date of this Agreement, setting forth their respective jurisdictions of
incorporation or organization and the percentage of their respective capital
stock or, the revenue share attributable to the general and limited partnership
interests, as the case may be, owned by the Company or other Subsidiaries. All
of the issued and outstanding shares of capital stock of such Subsidiaries
which are corporations have been duly authorized and issued and are fully paid
and non-assessable.
8.9. ERISA. The Unfunded Liabilities of all Plans do not in the
aggregate exceed $5,000,000. Each Plan complies in all material respects with
all applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, neither the Company nor any other members of
the Controlled Group has withdrawn from any Plan or initiated steps to do so,
and no steps have been taken to terminate any Plan.
8.10. Accuracy of Information. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
8.11. Regulation-U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Company and the Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
8.12. Material Agreements. Neither the Company nor any
Subsidiary is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in (i) any agreement to
which it is a party, which default might have a Material Adverse Effect or (ii)
any agreement or instrument evidencing or governing Indebtedness.
8.13. Compliance With Laws. The Company and the Subsidiaries
have complied in all material respects with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Properties.
Neither the Company nor any of the Subsidiaries has received any notice to the
effect that it, its operations or the Properties are not in material compliance
with any of the requirements of applicable federal, state or local
environmental, health and safety statutes and regulations, or are the subject
of any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance
into the environment, whether from the Properties or elsewhere, which in any
case would have a Material Adverse Effect.
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8.14. Title to Properties. Each of the Company and the
Subsidiaries has legal, valid and defensible title to substantially all of its
properties and assets and valid and defensible title, whether legal or
beneficial, to all of its properties and assets, free and clear of any and all
Liens other than those Liens permitted by Section 11.5. The 1994 Engineers'
Report refers to and covers all of the reserves in the Properties as of the
Effective Date and such Report covers no reserves other than in such
Properties.
8.15. Investment Company Act. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.16. Public Utility Holding Company Act. Neither the Company
nor any Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
8.17. Subordinated Indebtedness. The Obligations constitute
senior indebtedness which is entitled to the benefits of the subordination
provisions of all outstanding Subordinated Indebtedness.
8.18. Post-Retirement Benefits. The present value of the
expected cost of post-retirement medical and insurance benefits payable by the
Company and its Subsidiaries to its employees and former employees, as
estimated by the Company in accordance with reasonable procedures and
assumptions deemed reasonable by the Required Lenders, does not exceed
$2,000,000.
8.19. Solvency. As of the Effective Date, (i) the Company and
its Consolidated Subsidiaries are each solvent and (ii) International and its
Subsidiaries on a consolidated basis is solvent.
8.20. Environmental Warranties. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of
Environmental Laws on the business, operations and Properties of the Borrower
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including any capital or operating
expenditures required for clean-up or closure of Properties presently owned or
operated, any capital or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis of this
review, the Borrower has reasonably concluded that, except as disclosed in
writing by the Company to the Lenders and the Agents, to the best of its
knowledge after due inquiry:
(a) all facilities and property (including underlying
groundwater) owned, leased or operated by the Company or any
Subsidiary have been, and continue to be, owned, leased or operated by
the Company or any Subsidiary in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending
or threatened
(i) claims, complaints, notices or
inquiries to, or requests for information received by, the
Company or any Subsidiary with respect to any alleged
violation of any Environmental Law, that, singly or in the
aggregate, have or may reasonably be expected to have a
Material Adverse Effect, or
(ii) claims, complaints, notices or
inquiries to, or requests for information received by, the
Company or any Subsidiary regarding potential liability
under any Environmental Law or under any common law
theories relating to operations or the
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condition of any facilities or property (including
underlying groundwater) owned, leased or operated by the
Company or any Subsidiary that, singly or in the aggregate,
have, or may reasonably be expected to have a Material
Adverse Effect;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or previously owned or leased by the
Company or any Subsidiary that, singly or in the aggregate, have, or
may reasonably be expected to have, a Material Adverse Effect;
(d) the Company and each Subsidiary have been issued
and are in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to environmental
matters and necessary or desirable for their businesses;
(e) no property now or previously owned, leased or
operated by the Company or any Subsidiary is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, or, to the
extent that such listing may, singly or in the aggregate, have, or may
reasonably be expected to have a Material Adverse Effect, on the
CERCLIS or on any other federal or state list of sites requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned, leased or operated by the Company or any
Subsidiary that, singly or in the aggregate, have, or may reasonably
be expected to have, a Material Adverse Effect;
(g) none of the Company or any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, or, to the
extent that such listing may, singly or in the aggregate, have, or may
reasonably be expected to have a Material Adverse Effect, on the
CERCLIS or on any federal or state list or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to material claims against the Company or such
Subsidiary for any remedial work, damage to natural resources or
personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls,
radioactive materials or friable asbestos present at any property now
or previously owned or leased by the Company or any Subsidiary that,
singly or in the aggregate, have, or may reasonably be expected to
have, a Material Adverse Effect; and
(i) no condition exists at, on or under any property
now or previously owned or leased by the Company or any Subsidiary
which, with the passage of time, or the giving of notice or both,
would give rise to material liability under any Environmental Law
that, singly or in the aggregate have, or may reasonably be expected
to have a Material Adverse Effect.
ARTICLE IX
AFFIRMATIVE COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
9.1. Financial Reporting. The Company will maintain a system of
accounting established and administered in accordance with generally accepted
accounting principles, and furnish to the Lenders:
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(a) As soon as available and in any event within 90
days after the close of each of its fiscal years, an unqualified audit
report certified by independent certified public accountants,
acceptable to the Required Lenders, prepared in accordance with
generally accepted accounting principles on a consolidated basis for
itself and its Consolidated Subsidiaries, including balance sheets as
of the end of such period, related profit and loss and reconciliation
of surplus statements, and a statement of cash flows, accompanied by a
certificate of said accountants to the effect that, in the course of
their examination necessary for their certification of the foregoing,
they have obtained no knowledge of any Default or Unmatured Default,
or if, in the opinion of such accountants, any Default or Unmatured
Default shall exist, stating the nature and status thereof.
(b) As soon as available and in any event within 45
days after the close of the first three quarterly periods of each of
its fiscal years, for itself and the Consolidated Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
period and consolidated profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter.
(c) Together with the financial statements required
under clauses (a) and (b), a compliance certificate in substantially
the form of Exhibit "C" hereto signed by its vice president/treasurer
and addressing the matters set forth therein.
(d) Promptly after December 31 of each calendar year,
commencing December 31, 1994, and in any event not later than March 15
of the next succeeding calendar year, an Approved Engineers' Report
prepared as of December 31 of such calendar year, in form and
substance satisfactory to the Administrative Agent and the Co-Agent.
(e) Within 45 days in the case of a Company's
Engineers' Report and 60 days in the case of an Approved Engineers'
Report, of any request by the Required Lenders in connection with any
(other than the scheduled semi-annual redeterminations of the
Borrowing Base) determination of the Borrowing Base pursuant to
Section 2.3(a), an Approved Engineers' Report or a Company's
Engineers' Report, as the case may be, prepared as of the date of such
request, in form and substance satisfactory to the Required Lenders.
(f) Promptly after June 30 of each calendar year and
in any event not later than September 15 of such calendar year, a
Company's Engineers' Report prepared as of June 30 of such calendar
year, in form and substance satisfactory to the Administrative Agent
and the Co-Agent.
(g) Promptly upon the furnishing thereof to the
shareholders of the Company copies of all financial statements,
reports and proxy statements so furnished.
(h) Promptly upon the filing thereof, copies of all
publicly available registration statements and annual, quarterly,
monthly or other regular reports which the Company or any Subsidiary
(other than a Drilling Partnership) or any other Affiliate files with
the Securities and Exchange Commission.
(i) Promptly after December 31 of each calendar year,
commencing December 31, 1994, and in any event no later than March 21
of the next succeeding calendar year, a budget (including specific
capital expenditures information) through the year 2000 for the
Company and its Subsidiaries certified by the Vice President/Treasurer
of the Company and in a format consistent with the Projections and
otherwise in form and substance satisfactory to the Administrative
Agent and the Co-Agent.
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(j) At the request of the Administrative Agent or the
Co-Agent, or the Required Lenders promptly after June 30 of each
calendar year, commencing June 30, 1994, and in any event prior to
October 1 of such calendar year, an update of the budget described in
clause (i) of this Section 9.1 in form and substance satisfactory to
the Administrative Agent and the Co-Agent and signed by the Vice
President/Treasurer of the Company.
(k) Promptly and in any event within 40 days after the
close of each calendar quarter during each year, a certificate of an
Authorized Officer certifying to the Agent and the Lenders the
Debt/Capitalization Ratio and the calculation thereof as of the last
day of the immediately preceding calendar quarter.
(l) Such other information (including engineering,
financial and non-financial information) as the Administrative Agent
or the Co-Agent or any Lender may from time to time reasonably
request.
9.2. Use of Proceeds. The Company will, and will cause each
Subsidiary to, use the proceeds of the Loans (i) to refinance existing
Indebtedness of the Company and the Subsidiaries, or (ii) for the Company's and
the Subsidiaries' general corporate purposes.
9.3. Notice of Default, Unmatured Default, Litigation and
Material Adverse Effect. The Company will give prompt notice in writing to the
Lenders and to MW Petroleum of (i) the occurrence of any Default or Unmatured
Default and the steps, if any, being taken to cure it, (ii) the occurrence of
any adverse development with respect to any labor controversy, litigation,
action or proceeding described in Section 8.7, or the commencement of any
labor, controversy, litigation, action or proceeding of the type described in
Section 8.7 together with copies of all material pleadings relating thereto,
and (iii) the occurrence of any other development, financial or otherwise,
which might have or be a Material Adverse Effect or might materially adversely
affect the ability of the Company to repay the Obligations.
9.4. Conduct of Business. The Company will, and will cause its
Subsidiaries to, carry on and conduct its respective business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and, except to the extent permitted by Section 11.2, will,
and will cause each Subsidiary to, do all things necessary to remain duly
incorporated or organized, validly existing and in good standing as a domestic
corporation or partnership, as the case may be, in its jurisdiction of
incorporation or organization and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
9.5. Taxes. The Company will, and will cause each Subsidiary
to, pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or property, and all lawful claims which, if
unpaid, might become a Lien upon any properties of the Company or any
Subsidiary, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves in accordance with
generally accepted accounting principles have been set aside on its books.
9.6. Insurance. The Company and its Subsidiaries will maintain,
with financially sound and reputable insurers, insurance with respect to their
respective properties and business against such liabilities, casualties, risks
and contingencies and in such types and amounts as customary in the case of
corporations engaged in the same or similar businesses and similarly situated.
Upon the request of the Administrative Agent, the Company will furnish or cause
to be furnished to the Administrative Agent from time to time a summary of the
insurance coverage of the Company and its Subsidiaries in form and substance
satisfactory to the Required Lenders in their reasonable judgment, and, if
requested, will furnish the Administrative Agent copies of the applicable
policies. In the case of any fire, accident or other casualty causing loss or
damage to any property of the Company or any of its Subsidiaries, the proceeds
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of such policies will be used (i) to repair or replace the damaged property or
(ii) to prepay the Obligations, at the election of the Company.
9.7. Compliance with Laws. The Company will, and will cause
each Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
9.8. Maintenance of Properties. The Company will and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
9.9. Inspection. The Company will, and will cause each
Subsidiary to, permit the Lenders, by their respective representatives and
Agents, to inspect any of the properties, corporate books and financial records
of the Company and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Company and each Subsidiary, and to
discuss the affairs, finances and accounts of the Company and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Lenders may designate. Any information
received by the Lenders as a result of the foregoing shall be included in
information subject to the confidentiality provisions set forth in Exhibit "J"
hereto.
9.10. Operation of Properties. The Company will, and will cause
each Subsidiary owning Properties included in the Borrowing Base to, preserve,
operate and maintain, or cause to be preserved, operated and maintained, the
Properties in a good and workmanlike manner continuously to their economic
limit as a prudent operator in accordance with good oil and gas industry
standards.
9.11. (Intentionally Omitted.)
9.12. Environmental Covenant. The Company will, and will cause
each of its Subsidiaries to,
(a) use, operate and maintain all of its facilities
and properties in material compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable Environmental
Laws;
(b) (i) promptly notify the Administrative Agent and
provide copies upon receipt of all material written claims,
complaints, notices, liens or inquiries relating to the condition of
its facilities and properties or compliance with Environmental Laws,
(ii) within ninety (90) days have dismissed with prejudice any actions
or proceedings relating to compliance with Environmental Laws which
would or could in the reasonable opinion of the Administrative Agent
and the Co-Agent have a Material Adverse Effect; and (iii) diligently
pursue cure of any material underlying environmental problem which
forms the basis of any such claim, complaint, notice, lien, inquiry,
proceeding or action; and
(c) provide such information and certifications which
the Administrative Agent or the Co-Agent may reasonably request from
time to time to evidence compliance with this 9.12.
9.13. (Intentionally Omitted.)
9.14. (Intentionally Omitted.)
9.15. Further Assurances; Other Matters.
(a) Further Assurances. The Company will cure and
will cause its respective Subsidiaries to cure promptly any defects in
the creation and issuance of any Obligations and the execution and
delivery of any
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Guaranty. The Company and each Subsidiary will at its expense
promptly execute and deliver to the Collateral Agent upon request all
such other and further reasonable documents, agreements and
instruments in compliance with, or accomplishment of, the covenants
and agreements of the Company and such Subsidiary in any Loan
Document.
(b) Other Matters. The Company shall use reasonable
efforts to take or cause to be taken all necessary steps and actions,
including in the case of Subsidiaries obtaining all necessary
shareholder approvals and making all filings with any governmental
agencies, or in the case of an Affiliate, all legal steps necessary to
consummate either the merger or dissolution, as the case may be, of
the associated entities to consolidate and simplify the U.S.
exploration and production operations and property ownership
structure. Concurrently therewith the Company (i) shall expressly
assume, pursuant to agreements in form and substance satisfactory to
the Administrative Agent, the Collateral Agent and the Co- Agent, all
obligations of any merged or dissolved entity under and in connection
with the Loan Documents, (ii) shall execute and deliver or cause to be
executed and delivered any board resolutions, legal opinions, title
opinions and other instruments and documents as the Collateral Agent
or the Administrative Agent or the Co-Agent shall require, including
any amendment to the Guaranty in form and substance satisfactory to
the Collateral Agent, and (iii) shall make any recordings, file any
notices or obtain any consents, all as may be necessary or appropriate
in connection therewith.
9.16. Repayment. The Company shall pay to each of Banque
Indosuez and Norwest Bank Denver, N.A., on the Effective Date, an amount equal
to the unpaid principal and accrued interest on all 1992 Revolving Loans made
by Banque Indosuez and Norwest Bank Denver, N.A., respectively, to the Company
which are outstanding on the Effective, plus all fees, costs (including,
without limitation, costs resulting from the repayment of such 1992 Revolving
Loans prior to the last day of the applicable Interest Period thereof, as more
fully described in Section 6.3 of the April 1992 Agreement) and expenses
payable to Banque Indosuez and Norwest Bank Denver, N.A. under the April 1992
Agreement, which amounts shall be promptly delivered by the Administrative
Agent to Banque Indosuez and Norwest Bank Denver, N.A. at the address specified
pursuant to Article XVIII of the April 1992 Agreement or at any other address
specified in a notice received by the Administrative Agent from Banque Indosuez
or Norwest Bank Denver, N.A. The Lenders and the Agents hereby consent to such
repayment.
ARTICLE X
FINANCIAL COVENANTS
10.1. (Intentionally Omitted.)
10.2. Consolidated Tangible Net Worth. The Company will maintain
Consolidated Tangible Net Worth of not less than the sum of (i) $350,000,000,
plus (ii) the product of 0.50 times the sum of Consolidated Net Income for each
calendar quarter subsequent to the calendar quarter ending June 30, 1991 during
which Consolidated Net Income is greater than $0, plus (iii) the product of
0.50 times the proceeds of the sale by the Company and its Subsidiaries of
securities (other than securities constituting Indebtedness) net of reasonable
incidental, brokerage and legal costs actually paid to third parties.
10.3. Ratio of EBITDDA to Consolidated Interest. The Company
shall not permit the ratio of (i) EBITDDA to (ii) Consolidated Interest Expense
for any four consecutive calendar quarters ending on the last day of any
calendar quarter to be less than 3.70 to 1.0.
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ARTICLE XI
NEGATIVE COVENANTS
11.1. Indebtedness. The Company will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) The Obligations arising under the Loan Documents,
Contingent Obligations permitted under Section 11.4 and Indebtedness
of International or HERC pursuant to Investments by the Company
permitted by Section 11.12(e);
(b) Indebtedness existing on the date hereof and
described in Schedule 11.1 hereto;
(c) Other Indebtedness of the Company or any
Subsidiary consented to by the Required Lenders in the exercise of
their sole discretion having no conditions precedent or covenants or
defaults more onerous to the Company or such Subsidiary than the
conditions precedent and covenants and defaults contained herein and
which is expressly made subordinate and junior in right of payment to
the Obligations and which contains terms (including interest rates,
amortization and maturity) and provisions satisfactory to the Required
Lenders in the exercise of their sole discretion;
(d) Other Indebtedness of the Company or any
Subsidiary consented to by the Required Lenders in the exercise of
their sole discretion and constituting Limited Recourse Indebtedness,
provided that such Limited Recourse Indebtedness contains terms
(including interest rates, amortization and maturity) and provisions
satisfactory to the Required Lenders in the exercise of their sole
discretion;
(e) Other Indebtedness of the Company or any
Subsidiary, consented to by the Required Lenders in the exercise of
their sole discretion having no conditions precedent or covenants or
defaults more onerous to the Company or such Subsidiary than the
conditions precedent and covenants and defaults contained herein and
which contains terms (including interest rates, amortization, maturity
and the application of the proceeds thereof) and provisions
satisfactory to the Required Lenders in the exercise of their sole
discretion;
(f) Indebtedness of the type referred to in clause
(vi) of the definition of Indebtedness;
(g) Indebtedness of the type referred to in clause
(vii) of the definition of Indebtedness, provided such Indebtedness is
otherwise permitted pursuant to Section 11.13;
(h) Additional Indebtedness of the Company not
included in the foregoing clauses (a) through (g) in an aggregate
principal amount not exceeding $20,000,000, exclusive of any
Contingent Obligations permitted under Section 11.4;
provided, that if the Company shall request that any Indebtedness be permitted
as Subordinated Indebtedness pursuant to clause (c), as Limited Recourse
Indebtedness pursuant to clause (d), or as Indebtedness pursuant to clause (e),
the Administrative Agent or the Co-Agent shall notify the Company that it or
they, as the case may be, deem such request by the Company to be a request for
a redetermination of the Borrowing Base pursuant to Section 2.3(b), in which
event the Company shall supply such information and reports provided pursuant
to such Section 2.3(b) and the Administrative Agent, the Co-Agent and the
Required Lenders shall make a determination of the Borrowing Base in accordance
with the provisions of Section 2.3(a), giving effect to such requested
Indebtedness. For purposes hereof, "Limited Recourse Indebtedness" shall mean
Indebtedness of a Person for which there is no recourse whatsoever to such
Person for the repayment thereof other than recourse limited to the cash flow
from the assets constituting collateral therefor and recourse to the extent
necessary to enable amounts to be claimed in respect of such Indebtedness upon
an enforcement of any Lien on any such assets; provided that (a) the extent of
such recourse is limited solely to the amount of any recoveries made on any
such enforcement, (b) such Person is not
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entitled, by virtue of any right or claim arising out of or in connection with
such Indebtedness to commence proceedings for the winding up or dissolution of,
or to appoint or procure the appointment of any receiver, trustee or similar
person or official in respect of, such Person or any of its assets (other than
the assets the subject of such Lien) and (c) except as provided in the
foregoing (a) and (b), neither the Company nor any Subsidiary shall have any
contingent liability in respect thereof other than Contingent Obligations
permitted pursuant to Section 11.4.
11.2. Merger. The Company will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person or Persons
except that notwithstanding the foregoing, a Subsidiary may merge into the
Company and a Subsidiary (other than MW Petroleum) may merge into a
Wholly-Owned Subsidiary; provided, however that the foregoing shall not
prohibit mergers or consolidations in any calendar year not in excess of five
percent (5%) of the consolidated total assets of the Company and its
Consolidated Subsidiaries immediately prior to the initial such merger or
consolidation during such calendar year if (i) the Company or such Subsidiary,
as the case may be, is the surviving entity of such merger (and if a merger
between the Company and any Subsidiary, the Company is the surviving entity)
and (ii) after giving effect to such merger or consolidation, no Default or
Unmatured Default shall occur and be continuing.
11.3. Sale of Assets. The Company will not, nor will it permit
any Subsidiary to, lease, sell, transfer, convey, assign, issue or otherwise
dispose of any of its property, assets (including stocks or partnership
interests in or of any Subsidiary) or business to any other Person, whether in
one transaction or in a series of transactions, except:
(i) Sales of Hydrocarbon inventory and
severed oil and gas in the ordinary course of business.
(ii) Sales of Properties (other than
Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) or other assets with a fair
market value not in excess of $10,000,000 for all such
Sales permitted pursuant to this clause (ii) during any
consecutive six-month period.
(iii) Sales of Properties (other than sales
of Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) having a fair market value not
in excess of $50,000,000 in the aggregate for all such
Sales during any period occurring between successive dates
of determination of the Borrowing Base pursuant to Section
2.3; provided, however, that concurrently with any such
Sale the Borrowing Base shall be reduced pursuant to
Section 2.3(f), and the Company shall make any mandatory
prepayment required pursuant to Section 4.2(b).
(iv) Sales of Properties (other than sales
of Hydrocarbon inventory and severed oil and gas in the
ordinary course of business) not described in the foregoing
clause (ii) or (iii) if the Required Lenders give prior
written consent to such Sale in the exercise of their sole
discretion; provided, however, that concurrently with any
such Sale the Borrowing Base shall be reduced pursuant to
Section 2.3(f) and the Company shall make a mandatory
prepayment pursuant to Section 4.2(d).
(v) Sales of assets (other than sales of
Hydrocarbon inventory and severed oil and gas in the
ordinary course of business and other than assets
constituting Properties) if the Required Lenders give prior
written consent to such Sale in the exercise of their sole
discretion.
(vi) The issuance by the Company of common
stock.
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(vii) A transfer, conveyance or assignment to
the Company of Properties as a result of the winding up and
liquidation of a Drilling Partnership.
(viii) A transfer, conveyance or assignment to
the Company or a Subsidiary of Properties as a result of a
merger permitted pursuant to Section 11.2.
Anything herein contained to the contrary notwithstanding, the Company will
not, nor will it permit any Subsidiary to, consummate any Sale otherwise
permitted hereunder if it receives therefor consideration other than cash or
other consideration readily convertible to cash or which is less than the fair
market value of the relevant property or asset.
11.4. Contingent Obligations. The Company will not, nor will it
permit any Subsidiary to, make or suffer to exist any Contingent Obligation
(including, without limitation, any Contingent Obligation with respect to the
obligations of a Subsidiary) in an aggregate amount for all such Persons and
Contingent Obligations as of any date of determination in excess of $30,000,000
except (a) by endorsement of instruments for deposit or collection in the
ordinary course of business, (b) any Contingent Obligation pursuant to any of
the Loan Documents, (c) Contingent Obligations in respect of Apache Offshore
Investment Partnership or Offshore outstanding as of the Effective Date or in
replacement of such outstanding Contingent Obligations pursuant to the facility
described in item 1 of Schedule 11.1, and not exceeding in the aggregate the
lesser of (i) $40,000,000 or (ii) the greater of (A) $23,000,000 or (B) the
present value (discounted at 10%) of Apache Offshore Investment Partnership's
proved reserves as shown in the most recent Form 10-K filed with the Securities
and Exchange Commission, (d) net Contingent Obligations of International
consisting of foreign work commitments or other similar obligations under
exploration or production licenses or agreements entered into by International
in the ordinary course of business not to exceed net at any one time
outstanding for all such Contingent Obligations of $60,000,000; provided that
for purposes of this clause (d), net Contingent Obligations shall be deemed to
be the difference between the aggregate for all such Contingent Obligations in
respect of foreign work commitments or other similar obligations less the
aggregate of such Contingent Obligations in respect of which another industry
partner (which the Company reasonably believes is capable of performing such
commitments or obligations) has become obligated to perform, (e) Contingent
Obligations in the form of Indebtedness of the type referred to in clause vii
of the definition of Indebtedness; provided such Contingent Obligations are
otherwise permitted pursuant to Section 11.13; (f) Contingent Obligations in
support of Indebtedness of the type referred to in clause vii of the definition
of Indebtedness, in an aggregate amount as of any date of determination not in
excess of $30,000,000; and (g) any Contingent Obligations pursuant to
Indebtedness of the type referred to in clause (vi) of the definition of
Indebtedness.
11.5. Liens. The Company will not, nor will it permit any
Subsidiary or Affiliate to, create, incur, or suffer to exist any Lien in, of
or on (i) any of the Company's, the Subsidiaries' and the Affiliates'
consolidated assets, revenues and properties securing an amount greater than
$5,000,000 in the aggregate for all such Liens or (ii) any of the Properties,
except in either case:
(a) Liens for taxes, assessments or governmental
charges or levies on its property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books.
(b) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure obligations not more than
60 days past due or which are being contested in good faith by
appropriate proceedings and for which
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adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books.
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(d) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Company,
the Subsidiaries or the Affiliates, as the case may be.
(e) Liens existing on the date hereof described in
Schedule 11.1 and securing the Indebtedness described in Schedule 11.1
hereto or otherwise permitted in connection with Indebtedness of the
type described in Section 11.1(d) consented to by the Required Lenders
in the exercise of their sole discretion.
(f) Liens arising under operating agreements in
respect of obligations which are not yet due or which are being
contested in good faith by appropriate proceedings.
(g) Liens reserved in oil, gas and/or mineral leases
for bonus or rental payments and for compliance with the terms of such
leases.
(h) Liens pursuant to partnership agreements, oil, gas
and/or mineral leases, farm-out agreements, division orders, contracts
for the sale, purchase, exchange, or processing of oil, gas and/or
other hydrocarbons, unitization and pooling declarations and
agreements, operating agreements, development agreements, area of
mutual interest agreements, and other agreements which are customary
in the oil, gas and other mineral exploration, development and
production business and in the business of processing of gas and gas
condensate production for the extraction of products therefrom.
(i) Liens on Properties owned by Offshore arising out
of the facility described in item 1 of Schedule 11.1.
11.6. (Intentionally Omitted.)
11.7. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) the Company will not declare, pay or make any
dividend or distribution (in cash, property or obligations) on any
shares of any class of capital stock (now or hereafter outstanding) of
the Company or on any warrants, options or other rights with respect
to any shares of any class of capital stock (now or hereafter
outstanding) of the Company (other than dividends or distributions
payable in its common stock or warrants to purchase its common stock
or splitups or reclassifications of its stock into additional or other
shares of its common stock) or apply, or permit any of its
Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of any shares
of any class of capital stock (now or hereafter outstanding) of the
Company except that if (i) no Default or Unmatured Default shall have
occurred and be continuing (ii) the Company's Consolidated Tangible
Net Worth (after giving effect to any dividends or distributions to be
made) is not less than the sum of (w) $350,000,000, plus (x) the
product of 0.50 times the sum of Consolidated Net Income for each
calendar quarter subsequent to the calendar quarter ending June 30,
1991 during which Consolidated Net Income is greater than $0 plus (y)
the product of 0.50 times the proceeds of the sale by the Company and
the Subsidiaries of securities (other than securities constituting
Indebtedness) net of reasonable incidental, brokerage and legal costs
actually paid to third
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parties, plus (z) $50,000,000, and (iii) if the Company shall not then
be obligated to make a mandatory prepayment pursuant to Section
4.2(a), the Company may declare and pay or make dividends and
distributions on the capital stock of the Company.
(b) (Intentionally Omitted.)
(c) the Company will not and will not permit any of
its Subsidiaries to make any optional payment or prepayment on, or
redemption of, or redeem, purchase or defease prior to its stated
maturity, any Indebtedness other than Indebtedness incurred under this
Agreement, the other Loan Documents or Indebtedness of Offshore;
provided with respect to Indebtedness of Offshore, that the optional
payment or prepayment be made with proceeds of the facility described
in item 1 of Schedule 11.1;
(d) the Company will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing purposes;
provided, that notwithstanding the foregoing clause (c), the Company shall be
permitted to make an optional payment or prepayment on, or redeem, purchase or
defease Subordinated Indebtedness or any other Indebtedness of itself or its
Subsidiaries so long as the Debt/Capitalization Ratio following such payment,
repayment, redemption, purchase or defeasance is less than .45 to 1.0.
11.8. Rental Obligations. The Company will not, and will not
permit any of its Subsidiaries to, enter into at any time any arrangement
(other than oil, gas and mineral leases and leases of rights-of-way and
easements and other than short-term operating equipment rental arrangements)
which does not create a Capitalized Lease Obligation and which involves the
leasing by the Company or any of its Subsidiaries from any lessor of any real
or personal property (or any interest therein), except arrangements which,
together with all other such arrangements which shall then be in effect, will
not require the payment of an aggregate amount of rentals by the Company and
its Subsidiaries in excess of (excluding escalations resulting from a rise in
the consumer price or similar index) $10,000,000 for any calendar year;
provided, however, that any calculation made for purposes of this Section shall
exclude any amounts required to be expended for normal maintenance and repairs,
insurance, taxes, assessments, and other similar charges.
11.9. Transactions with Affiliates. The Company will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
unless such arrangement is fair and equitable to the Company or such
Subsidiary, as the case may be, and is not of a sort which would not be entered
into by a prudent Person in the position of the Company or such Subsidiary
with, or which is on terms which are less favorable than are obtainable from,
any Person which is not one of its Affiliates.
11.10. Negative Pledges, etc. The Company will not, and will not
permit any of its Subsidiaries to, enter into, on or at any time after the
Effective Date, any agreement (excluding this Agreement and any other Loan
Document) directly or indirectly prohibiting the creation, assumption or
perfection of any Lien upon its properties, revenues or assets, whether now
owned or hereafter acquired, restricting any loans, advances or other
Investments to or in the Company or any of its Subsidiaries, restricting the
capitalization of the Company or any Subsidiary, restricting the ability of any
Subsidiary to make dividend payments or other distributions or payments (by way
of dividends, advances, repayments of loans or advances, reimbursements or
otherwise) or restricting the ability of the Company or any Subsidiary to amend
or otherwise modify this Agreement or any other Loan Document.
11.11. Regulation U Acquisitions. The Company will not, nor will
it permit any Subsidiary to, use any of the proceeds of the Loans to purchase
or carry any "margin stock" (as defined in Regulation U) or to make any
Acquisition except (i) Acquisitions not involving "margin stock", where such
Acquisition shall have been approved or consented to by the board of directors
or similar
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governing entity of the Person being acquired; (ii) Acquisitions involving
"margin stock" where such Acquisitions shall have been approved or consented to
by the board of directors or similar governing entity of the Person being
acquired and (iii) Acquisitions of not more than 15% of the outstanding equity
securities of any issuer, whether or not such securities are "margin stock";
provided, however, that the amount paid by the Company to consummate all
Acquisitions of the type described in clauses (ii) and (iii) shall not exceed
$15,000,000 in the aggregate.
11.12. Investments. The Company will not, and will not permit any
of its Subsidiaries to make, incur, assume or suffer to exist any Investment in
any other Person, except:
(a) Investments existing on the Effective Date and
identified in Schedule 11.12;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 11.1 and Investments permitted as
Contingent Obligations pursuant to Section 11.4;
(d) in the ordinary course of business, Investments
(other than the contribution of Hydrocarbon Interests) by the Company
in MW Petroleum;
(e) in the ordinary course of business, (i)
Investments by the Company in International, HERC or HEL (or by HERC
in HEL) not to exceed $15,000,000 in the aggregate for all such
Investments made, incurred or assumed in any calendar year; provided,
that Investments made by HERC in HEL using the proceeds of Investments
by the Company in HERC shall not be included in such aggregate amount
and (ii) Investments by the Company in International, HERC or HEL (or
by HERC in HEL) for the purpose of capital expenditures in respect of
Properties owned by International, HERC or HEL, as the case may be,
and included in the Borrowing Base, and consisting of Hydrocarbon
Interests located in countries (other than the United States of
America) approved by the Required Lenders pursuant to the definition
of Hydrocarbon Interests and not to exceed in the aggregate capital
expenditures in respect thereof set forth in the then most recent
Approved Engineers' Report or Company's Engineers' Report to be
delivered pursuant to Section 9.1;
(f) Investments by Subsidiaries of International in
Subsidiaries of International;
(g) Other Investments in an aggregate amount not to
exceed $15,000,000 during any calendar year;
(h) Investments in Persons which (A) Persons arise as
a result of joint operations of oil and gas properties located in the
United States of America, in which such joint operators each directly
own undivided interests, pursuant to joint operating agreements
containing terms and provisions customary in the oil and gas industry
and entered into in the ordinary course of business (and not arising
as a result of a joint venture agreement or partnership agreement,
whether written, oral, express or implied) and (B) Investments are in
respect of the joint operations of such Properties pursuant to such
joint operating agreements;
provided, however, that
(i) 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
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(j) no Investment otherwise permitted by clause (d),
(e) (f) or (g) shall be permitted to be made if, immediately before or
after giving effect thereto, any Default shall have occurred and be
continuing.
11.13. Hedging Contracts. The Company will not and will not
permit any of its Subsidiaries to enter into or become obligated under any
contract for sale for future delivery of oil or gas, whether or not the subject
oil or gas is to be delivered, hedging contract, forward contract, commodity
swap agreement, futures contract or other similar agreement except for such
contracts which in the aggregate do not cover at any time a volume of oil or
gas, as the case may be, equal to more than 75% of the projected production of
oil or gas, as the case may be, from the Properties included in the Borrowing
Base for the term covered by such contracts.
11.14. Approval of Consents. In any instance in this Article XI
where it is provided that an action may be taken by the Company or a Subsidiary
only with the approval or consent of the Required Lenders, the failure by a
Lender to respond to a request for such approval or consent within 10 Business
Days of receipt of a request for such approval or consent (or such other length
of time as specified by the Administrative Agent in such request) shall be
deemed an approval of, or consent to, such request.
ARTICLE XII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a "Default":
12.1. Breach of Warranties and Misleading Statements. Any
representation or warranty made or deemed made pursuant to Article VIII, by or
on behalf of the Company or any Subsidiary to the Lenders, the Administrative
Agent, the Co-Agent or the Collateral Agent under or in connection with this
Agreement, any Loan, any Loan Document, or any certificate, or, information
delivered in connection with this Agreement, any other Loan Document is
breached or shall be false, incomplete or incorrect on the date as of which
made or deemed made in any material respect.
12.2. Nonpayment of Notes, Fees and other Obligations.
Nonpayment of principal of any Note when due; or nonpayment of interest upon
any Note or of any facility fee or other Obligation under any of the Loan
Documents within three (3) days after the same becomes due.
12.3. Breach of Certain Covenants. The breach by the Company of
any of the terms or provisions of Section 9.2, 9.3, 9.15 or Article X or
Article XI.
12.4. (Intentionally Omitted.)
12.5. Non-Compliance with this Agreement. The breach by the
Company (other than a breach which constitutes a Default under any other
Section of this Article XII) of any of the terms, provisions or covenants of
this Agreement which is not remedied within 30 days after written notice from
the Administrative Agent, the Co-Agent, the Collateral Agent or any Lender.
12.6. Cross-Defaults.
(a) Failure of the Company or any Subsidiary to pay
any Indebtedness (other than Limited Recourse Indebtedness of such
Person) in excess of $25,000,000 in aggregate principal amount when
due; or the default by the Company or any Subsidiary in the
performance of any term, provision or condition contained in any
agreement under which any such Indebtedness was created or is
governed, the effect of which is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of the Company
or any Subsidiary shall be declared to be due
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and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or the
Company or any Subsidiary shall not pay, or shall admit in writing its
inability to pay, its debts generally as they become due.
(b) Failure of an Affiliate (other than any
Subsidiary) to pay any Indebtedness (other than Limited Recourse
Indebtedness) in excess of $25,000,000 in aggregate principal amount
when due or any such Indebtedness of an Affiliate shall be declared to
be due and payable or required to be prepaid (other than a regularly
scheduled payment) prior to the stated maturity thereof; or an
Affiliate shall not pay, or shall admit in writing its inability to
pay, its debts as they become due; if any of the foregoing would have
a Material Adverse Effect.
12.7. Voluntary Dissolution and Insolvency Proceedings and
Actions. The Company, any Subsidiary or any Affiliate shall (a) have an order
for relief entered with respect to it under Federal bankruptcy laws as now or
hereafter in effect, (b) make an assignment for the benefit of creditors, (c)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial part of its property, (d) institute any proceeding seeking an order
for relief under Federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (e)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 12.7 or (f) fail to contest in good
faith any appointment or proceeding described in Section 12.8; provided,
however, that if any of the foregoing shall occur with respect to any
Affiliate, it shall not constitute a Default hereunder unless it shall have a
Material Adverse Effect.
12.8. Involuntary Insolvency Proceedings or Dissolution. Without
the application, approval or consent of the Company, any Subsidiary or any
Affiliate, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for such Person or any substantial part of its property, or a
proceeding described in Section 12.7(d) shall be instituted against the
Company, any Subsidiary or any Affiliate and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days; provided, however, that if any of the foregoing shall
occur with respect to any Affiliate, it shall not constitute a Default
hereunder unless it shall have a Material Adverse Effect.
12.9. Condemnation. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of
all or any portion of the assets of the Company or any Subsidiary with a fair
market value in excess of $50,000,000 in the aggregate for all such assets;
provided, that for purposes of the foregoing, the fair market value of the
assets of a Subsidiary constituting a Drilling Partnership condemned, seized or
otherwise appropriated or taken into custody or control shall be deemed to be
the product of such fair market value times the Company's direct ownership
percentage of such Drilling Partnership; and, provided, further, that this
Section 12.9 shall not apply to any assets which are not included in the
Borrowing Base and which are either: (i) owned by International or (ii) owned
by the Company or a Subsidiary other than International and located outside of
the United States of America.
12.10. Judgments. The Company or any Subsidiary shall fail within
45 days to pay, bond or otherwise discharge any uninsured portion of any
judgment or order for the payment of money in excess of $10,000,000 in the
aggregate for all such judgments and orders, which is not stayed on appeal or
is not otherwise being appropriately contested in good faith.
12.11. Plans. The Unfunded Liabilities of all Plans shall exceed
in the aggregate $10,000,000.
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12.12. Material Adverse Effect. The Company, any Subsidiary, or
any of the Properties shall be the subject of any proceeding or investigation
pertaining to the release by any of them or from such Property of any toxic or
hazardous waste or substance into the environment, or any violation of any
federal, state or local environmental, health or safety law or regulation,
which would, in any case, have or be a Material Adverse Effect; or the
occurrence of any material adverse change in the business, assets, properties,
operations, conditions or prospects (financial or otherwise) of the Company and
any of its Subsidiaries taken as a whole or in the ability of the Company or
its Subsidiaries to perform their respective obligations under the Loan
Documents.
12.13. Other Defaults Under Loan Documents. The occurrence of any
default under any Loan Document (other than this Agreement or the Notes) or the
breach of any of the terms or provisions of any Loan Document (other than this
Agreement or the Notes) which default or breach continues beyond any period of
grace therein provided.
12.14. Failure of Loan Documents. Any Loan Document shall fail to
remain in full force or effect or shall be declared null and void, or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Loan Document.
12.15. Change in Control. Any Change in Control shall occur.
ARTICLE XIII
ACCELERATION, WAIVERS, AMENDMENTS, REMEDIES; RELEASES
13.1. Acceleration. If any Default described in Section 12.7 or
12.8 occurs with respect to the Company, (a) the obligations of the Lenders to
make Loans hereunder shall automatically terminate, (b) the Obligations shall
immediately become due and payable without any election or action on the part
of any Agent or any Lender and without presentment, demand, protest or notice
of any kind, including without notice of acceleration or notice of intent to
accelerate, all of which the Company and MW Petroleum each hereby expressly
waives, and (c) the Agents and the Lenders and each of them shall be able to
exercise any rights available to it or them under the Loan Documents, the
Guaranty or by law. If any other Default occurs, (a) the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, including without notice of acceleration
or notice of intent to accelerate, all of which the Company and MW Petroleum
each hereby expressly waives, and (b) the Agents and the Lenders and each of
them shall be able to exercise any rights available to it or them under the
Loan Documents, the Guaranty or by law. The Administrative Agent hereby
agrees, at the written direction of the Required Lenders, subject to the
provisions of Article XV, to exercise any of the foregoing rights available to
it.
13.2. Amendments. Subject to the provisions of this Article
XIII, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Company may enter into agreements
supplemental hereto for the purpose of adding or edifying any provisions to the
Loan Documents or changing in any manner the rights and remedies of the Lenders
or the Company hereunder or waiving any Default hereunder; provided however
that Sections 2.3 and the related definitions in Section 1.1 shall not be
changed without the prior written consent of the Required Lenders; provided,
further however, that no such supplemental agreement shall, without the consent
of each Lender affected thereby:
(a) Extend the maturity of any Loan, Note or payment
under a Guaranty, or reduce the principal amount of any of them, or
reduce the rate or extend the time of payment of interest or fees
thereon.
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(b) Reduce the percentage specified in the definition
of Required Lenders.
(c) Extend the Termination Date or reduce the amount
or extend the payment date for, the mandatory payments required under
Section 4.2 or increase the amount of the Commitment of any Lender
hereunder or permit the Company to assign its rights or obligations
under this Agreement or under any other Loan Document.
(d) Amend this Section 13.2.
No amendment of any provision of this Agreement relating to any Agent shall be
effective without the written consent of such Agent. The Administrative Agent
may waive payment of the fee required under Section 17.3(b) without obtaining
the consent of any of the Lenders.
13.3. Preservation of Rights. All remedies contained in the Loan
Documents or afforded by law shall be cumulative and all shall be available to
the Agents and the Lenders until the Obligations have been paid in full. No
delay or omission of the Lenders, the Agents or any of them to exercise any
right under the Loan Documents shall impair such right or be construed to be a
waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Company to
satisfy the conditions precedent to such Loan shall not constitute any waiver
or acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders and the Agents required pursuant to Section 13.2, and
then only to the extent specifically set forth in such writing.
Notwithstanding the foregoing or any other provision of this Agreement, each of
the various written consents provided by the Administrative Agent on behalf of
the Lenders, or any group of Lenders, with respect to the April 1992 Agreement
shall remain in full force and effect according to its terms, including,
without limitation, each consent contained in that certain letter from the
Administrative Agent to the Company dated January 20, 1994, concerning the
purchase by the Company of up to five million shares of its common stock.
13.4. Rights and Remedies Upon Classification as a Highly
Leveraged Transaction. If any Agent shall determine or be advised by the Board
of Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation or the Office of the Comptroller of the Currency or any other
applicable regulatory agency (including any successor agency) or examiner, that
the facilities available under this Agreement and the other Loan Documents, or
any Advance, or any Note constitute a "highly leveraged transaction", as such
term may be defined or interpreted, in accordance with applicable federal
guidelines and regulations as in effect from time to time, such Agent shall
promptly notify the Administrative Agent and the Administrative Agent shall
promptly notify the Company, the other Agents and the Lenders (an "HLT
Notice"). If an HLT Notice shall be given, the Company shall forthwith
commence discussions with the Administrative Agent to attempt to negotiate
revisions to this Agreement and the other Loan Documents (including, without
limitation, a restructuring of the facilities and the Commitments, or an
increase in the interest rates, margins, and fees, and changes in the terms,
covenants, representations and any other terms deemed relevant by the Lenders
and the Agents in their sole and absolute discretion). Any such revisions
shall be subject to the approval of all the Agents and all the Lenders and
nothing herein contained shall obligate the Company, the Lenders or the Agents
to agree to any such revisions.
13.5. Release of Collateral. Each Agent and each Lender agrees
that the Collateral Agent is authorized and directed to (a) release the
security interest granted to the Collateral Agent pursuant to the Partnership
Pledge and Security Agreement, the Stock Pledge and Security Agreement, the
Security Agreement and Financing Statement and the MW Petroleum Stock Pledge,
(b) terminate any intercreditor agreement or other agreement relating to the
maintenance or disposition of collateral for Loans under the April 1992
Agreement, (c) terminate
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any and all financing statements filed with respect to any of the foregoing
instruments and (d) return to the Company or MW Petroleum, as applicable, all
stock certificates representing collateral.
ARTICLE XIV
GENERAL PROVISIONS
14.1. Survival of Representations. All representations and
warranties of the Company, MW Petroleum and any other Subsidiary contained in
the July 1991 Agreement, the April 1992 Agreement, this Agreement, or in any
other Loan Document shall survive the delivery of the Notes and the making of
the Loans herein contemplated until all the Obligations have been paid and this
Agreement has been terminated.
14.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Company in violation of any limitation or prohibition
provided by any applicable statute or regulation.
14.3. Taxes. Any taxes (excluding income taxes) or other similar
assessments or charges payable or ruled payable by any governmental authority
in respect of the Loan Documents shall be paid by the Company, together with
interest and penalties, if any.
14.4. Headings. Article and section headings in the Loan
Documents are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
14.5. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Company, the Agents and the Lenders and
supersede all prior agreements and understandings among the Company, the Agents
and the Lenders relating to the subject matter thereof.
14.6. Several Obligations. The respective obligations of the
Lenders hereunder are several and not joint and no Lender shall be the partner
or agent of any other (except to the extent to which an Agent is authorized to
act as such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement is not intended to, and shall not be construed so as
to, confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
14.7. Reimbursement of Costs and Expenses; Indemnification.
(a) Reimbursement of Costs and Expenses. The Company
shall reimburse each Agent for any reasonable costs, internal charges
and out-of-pocket expenses (including fees and expenses of consultants
and attorneys' fees and time charges of attorneys for such Agent,
which attorneys may be employees of such Agent) paid or incurred by
such Agent in connection with (i) the preparation, review, execution,
delivery, amendment, modification and administration of the Loan
Documents including, without limitation, the fees incurred by such
Agent in connection with its initial evaluation of the Properties and
costs, charges and expenses incurred in connection with the
negotiation and documentation of revisions pursuant to Section 13.4,
and (ii) the filing, recordation, refiling or re-recording or
termination of the Collateral Documents and/or any Uniform Commercial
Code financing statements relating thereto and any and all other
documents or instruments or further assurances required to be filed or
recorded or refiled or re-recorded or terminated by the terms of this
Agreement or the Collateral Documents. The Company shall reimburse
each Agent and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Agent and the Lenders, which attorneys may be
employees of the Agents or the Lenders) paid or incurred by any
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Agent or any Lender in connection with the collection and enforcement
of the Loan Documents.
(b) Indemnification. In consideration of the
execution and delivery of this Agreement by each Lender and the
extension of the Commitments, the Company hereby indemnifies,
exonerates and holds each Agent and each Lender, and their respective
directors, Agents, officers and employees ("Indemnified Persons") free
and harmless from and against any and all losses, claims, damages,
penalties, judgments, liabilities, actions, suits, costs and expenses
(including, without limitation, all expenses of litigation or
preparation therefor whether or not any Agent or any Lender or any
Indemnified Person is a party thereto and all other attorneys' fees
and disbursements) ("Claims") which any of them may pay or incur as a
result of, arising out of, or relating to,
(i) this Agreement, the other Loan
Documents, the transactions contemplated hereby or thereby;
(ii) the direct or indirect application or
proposed application of the proceeds of any Loan hereunder;
(iii) any transaction financed or to be
financed in whole or in part, directly or indirectly, with
the proceeds of any Loan;
(iv) any investigation, litigation or
proceeding related to any acquisition or proposed
acquisition by the Company, any of its Subsidiaries, HERC
or HEL of all or any portion of the stock or assets of any
Person, whether or not any Agent or any Lender is party
thereto;
(v) any investigation, litigation or
proceeding related to any environmental cleanup, audit,
compliance or other matter relating to any Environmental
Law or the condition of any facility or property owned,
leased or operated by the Company or any Subsidiary;
(vi) the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission,
discharging or releases from, any facility or property
owned, leased or operated by the Company or any Subsidiary
thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law),
regardless of whether caused by, or within the control of,
the Company or such Subsidiary; or
(vii) any misrepresentation, inaccuracy or
any breach in or of Section 8.20 or Section 9.12;
(the foregoing collectively the "Indemnified Liabilities"), except to the
extent that a final order of a court of competent jurisdiction finds that the
such Indemnified Liability arises solely from such Indemnified Person's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Company hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The
obligations of the Company under this Section 14.7 shall survive the
termination of this Agreement or any non- assumption of this Agreement in a
bankruptcy or similar proceeding. The Company shall be obligated to indemnify
the Indemnified Persons for all Claims regardless of whether the Company had
knowledge of the facts and circumstances giving rise to such Claims.
14.8. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may furnish
one to each of the Lenders and each of the Agents.
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14.9. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.10. Nonliability of Lenders. The relationship between the
Company on the one hand and the Lenders and the Agents on the other hand shall
be solely that of borrower and lender. None of the Agents nor any Lender shall
have any fiduciary responsibilities to the Company or any of its Subsidiaries.
None of the Agents nor any Lender undertakes any responsibility to the Company
or any of its Subsidiaries to review or inform the Company of any matter in
connection with any phase of the Company's or such Subsidiary's business or
operations.
14.11. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL LENDERS.
14.12. CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE LENDERS OR THE COMPANY SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT ANY AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE COMPANY
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF ILLINOIS AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE COMPANY HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
14.13. Confidentiality. Each Lender and each Agent agrees to hold
any confidential information which it may receive from the Company pursuant to
this Agreement in confidence in accordance with the provisions set forth in
Exhibit "J" hereto. In addition to the disclosures permitted in such
provisions, the Lenders and the Agents each shall be permitted to make
disclosures of such information in accordance with Section 17.4.
ARTICLE XV
THE ADMINISTRATIVE AGENT,
THE CO-AGENT AND THE COLLATERAL AGENT
15.1. Appointment of Agents. The First National Bank of Chicago
is hereby appointed Administrative Agent and Collateral Agent hereunder and
under each other Loan Document, and Chemical is hereby appointed Co-Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes each such Agent to act as the agent of such Lender.
Each Agent agrees to act as such upon the express conditions contained in this
Article XV. No Agent shall
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have a fiduciary relationship in respect of any Lender by reason of this
Agreement or any of the other Loan Documents.
15.2. Powers. Each Agent shall have and may exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to it by the terms of each thereof, together with such powers as are reasonably
incidental thereto. None of the Agents shall have implied duties to the
Lenders, or any obligation to the Lenders to take any action thereunder except
any action by an Agent specifically provided by the Loan Documents to be taken
by such Agent.
15.3. General Immunity. No Agent nor any of their directors,
officers, agents or employees shall be liable to any Lender or any of the other
Agents for any action taken or omitted to be taken by it or them hereunder or
under any other Loan Document or in connection herewith or therewith except for
its or their own gross negligence or wilful misconduct as established by final
order of a court of competent jurisdiction.
15.4. No Responsibility for Loans, Recitals, etc. No Agent nor
any of their directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document; (iii) the satisfaction of
any condition specified in Article VII, except receipt by an Agent of items
required to be delivered to such Agent unless such condition shall have been
waived in accordance with Section 13.2; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or writing
furnished in connection therewith.
15.5. Action on Instructions of Lenders. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders or the Required Lenders, as the case may be, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders, the other Agents and all holders of Notes.
15.6. Employment of Agents and Counsel. Each Agent may execute
any of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
respective duties hereunder and under any other Loan Document.
15.7. Reliance on Documents; Counsel. Each Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and,
in, respect to legal matters, upon the opinion of counsel selected by such
Agent, which counsel may be employees of the Agents or any of them.
15.8. Reimbursement and Indemnification. Each Lender agrees to
reimburse and indemnify each of the Administrative Agent, the Collateral Agent,
the Co-Agent ratably in proportion to such Lender's Aggregate Commitments, (i)
for any amounts (other than principal or interest) not reimbursed by the
Company or the Guarantor for which such Agent is entitled to reimbursement by
the Company under the Loan Documents, and (ii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against such Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be so liable to the extent any of the foregoing
is found by a final order of a court of competent
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jurisdiction to have arisen solely from such Agent's gross negligence or
willful misconduct.
15.9. Rights as a Lender. With respect to its Commitments, Loans
made by it and the Notes issued to it, each Agent shall have the same rights
and powers hereunder and under each other Loan Document as any Lender and may
exercise the same as though it did not hold such role, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include each of them
in its individual capacity. In addition to, and not by way of limitation of
the rights set forth in Section 14.14, each Agent may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business
with the Company or any Subsidiary or any other Affiliate of the Company as if
it did not hold such role.
15.10. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon any Agent or any other Lender and
based on the financial statements prepared by the Company and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the other Loan Documents.
15.11. Certain Successor Agents. Any Agent may resign at any time
by giving thirty (30) days' prior written notice thereof to the Lenders and the
Company. Upon any such resignation, the Company shall, if no Default or
Unmatured Default has occurred and is continuing, have the right (subject to
the consent of the Required Lenders) to appoint, on behalf of the Company and
the Lenders, a Lender as a successor Agent. If no successor Agent shall have
been so appointed by the Company and shall have accepted such appointment
within thirty (30) days' after the retiring Agent's giving notice of
resignation, then the retiring Agent may appoint, on behalf of the Company and
the Lenders, a Lender as a successor Agent; provided, however, that the Company
may, within the one year period following the appointment of a successor Agent,
and upon thirty (30) days written notice to the Lenders, remove the successor
Agent and appoint a successor Agent acceptable to the Company (subject to the
consent of the Required Lenders). Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and Obligations (but not any liability arising from its gross negligence
or wilful misconduct as established by a final order of a court of competent
jurisdiction) hereunder and under the other Loan Documents. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article XV shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as an Agent hereunder and under the other
Loan Documents.
ARTICLE XVI
SETOFF; RATABLE PAYMENTS
16.1. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Company becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs, any indebtedness
from any Lender to the Company (including all account balances, whether
provisional or final and whether or not collected or available) may be offset
and applied toward the payment of the Obligations owing to such Lender, whether
or not the Obligations, or any part hereof, shall then be due and payable.
16.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans in a greater proportion than
it would have received pursuant to an allocation using the method set forth in
Section 4.3 or 4.4 (except for payments made to Lenders with respect to 1992
Revolving Loans which are outstanding on the Effective Date including, without
limitation,
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payments made to Banque Indosuez and Norwest Bank Denver, N.A. pursuant to
Section 9.16), such Lender agrees, promptly upon demand, to purchase a portion
of the Loans held by the other Lenders so that after such purchase each Lender
will hold its ratable proportion of such type of Loans. If any Lender, whether
in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to set off, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to the Obligations owing to
each of them. In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XVII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
17.1. Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Company,
the Agents and the Lenders and their respective successors and assigns, except
that the Company shall not have the right to assign its rights or obligations
under the Loan Documents and any assignment by any Lender must be made in
compliance with Section 17.3. The Administrative Agent and the Collateral
Agent may treat the payee of any Note as the owner thereof for all purposes
hereof unless and until such payee complies with Section 17.3 in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with such Agent. Any assignee or transferee of a Note
agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the holder
of any Note, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
17.2. Participations.
(a) Any Lender, in the ordinary course of its business
and in accordance with applicable law, at any time may sell to one or
more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's Obligations
under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder
of any such Note or Obligation for all purposes under the Loan
Documents, and the Company and the Agents shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
(b) Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, postpones any
date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, or reimbursement obligation with respect to, any
such Loan or Commitment, releases any guarantor of any such Obligation
or releases all or substantially all of the collateral (except as
permitted by Section 13.2(d)), if any, securing any such Obligation.
(c) The Company agrees that each Participant shall be
deemed to have the right of setoff provided in Section 16.1 in respect
of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan
Documents, provided that each
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Lender shall retain the right of setoff provided in Section 16.1 with
respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in
Section 16.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 16.2 as if each Participant were a
Lender. The Company also agrees that each Participant shall be
entitled to the benefits of Sections 6.1 and 6.3 with respect to its
participation in the Commitments or the Loans outstanding from time to
time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such Sections than the transferor Lender
would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
17.3. Assignments.
(a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law and with the consent of
the Company, at any time assign to one or more banks or other entities
("Purchasers") all or any part of its rights and obligations under the
Loan Documents subject to a minimum of $15,000,000 or such lesser
amount as may be agreed to by the Company; provided that with respect
to any Purchaser which is an Affiliate of such Lender, such consent of
the Company shall not be unreasonably withheld. Such assignment shall
be substantially in the form of Exhibit "D" hereto. The consent of
the Administrative Agent shall also be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender.
All such consents shall be substantially in the form attached as
Exhibits "D-II" or "D- III" to Exhibit "D" hereto and shall not be
unreasonably withheld.
(b) Upon (i) delivery to the Administrative Agent of a
notice of assignment, substantially in the form attached as Exhibit
"D-I" to Exhibit "D" hereto (a "Notice of Assignment"), together with
any consents required by Section 17.3.(a), and (ii) payment of a
$2,500 fee to the Administrative Agent for processing such assignment,
such assignment shall become effective on the effective date specified
in such Notice of Assignment; provided, however, that any amounts paid
by the Company to, or for the benefit of, the assigning Lender, on or
before the execution date of the assignment, if such date is later
than the effective date of the assignment, shall be deemed paid to and
for the benefit of the Purchaser for all purposes. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender, party to this Agreement and any other Loan
Document executed by the Lenders, and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or
action by the Company, the Lenders or any Agent shall be required to
release the transferor Lender, with respect to the percentages of the
Commitment, and the Loans assigned to such Purchaser and the
transferor Lender shall henceforth be so released. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
17.3(b), the Company shall issue replacement Notes to such transferor
Lender and shall issue new Notes or, as appropriate, replacement
Notes, to such Purchaser, in each case in principal amounts reflecting
their respective Commitments, as adjusted pursuant to such assignment.
(c) The provisions of the foregoing clauses (a) and
(b) shall not apply to or restrict, or require the consent of or
notice to any Person to effectuate, the pledge or assignment by any
Agent or Lender of its rights or obligations under any Loan Documents
to any Federal Reserve Bank.
17.4. Dissemination of Information. The Company authorizes each
Agent and each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
62
<PAGE> 69
Lender's possession concerning the creditworthiness of the Company and the
Subsidiaries, provided that such Transferee and prospective Transferee agrees
in writing to be bound by Section 14.13 of this Agreement.
17.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 6.8.
ARTICLE XVIII
NOTICES
18.1. Giving Notice. Except as otherwise permitted by Section
4.5 with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid, shall be
deemed given when received; any notice, if transmitted by telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case of
telexes).
18.2. Change of Address. The Company, the Administrative Agent,
the Co-Agent, the Collateral Agent and the Lenders may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.
ARTICLE XIX
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Agents and the Lenders and each party has notified the Administrative Agent, by
telex, facsimile or telephone, that it has taken such action.
ARTICLE XX
NO ORAL AGREEMENTS
THIS WRITTEN AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the Company, the Lenders and the Agents have
executed this Agreement as of the date first above written.
APACHE CORPORATION
By: /s/ CLYDE E. MCKENZIE
Title: Clyde E. McKenzie
Vice President and Treasurer
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Attention: Clyde McKenzie
Vice President and Treasurer
63
<PAGE> 70
with a copy to:
Zurab S. Kobiashvili
Vice President and General Counsel
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Facsimile: (713) 296-6459
Telephone: (713) 296-6000
64
<PAGE> 71
Commitments
$50,000,000
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative
Agent and Collateral Agent
By: /s/ W. WALTER GREEN, III
Title: Vice President
One First National Plaza
Chicago, Illinois 60670
Attention: W. Walter Green, III
Petroleum and Mining
Division
Suite 0363
Facsimile: (312) 732-3055
Telephone: (312) 732-7235
with a copy to:
Attention: Thomas E. Both
Syndications and
Placements/Agency
Suite 0353
Facsimile: (312) 732-2038
Telephone: (312) 732-7268
65
<PAGE> 72
$0 CHEMICAL BANK, as Co-Agent
By: /s/ RONALD POTTER
Title: Managing Director
270 Park Avenue
Energy Portfolio, 10th Floor
New York, New York 10017-2070
Attention: Ronald Potter
Facsimile: (212) 270-3860
Telephone: (212) 270-2057
with a copy to:
Lori Vetters
Chemical Banking Corporation
707 Travis
5th Floor North
Houston, Texas 77002
Facsimile: (713) 236-4117
Telephone: (713) 236-4332
66
<PAGE> 73
$50,000,000 BANK OF MONTREAL, Individually and
as Lead Manager
By: /s/ ROBERT L. ROBERTS
Title: Director. U.S. Corporate Banking
700 Louisiana Street
Suite 4400
Houston, Texas 77002
Attention: Robert L. Roberts
Facsimile: (713) 223-4007
Telephone: (713) 546-9754
67
<PAGE> 74
$50,000,000 NATIONSBANK,
Individually and as Lead Manager
By: /s/ MELISSA A. BAUMAN
Title: Vice President
700 Louisiana Street, 8th Floor
Houston, Texas 77002
Attention: Jo A. Tamalis
Facsimile: (713) 247-6432
Telephone: (713) 247-6856
with a copy to:
Melissa Bauman
700 Louisiana Street, 8th Floor
Houston, Texas 77002
Facsimile: (713) 247-6432
Telephone: (713) 247-6830
68
<PAGE> 75
$50,000,000 TEXAS COMMERCE BANK, N.A.
By: /s/ LORI VETTERS
Title: Vice President
Address: 707 Travis, 5th Floor
Houston, Texas 77002
Attention: Lori Vetters
Facsimile: (713) 216-4227
Telephone: (713) 216-4332
69
<PAGE> 76
$37,000,000 THE CHASE MANHATTAN BANK, N.A.
By: /s/ BETTYLOU J. ROBERT
Title: Vice President
One Chase Manhattan Plaza
New York, New York 10081
Attention: Global Energy
Facsimile: (212) 552-1687
Telephone: (212) 552-6362
with a copy to:
Chase Manhattan Southwest
1100 Milam, Suite 2345
Houston, Texas 77002
Attention: J. Scott Porter
Facsimile: (713) 751-9122
Telephone: (713) 751-5657
70
<PAGE> 77
$37,000,000 CHRISTIANIA BANK OG KREDITKASSE
By: /s/ JAHN O. ROISING
Title: First Vice President
By: /s/ DEBRA DICKEHUTH
Title: Vice President
11 West 42nd Street
New York, New York 10036
Attention: Deborah Dickehuth
Facsimile: (212) 827-4888
Telephone: (212) 827-4836
71
<PAGE> 78
$37,000,000 MIDLAND BANK PLC, NEW YORK BRANCH
By: /s/ JOHN A. CLEVELAND
Title: Director
140 Broadway, 4th Floor
New York, New York 10005-1185
Attention: John A. Cleveland
Facsimile: (212) 658-2580
Telephone: (212) 658-2702
72
<PAGE> 79
$25,000,000 ROYAL BANK OF CANADA
GRAND CAYMAN (NORTH AMERICAN #2) BRANCH
By: /s/ J. D. FROST
Title: Senior Manager
600 Wilshire Blvd.
Suite 800
Los Angeles, California 90017
Attention: Everett M. Harner
Facsimile: (213) 955-5350
Telephone: (213) 955-5370
73
<PAGE> 80
$37,000,000 NBD BANK, N.A.
By: /s/ DOUGLAS R. LIFTMAN
Title: Vice President
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Doug Liftman
Facsimile: (313) 225-2649
Telephone: (313) 225-3193
74
<PAGE> 81
$37,000,000 THE BANK OF NOVA SCOTIA
SAN FRANCISCO AGENCY
By: /s/ N. O. CAMPBELL
Title: Assistant Agent
101 California Street, 48th Floor
San Francisco, California 94111
Attention: N. O. Campbell, Asst. Agent
Facsimile: (415) 397-0791
Telephone: (415) 986-1100
with copy to:
The Bank of Nova Scotia
Houston Representative Office
1100 Louisiana, Suite 3000
Houston, Texas 77002
Attention: Mark A. Ammerman
Facsimile: (713) 752-2425
Telephone: (713) 752-0900
75
<PAGE> 82
$25,000,000 BANQUE PARIBAS
By: /s/ DEEPA PANUMATY
Title: Vice President
By: /s/ CHARLES K. THOMPSON
Title:
787 7th Avenue
New York, New York 10019
Attention: Charles K. Thompson
Facsimile: (212) 841-2555
Telephone: (212) 841-2133
76
<PAGE> 83
$25,000,000 CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ J. WESTLAND
Title: Authorized Signatory
Attention: Credit Administration
200 Galleria Parkway, N.W., Suite 650
Atlanta, Georgia 30339
Facsimile: (404) 955-1185
Telephone: (404) 955-8989
with a copy to:
909 Fannin
Two Houston Center, Suite 1220
Houston, Texas 77010
Attention: Brian Swinford
Facsimile: (713) 658-9922
Telephone: (713) 658-8400
77
<PAGE> 84
$25,000,000 COLORADO NATIONAL BANK
By: /s/ MONTE DECKERD
Title: Vice President
950 Seventeenth Street
Denver, Colorado 80202
Attention: Monte Deckerd
Facsimile: (303) 585-4362
Telephone: (303) 585-4212
78
<PAGE> 85
$25,000,000 CITIBANK, N.A.
By: /s/ EDWARD LETTIERI
Title: Vice President
c/o Citibank, N.A.
399 Park Avenue, 6th Floor
New York, New York 10022
Attention: Barbara A. Cohen
Facsimile: (212) 559-8712
Telephone: (212) 793-3824
79
<PAGE> 86
$25,000,000 THE FIRST NATIONAL BANK OF BOSTON
By: /s/ MICHAEL KANE
Title: Managing Director
100 Federal Street
Boston, Massachusetts 02110
Attention: Michael Kane
Facsimile: (617) 434-3652
Telephone: (617) 434-5358
80
<PAGE> 87
$25,000,000 THE FUJI BANK, LIMITED
- HOUSTON AGENCY
By: /s/ SOICHI YOSHIDA
Title: Vice Presient and Senior Manager
2 Houston Center
909 Fannin Street, Suite 2800
Houston, Texas 77010
Attention: William Brown
Facsimile: (713) 759-0048
Telephone: (713) 759-1800
81
<PAGE> 88
$8,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ VERNON B. FORD, JR.
Title: Vice President
60 Wall Street
New York, New York 10260
Attention: Steven A. Tulip
Facsimile: (212) 648-5014
Telephone: (212) 648-7225
82
<PAGE> 89
$8,000,000 J.P. MORGAN DELAWARE
By: /s/ D. J. MORRIS
Title: Vice President
902 N. Market Street
Wilmington, Delaware 19801
Attention: Phil Detjens
Facsimile: (302) 654-5336
Telephone: (302) 651-3726
83
<PAGE> 90
$37,000,000 BANK OF AMERICA
f/k/a SECURITY PACIFIC NATIONAL BANK
By: /s/ JOHN ROBINSON
Title: Vice President
333 Clay Street, Suite 4550
Houston, Texas 77002
Attention: John Robinson
Facsimile: (713) 651-4841
Telephone: (713) 651-4836
84
<PAGE> 91
$37,000,000 SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ RICHARD A. ERBERT
Title: Vice President
2001 Ross Avenue, #4800
Dallas, Texas 75201
Attention: Terri Jones
Facsimile: (214) 754-0171
Telephone: (214) 979-2777
With a copy to:
SOCIETE GENERALE
1111 Bagby, Suite 2020
Houston, Texas 77002
Attention: Richard A. Erbert
Facsimile: (713) 650-0824
Telephone: (713) 759-6318
85
<PAGE> 92
$25,000,000 ABN-AMRO BANK N.V. - Houston Agency
By: /s/ MICHAEL N. OAKES
Title: Vice President
Address: Three Riverway
Suite 1600
Houston, Texas 77056
Attention: Michael N. Oakes
Facsimile: (713) 629-7533
Telephone: (713) 964-3356
86
<PAGE> 93
$25,000,000 UNION BANK
By: /s/ RICHARD P. DEGREY
Title: Vice President
By: /s/ WALTER M. ROTH
Title: Vice President
445 South Figueroa Street
15th Floor
Los Angeles, California 90071
Attention: Richard P. De Grey
Facsimile: (213) 236-4096
Telephone: (213) 236-5469
____________
$700,000,000
AGGREGATE
COMMITMENT
87
<PAGE> 1
EXHIBIT 10.2
________________________________________________________________________________
AMENDED AND RESTATED
ACCEPTANCE AGREEMENT
by and between
HADSON ENERGY LIMITED
and
BANK OF MONTREAL
individually and as Agent
and
the Other Banks
which may become Parties hereto
Dated as of May 26, 1994
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
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SECTION 1. THE ACCEPTANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. General Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Procedure for Acceptance of Drafts . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. Discounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4. Certain Undertakings of the Banks . . . . . . . . . . . . . . . . . . . . . . . 3
1.5. Payment of Drafts by the Company . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6. Extension of Transition Date and Termination Date . . . . . . . . . . . . . . . 4
1.7. Certain Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.8. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.9. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.10. Taxes and Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.11. Lending Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.12. Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS . . . . . . . . . . . . . . . . . . . . 8
2.1. Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2. Agent's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4. Mandatory Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5. Voluntary Reductions of the Available Amount . . . . . . . . . . . . . . . . . . 9
2.6. Place and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.7. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3. THE COLLATERAL AND THE GUARANTIES . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. THE BORROWING BASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1. Amount and Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2. The Borrowing Base Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3. Special Adjustments to the Borrowing Base . . . . . . . . . . . . . . . . . . . 13
(a) Determination of Borrowing Base at the Request of the Company . . . . . . 13
(b) Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Casualties and Adverse Claims . . . . . . . . . . . . . . . . . . . . . . 14
(d) Exogenous Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1. Organization and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.3. Guaranties and Collateral Documents . . . . . . . . . . . . . . . . . . . . . . 16
5.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6. Litigation and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.7. Burdensome Contracts with Affiliates . . . . . . . . . . . . . . . . . . . . . . 17
5.8. The Borrowing Base Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.9. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.10. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
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5.11. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.12. No Business in Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.13. Regulation G, U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1. All Acceptances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2. Conditions to Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7. COMPANY COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.1. Maintenance of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.2. Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.3. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.4. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.5. Financial Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.6. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.7. Nature of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.8. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.9. Acquisitions, Investments, Loans and Advances . . . . . . . . . . . . . . . . . 29
7.10. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.11. Dividends and Certain Other Restricted Payments . . . . . . . . . . . . . . . . 31
7.12. Mergers, Consolidations, etc . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.13. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.14. Issuance of Additional Capital Stock . . . . . . . . . . . . . . . . . . . . . . 33
7.15. Burdensome Contracts with Affiliates . . . . . . . . . . . . . . . . . . . . . . 33
7.16. The Significant Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.17. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.18. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.19. Limitations Concerning Distributions and Transfers by Pledged Subsidiaries . . . 34
SECTION 8. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.2. U.S. Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.1. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.2. Rights as a Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.3. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.4. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.5. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.1. Waiver of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.2. Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.3. Documentary Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.4. Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.5. Survival of Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.6. Set-off Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.7. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.8. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.9. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.10. Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.11. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
11.12. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.13. Assignment Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.14. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.15. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.16. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.17. One Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.18. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.19. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
11.20. Time is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
11.21. Limit on Rate of Interest or Discount . . . . . . . . . . . . . . . . . . . . . 55
11.22. Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
iii
<PAGE> 5
HADSON ENERGY LIMITED
AMENDED AND RESTATED ACCEPTANCE AGREEMENT
To:
Bank of Montreal
and the Other Banks From Time
to Time Parties Hereto
Gentlemen:
Reference is made to that certain Acceptance Agreement by and between
Hadson Energy Limited and Bank of Montreal, individually and as Agent, and the
other Banks which may become party thereto, dated as of June 6, 1991 (as the
same may, from time to time, be amended or modified, the "Original Acceptance
Agreement"). The undersigned, Hadson Energy Limited, A.C.N. 009 301 964, a
Western Australia corporation (the "Company"), wishes to amend and restate the
Original Acceptance Agreement, as set forth below, and hereby applies to you
for your several commitments, subject to all of the terms and conditions hereof
and on the basis of the representations and warranties hereinafter set forth,
to accept and discount Drafts, all as more fully hereinafter set forth.
SECTION 1. THE ACCEPTANCES.
1.1. General Terms. Acceptances (as defined in the
Original Acceptance Agreement) outstanding on the date hereof shall, on such
date, be continued as and deemed to be Acceptances under this Agreement having
the same maturity date and shall continue to be secured by the Collateral.
Subject to all of the terms and conditions hereof, the Banks agree to accept
and discount Drafts on behalf of the Company during the period from the date
hereof to and including the Termination Date, all as more fully hereinafter set
forth, provided that the aggregate face amount of Acceptances outstanding at
any one time shall not exceed the Available Amount as then determined and
computed, and provided further that from and after the Transition Date, Drafts
will be accepted and discounted in an aggregate amount no greater than that
necessary to refund the purchase price of Acceptances maturing on the related
Acceptance Date. Notwithstanding the immediately preceding sentence, during
the ninety (90) day period immediately following a reduction in the Borrowing
Base as a result of a redetermination thereof, the Banks shall accept and
discount Drafts in an aggregate amount necessary to refund the purchase price
of
<PAGE> 6
Acceptances maturing during such period even though, as a result thereof, the
aggregate face amount of Acceptances outstanding exceeds the Available Amount
then in effect. The obligations of the Banks hereunder are several and not
joint and no Bank shall under any circumstances be obligated to extend credit
hereunder in excess of its Facility Amount Percentage of the Available Amount
hereunder. At no time shall there be more than five tranches of Acceptances
outstanding.
1.2. Procedure for Acceptance of Drafts. In order to
facilitate the acceptance of Drafts hereunder, the Company will from time to
time deliver to each Bank, under cover of a letter in a form acceptable to such
Bank, a supply of Drafts executed on behalf of the Company but with the date,
the face amount and the maturity thereof left blank. Each Bank agrees to hold
the Drafts so delivered to it in safekeeping giving such Drafts the same
physical care and safeguards as it affords its own property of a similar type.
Not less than three Business Days prior to each Acceptance Date the Company
shall advise the Agent through issuance of an Acceptance Request in the form
annexed hereto as Exhibit A (the "Acceptance Requests") of the aggregate face
amount (if any) of Drafts which are to be accepted and discounted hereunder on
the Acceptance Date in question, which amount shall be a minimum amount of
$1,000,000 and thereafter in integral multiples of $100,000. In no event may
the Company request the creation and/or discount of Acceptances hereunder if
after giving effect thereto the aggregate amount of Acceptances scheduled to be
outstanding through the maturity date of the newly accepted Drafts will exceed
the Available Amount as scheduled to be outstanding during the same period.
The Agent shall promptly notify each Bank of each Acceptance Request so
received. Subject to all the conditions hereof on the related Acceptance Date,
each Bank shall withdraw one or more presigned Drafts from its inventory
thereof and complete the same with the applicable Acceptance Date, a face
amount equal to its Facility Amount Percentage of the aggregate face amount of
all Drafts to be accepted on the applicable Acceptance Date and the maturity
thereof (which shall be 30, 60 or 90 days after the applicable Acceptance Date
as requested by the Company in the applicable Acceptance Request except that
maturities of less than 30 days may be requested until the Available Amount is
fully in use and to facilitate an orderly retirement of the Available Amount)
and shall then accept such Drafts and discount the same for the account of the
Company pursuant to Section 1.3 hereof.
1.3. Discounting. Subject to all of the terms and
conditions hereof, each Bank agrees that it will on each Acceptance Date fund
or discount all Drafts accepted by it on such date in the Canadian U.S. Dollar
acceptance market or, subject to Section 1.4 hereof, purchase the same for its
own account such in each instance that the purchase price therefor shall be
equal to the face amount of the Drafts accepted, discounted or purchased by it
less the
2
<PAGE> 7
Discount applicable to such Drafts and the Stamping Fee payable with respect
thereto, with such purchase price to be remitted on the applicable Acceptance
Date to the Agent which will in turn make same available to the Company at the
main branch of the Agent in Toronto.
1.4. Certain Undertakings of the Banks. Each Bank for
itself alone undertakes to the Company to use reasonable efforts to ensure that
the Drafts accepted by it are widely distributed and agrees not to knowingly
sell or transfer a Draft or any interest therein to a resident of Australia.
Following a request from the Company which relates to:
(a) information ordinarily required for the purposes of
obtaining a certificate under section 128F of the Income Tax
Assessment Act 1936 of Australia relating to the Acceptances; or
(b) a request from the Australian Taxation Office for
specific information (in which case the request shall be accompanied
by satisfactory evidence of such request from the Australian Taxation
Office),
the Banks agree to provide to the Company within a reasonable time a
statement which sets out at that date:
(i) the number and face value of the Acceptances which
have been accepted by and are still retained by such Bank as at that
date; and
(ii) such other information concerning the Acceptances as
the Company may reasonably require in order to enable it to obtain a
certificate under section 128F of the Income Tax Assessment Act 1936
of Australia relating to such Acceptances.
1.5. Payment of Drafts by the Company. The Company agrees
to pay to the Agent for the ratable account of the Banks the face amount of
each Draft accepted and discounted pursuant hereto in same day U.S. Dollars no
later than such Draft's maturity date provided the amount of each Draft
accepted or discounted hereunder shall become immediately due and payable under
the circumstances set forth in Sections 8.2 and 8.3 hereof. In addition, the
Company agrees to pay on demand to the Agent for the ratable account of the
Banks interest (computed on the basis of a year of 360 days for the actual
number of days elapsed) at the Interest Rate on the face amount of each
Acceptance from the maturity date thereof (or such earlier date as the face
amount of such Draft becomes due and payable to the Bank accepting same
pursuant to the provisions of this Section 1.5 or the provisions of Sections
8.2 or 8.3 hereof) until payment in full thereof by the Company.
3
<PAGE> 8
1.6. Extension of Transition Date and Termination Date.
Subject to the other provisions of this Agreement, the obligation of the Banks
to accept Drafts hereunder shall be effective for an initial period from the
date hereof to the Termination Date; provided that the Transition Date and the
Termination Date may each be extended for successive one-year periods, if
requested by the Company and consented to by each of the Banks as set forth
below. The Company may request such an extension by delivering to the Agent a
Certificate of Extension duly executed by an officer of the Company not more
than one hundred twenty (120) days nor less than sixty (60) days prior to the
date occurring one year prior to the Transition Date then in effect. The Agent
will promptly deliver to all Banks a written notice of receipt of such a
Certificate of Extension and each Bank shall notify the Agent in writing of its
approval or disapproval of such request (which determination shall be made by
each Bank in its sole discretion) at least thirty (30) days prior to the date
(each such date an "Extension Date") occurring one year prior to the Transition
Date then in effect. Upon the receipt of such notices from all the Banks, the
Agent shall promptly notify the Company of the approval or disapproval of such
request for extension. If consented to by all the Banks such extension shall
be effective on such Extension Date without other or further action by any
party hereto for such additional one-year period. The Banks shall use
reasonable efforts to respond to any such request to extend the Transition Date
and the Termination Date; provided, however, that failure by any Bank to
respond to such requests shall be deemed to be a disapproval of such request
for extension and shall not create a claim against it or have the effect of
extending the obligation of the Banks to accept Drafts hereunder beyond the
Termination Date then in effect or of extending the Transition Date or the
Termination Date; and provided, further, however, that no Bank shall have any
obligation whatsoever to extend the Termination Date and Transition Date in
effect at any time.
1.7. Certain Indemnities. In consideration of the Banks'
acceptance and discounting of Drafts hereunder, the Company agrees to indemnify
and hold the Agent and each Bank harmless from and against any and all stamp
taxes, recording taxes and fees and filing taxes and other fees payable in
connection with the Drafts and/or the acceptance and/or discount thereof
pursuant to this Agreement (the Agent and the Banks acknowledging and agreeing
that no such taxes or fees are currently payable in Canada) and all actions,
claims, damages, losses, liabilities, fines, penalties, costs and expenses of
every nature suffered or incurred by the Agent or any Bank by reason of its
having accepted, discounted or maintained an inventory of Drafts at the
Company's request as provided for herein, provided that such indemnity shall
not apply to the extent that any such action, claim, damage, loss, liability,
fine, penalty, cost or expense arises out of or is based solely upon the
negligence of the party indemnified hereby.
4
<PAGE> 9
1.8. Records. Each Bank shall maintain a record of all
Drafts accepted by it hereunder, of the maturity date thereof, of the Discount
applicable thereto and of the amount of all charges with respect thereto and of
the initial purchasers thereof and the Company agrees that in any action or
proceeding brought to enforce the rights of such Bank hereunder with respect to
such Drafts the entries so recorded on the books of such Bank shall be deemed
prima facie correct.
1.9. Illegality. Notwithstanding any other provisions of
this Agreement, if at any time a Bank shall determine in good faith that any
applicable laws, treaties or regulations or the interpretation thereof makes it
unlawful for such Bank to accept or discount Drafts, or it becomes impractical
for any Bank so to do because of circumstances beyond such Bank's control, it
shall promptly so notify the Agent (which shall in turn promptly notify the
Company and the other Banks) and the obligation of such Bank to accept or
discount Drafts under this Agreement shall terminate until it is no longer
unlawful or impractical for such Bank to accept or discount Drafts. In the
event of any termination of a Bank's obligations under this Section 1.9, such
Bank agrees that it will, should the Company request, negotiate in good faith
with the Company for a replacement credit facility which will preserve, as
nearly as is practical, the benefits of this facility to the Company, provided
that such facility will not in the reasonable judgment of such Bank be greater
in amount, of longer duration, less secure, less profitable or otherwise less
advantageous to such Bank.
1.10. Taxes and Increased Costs. If any Bank shall
determine in good faith that any applicable law, treaty, regulation or
guideline or any interpretation of any of the foregoing by any governmental
authority charged with the administration thereof or any central bank or other
fiscal, monetary or other authority having jurisdiction over such Bank or the
Acceptances contemplated by this Agreement (whether or not having the force of
law) shall:
(i) impose, increase, or deem applicable any reserve,
special deposit or similar requirement against assets held by, or
drafts accepted, purchased or discounted by, such Bank;
(ii) subject such Bank or the Acceptances or the
obligations of the Company with respect thereto to any tax, duty,
charge, stamp tax, fee, deduction or withholding in respect of this
Agreement, any Acceptance or the Company's obligations with respect
thereto, except such taxes as may be measured by the overall net
income of such Bank and imposed by the jurisdiction, or any political
subdivision or taxing authority thereof, in which such Bank's
principal executive office or its accepting branch is located and
except such
5
<PAGE> 10
taxes as would be imposed on the date hereof by Canada or any
political subdivision thereof;
(iii) change the basis of taxation of payments due from the
Company to such Bank hereunder or under or in respect of an Acceptance
(other than by a change in taxation of the overall net income of such
Bank and imposed by the jurisdiction, or any political subdivision or
taxing authority thereof, in which such Bank's principal executive
office or its accepting branch is located); or
(iv) impose on such Bank any penalty with respect to the
foregoing or any other condition regarding this Agreement or the
Acceptances or the discounting thereof except for penalties which
would be imposed on the date hereby by Canada or any political
subdivision thereof;
and such Bank shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to such
Bank of creating or discounting Acceptances or to reduce any amount received or
receivable by such Bank with respect thereto, then the Company shall pay on
demand to such Bank from time to time as specified by such Bank such additional
amounts as such Bank shall reasonably determine are sufficient to compensate
and indemnify it for such increased cost or reduced amount. If any Bank makes
such a claim for compensation, it shall provide to the Company a certificate
executed by an officer of such Bank setting forth the amount of such loss,
cost, expense or premium in reasonable detail (including an explanation of the
basis for and the computation of such loss, cost, expense or penalty), and the
amounts shown on such certificate shall be conclusive and binding absent
manifest error.
1.11. Lending Branch. Each Bank may, at its option, elect
to make and fund its Acceptances and the discount thereof at the branches or
offices specified on the signature pages hereof or on any Assignment Agreement
executed and delivered pursuant to Section 11.13 hereof or at such other of its
branches or offices located outside of Australia as such Bank may from time to
time elect, but the Company shall not be obligated to reimburse any Bank for
any increased cost or reduced amount incident to such Bank accepting or
discounting Drafts outside of Canada.
1.12. Disclosures. For the purposes of the Interest Act
(Canada) and disclosure thereunder, the parties agree to the provisions of
subparagraphs (i) through (vi) of this Section 1.12 hereinafter set forth:
(i) For the purposes of this Section 1.12, the following
terms shall have the following meanings, respectively:
6
<PAGE> 11
(A) "Advance" shall mean an advance or other
amount owing or payable under this Agreement on which interest
shall be payable at a specific Stated Interest Rate;
(B) "Specific Interest Period" shall mean a
period of time designated in this Agreement with respect to
which interest shall be calculated on an Advance at a specific
Stated Interest Rate;
(C) "Stated Interest Rate" shall mean a rate of
interest expressed in or determined in accordance with this
Agreement;
(D) "Year" has the meaning attributed thereto in
the Interpretation Act (Canada), and the term "yearly" has
corresponding meaning: and
(E) "Yearly Stated Interest Rate" shall mean:
(I) with respect to a Stated Interest
Rate which is expressed or determined on the basis of
a year, the Stated Interest Rate; and
(II) with respect to a Stated Interest
Rate which is expressed or determined on the basis of
a period of less than a year (a "Short Period"), the
yearly rate of interest to which such Stated Interest
Rate is equivalent determined in accordance with
paragraph (ii) of this paragraph.
(ii) Where any Stated Interest Rate applicable to a
Specific Interest Period is expressed or determined on the basis of a
Short Period, the yearly rate of interest to which such Stated
Interest Rate is equivalent is determined by multiplying such Stated
Interest Rate by the actual number of days in the year in which such
Specific Interest Period ends and dividing the result by the number of
days in such Short Period.
(iii) The effective yearly rate of interest of a specific
Advance for any period during a year of less than a year (a "Payment
Period") for which interest is made payable at a specific Yearly
Stated Interest Rate (assuming the reinvestment of such interest at
such Yearly Stated Interest Rate and the periodic compounding of such
interest at intervals based on the terms of the Payment Period) may be
determined by the formula (1 + (C/100N)N-1 x 100, expressed
7
<PAGE> 12
as a percentage and not as a decimal, where C is equal to the
arithmetic average of the Yearly Stated Interest Rate, expressed as an
absolute interest rate percent, in effect on each day during the
Payment Period and N is the result obtained by dividing the number of
days comprising the year by the number of days in such Payment Period.
(iv) The effective yearly rate of interest in respect of a
specific Advance for any year (or if the Advance is not outstanding
for the entire year, for the portion of the year during which such
Advance shall be outstanding) is equal to the arithmetic average of
the effective yearly interest rates for each day of each Payment
Period in respect of a specific Advance during such year.
(v) The Company acknowledges that there is a material
difference between the Yearly Stated Interest Rates and the effective
yearly rates of interest referred to above in this paragraph and that
it is capable of making the calculations contemplated by this
paragraph required to determine such effective yearly rates of
interest.
(vi) The Company acknowledges and agrees that all
calculations of interest under this Agreement are to be made on the
basis of the applicable Stated Interest rate and not on the basis of
the effective yearly rates determined in accordance with paragraphs
(iii) and (iv) hereof or on any other basis which gives effect to the
principle of deemed reinvestment.
SECTION 2. FEES, PAYMENTS, REDUCTIONS, APPLICATIONS.
2.1. Facility Fee. For the period from the date hereof to
but excluding the Transition Date, the Company shall pay to the Agent for the
ratable account of the Banks a facility fee at the rate of 3/8 of 1% per annum
on the average daily unused amount of the Available Amount hereunder, such fee
to be payable quarterly in arrears (and calculated for the actual number of
days elapsed on the basis of a year consisting of 365 or, when appropriate, 366
days) on the last day of each June, September, December and March in each year
to and including the Transition Date.
2.2. Agent's Fees. The Company shall pay the Agent an
agent's fee of $5,000 per annum for each Bank party to this Agreement other
than the Agent, such fee to be payable at the time each such other Bank becomes
a party hereto and annually thereafter so long as this Agreement is in effect
or any Acceptances are outstanding hereunder.
2.3. Optional Prepayments. The Acceptances may not be
prepaid.
8
<PAGE> 13
2.4. Mandatory Reductions. In the event that the
outstanding face amount of the Acceptances shall at any time and for any reason
(other than during the ninety (90) day period immediately following a reduction
in the Borrowing Base as the result of a redetermination thereof) exceed the
Available Amount as then determined and computed, the Company shall pay over
the amount of the excess to the Agent immediately upon becoming aware that an
excess exists to be held as collateral security for the Company's obligations
hereunder, (and invested at the request of the Company in investments of the
type identified in clauses (a) through (c) of Section 7.9 hereof maturing on or
before the next Acceptance Date, with the investment earnings thereon to be
released to the Company if and so long as no Default or Event of Default has
occurred and is continuing) and applied to the payment of the Drafts on their
maturity date. Any cash or investments (and the proceeds thereof) held by the
Agent pursuant to this Section 2.4 shall be and constitute collateral security
for the obligations of the Company under the Loan Documents and Related
Documents and shall be pledged to the Agent for that purpose.
2.5. Voluntary Reductions of the Available Amount. The
Company shall have the privilege at any time and from time to time upon notice
to the Agent (which shall promptly notify the Banks) received on or before
12:00 p.m. (Chicago time) at least three Business Days before the Termination
Date to reduce the Available Amount, each such reduction to reduce the
Available Amount otherwise scheduled to be outstanding on each date occurring
thereafter and no such reduction may be made if after giving effect thereto the
outstanding face amount of Acceptances will exceed the Available Amount. Any
reduction of the Available Amount may be reinstated upon request by the Company
at the time of any redetermination of the Borrowing Base provided the requested
increase of the Available Amount shall not cause the Available Amount,
including amounts reinstated, to exceed the lesser of the Borrowing Base or the
Facility Amount.
2.6. Place and Application. All payments required
hereunder shall be made to the Agent at its office at First Canadian Place,
Toronto, Ontario (or at such other place as the Agent may specify) in
immediately available and freely transferable funds at the place of payment.
All payments hereunder shall be made in U.S. Dollars. All such payments shall
be made without setoff or counterclaim and without reduction for, and free
from, any and all present or future taxes, levies, imposts, duties, fees,
charges, deductions, withholdings, restrictions or conditions of any nature
imposed by any government or political subdivision or taxing authority thereof
(collectively, "Taxes"), except for Taxes presently imposed by Canada and its
political subdivisions and Taxes assessable against any Bank with respect to
the overall net income of such Bank. If the Company is prohibited by
applicable law from making any payment free and clear of Taxes it shall pay
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such Taxes and forthwith pay to the affected Bank or Banks through the Agent
such additional amount so that the net amount received by such Bank or Banks
after taking account of such Taxes (and any additional Taxes payable on the
amount of any additional payment called for by this sentence) will equal the
full amount which would have been received by such Bank or Banks had no such
Taxes been paid, deducted or withheld. Payments received by the Agent after
1:00 p.m. (Toronto time) shall be deemed received as of the opening of business
on the next Business Day. Except as otherwise provided in this Agreement, all
payments shall be received by the Agent for the ratable account of the Banks,
and shall be promptly distributed by the Agent ratably to the Banks except that
payments which pursuant to the terms hereof are for the use and benefit of the
Agent shall be retained by it for its own account and payments received to
reimburse a Bank for a cost peculiar to that Bank shall be remitted to it.
Anything contained herein to the contrary notwithstanding, all
payments and collections received in respect of the Acceptances and all
proceeds of the Collateral or recoveries on the Guaranties received, in each
instance, by the Agent or any of the Banks after the occurrence of an Event of
Default shall be distributed as follows:
(a) first, to the payment of any outstanding costs and
expenses incurred by the Agent in monitoring, verifying, protecting,
preserving or enforcing the liens on the Collateral or in protecting,
preserving or enforcing rights under the Loan Documents and in any
event including all costs and expenses of a character which the
Company has agreed to pay under Section 11.11 hereof (such funds to be
retained by the Agent for its own account unless it has previously
been reimbursed for such costs and expenses by the Banks, in which
event such amounts shall be remitted to the Banks to reimburse them
for payments theretofore made to the Agent);
(b) second, to the payment of any outstanding principal,
interest or other fees or amounts due under the Loan Documents or
Related Documents not described in part (c) below ratably, as among
the Banks in accord with the amount of such owing each;
(c) third, to the Agent to be held as collateral security
for Drafts accepted but not yet paid and for contingent liabilities
not yet due; and
(d) fourth, to whoever may be lawfully entitled thereto.
2.7. Capital Adequacy. If any Bank shall determine that
any applicable law, rule or regulation regarding capital
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<PAGE> 15
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
compliance by such Bank (or its accepting and/or discounting office) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has the
effect of reducing the rate of return on such Bank's capital as a consequence
of its obligations hereunder or the Acceptances or credit extended by it
hereunder to a level below that which such Bank could have achieved but for
such law, rule, regulation, change or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time as specified by such Bank the
Company shall pay such additional amount or amounts as will compensate such
Bank for such reduction. A certificate of any Bank claiming compensation under
this Section 2.7 and setting forth the additional amount or amounts to be paid
to it hereunder in reasonable detail shall be final and conclusive absent
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 3. THE COLLATERAL AND THE GUARANTIES.
The obligations of the Company under the Loan Documents
(except the obligations contained in the third and fourth sentences of the
first paragraph of Section 2.6 hereof) and Related Documents are (i) secured by
valid, perfected and enforceable first liens on all capital stock of the
Pledged Subsidiaries, in each instance whether now owned or existing or
hereafter issued, and all proceeds thereof (collectively the "Collateral") and
(ii) unconditionally guaranteed by the Guarantors. The Company agrees that it
will and will cause any other owners of any of the Collateral to, from time to
time at the request of the Agent or the Required Banks execute and deliver such
documents and do such acts and things as the Agent or the Required Banks may
reasonably request in order to provide for, continue or perfect such liens.
The Company agrees that it will cause any entity which becomes a Pledged
Subsidiary to execute and deliver to the Agent and the Banks a Guaranty.
SECTION 4. THE BORROWING BASE.
4.1. Amount and Determination. The Borrowing Base shall,
as of any date, be an amount equal to the lesser of (i) the Maximum Borrowing
Base and (ii) the sum of the loan value (determined as hereinafter set forth)
of the Borrowing Base Assets. The loan value of the Borrowing Base Assets
shall be determined by the Agent and the Banks, according to the procedures set
forth below in this Section 4.1, using their from time to time customary
standards and practices for evaluating oil and gas loans, including
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<PAGE> 16
an evaluation of the projected revenues which the Company and the owners of the
Borrowing Base Assets shall require for their other needs, all based upon
engineering reports, production data from the Borrowing Base Assets, other
information submitted by the Company and additional factors and data which the
Agent and the Banks believe relevant, the determination by the Agent and the
Banks of the Borrowing Base as of any time to be final and conclusive absent
manifest error, provided that the Banks have acted in good faith in connection
therewith.
In determining the Borrowing Base, the Company acknowledges
and agrees that the Agent and the Banks will take into consideration risks
incident to foreign currency conversions, exchange and export controls, taxes,
restrictions or potential restrictions on repatriation of earnings and the
proceeds of asset dispositions and other sovereign risks which may result in a
reduction in the values included for Borrowing Base Assets located in foreign
jurisdictions over what such values would have been had such assets been
located within the United States or Canada and it is further acknowledged and
agreed that the Agent and the Required Banks shall have the right to reconsider
such matters at the time of redetermination of the Borrowing Base and under the
circumstances set forth in Section 4.3(c) hereof.
Based on the information and data heretofore submitted to the
Banks, the Banks have determined that the Borrowing Base as of the date hereof
is $25,000,000 which will, subject to the other provisions of this Agreement,
continue to be used for the computation of the Borrowing Base until the next
redetermination. The Company shall submit engineering reports pursuant to
Section 7.5(f) and (g) for regularly scheduled Borrowing Base redeterminations,
together with such other information and data as the Required Banks may
reasonably request, evaluating the Borrowing Base Assets and prepared in
substantially the same manner and containing substantially the same data and
projections as are contained in the reports dated as of January 1994 ("the
Initial Report").
Except as otherwise provided herein, the procedures for
determining the Borrowing Base shall be as follows: the Agent shall make a
determination of the Borrowing Base, based upon the most recent engineering
reports submitted, production data from the Borrowing Base Assets, other
factors and data customarily used by it in making such evaluations and
otherwise in accordance with the criteria set forth in this Section 4.1 on or
prior to April 25 and October 25 in each year (and in the case of a
redetermination pursuant to Section 4.3(a), within 25 days of receipt of all
information to be provided by the Company pursuant to such Section). Within
ten (10) days following such determination, the Agent shall notify the Banks in
writing of such determination. Each Bank shall notify the Agent in writing, by
Telex or facsimile
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transmission, whether it approves or disapproves of such determination within
twenty (20) Business Days of its receipt of such notice from the Agent;
provided that any Bank which does not so notify the Agent shall be deemed to
have approved of such determination. Upon the approval (or deemed approval) by
the Required Banks, such determination shall, subject to the other provisions
of this Section 4.1, be the Borrowing Base, and the Agent shall promptly notify
the Company in writing of such redetermined Borrowing Base. If any such
determination results in a decrease in the Borrowing Base, the Agent will, at
the request of the Company, provide it with a statement in reasonable detail of
the computation of the Borrowing Base, which will be final and conclusive
absent manifest error.
4.2. The Borrowing Base Assets. The assets included in
the determination of the Borrowing Base as of the date hereof (the "Initial
Borrowing Base Assets") are as described in the Initial Report previously
delivered to the Banks and the Company represents and warrants that all such
assets satisfy the criteria set forth below. In order to be eligible for
designation as a Borrowing Base Asset such asset must meet each of the
following criteria unless the Required Banks otherwise agree in any instance,
and by requesting that any asset be included as a Borrowing Base Asset, the
Company shall be deemed to have represented and warranted that it satisfies all
such criteria:
(i) It consists of a Proved Producing Property or is an
Oil and/or Gas Property of a type which the Required Banks find
acceptable for inclusion in the Borrowing Base;
(ii) The Company or a Pledged Subsidiary has defensible
title (subject only to minor title defects and irregularities and to
liens permitted by Section 7.8 hereof which do not materially affect
the value thereof) to the Borrowing Base Asset in question which
entitles it to a net interest in the production therefrom equal to
that disclosed to the Banks; and
(iii) Any representations or covenants contained herein
with respect to Borrowing Base Assets are true and correct and
complied with in the case of the Borrowing Base Asset in question.
4.3. Special Adjustments to the Borrowing Base.
(a) Determination of Borrowing Base at the Request of the
Company. The Company may request one Borrowing Base redetermination during any
twelve month period by delivery to the Agent and the Banks of a written request
for such determination. In connection therewith, the Company shall deliver to
the Agent and the Banks such reports and information concerning the Borrowing
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<PAGE> 18
Base Assets as the Agent shall reasonably deem appropriate. Following receipt
of such request, reports and information, the Agent and the Banks shall
determine the Borrowing Base using the procedures set forth in Section 4.1. In
connection with each such redetermination, the Company shall pay to the Agent,
for its own use and benefit an engineering evaluation fee of $10,000.
(b) Sales. In the event that any Borrowing Base Asset is
leased, sold, transferred or conveyed (other than sales or transfers from the
Company or a Pledged Subsidiary to a Pledged Subsidiary or the Company, (i) if
the sale is permitted under Section 7.13(c), the Company shall notify the Agent
of such sale and the loan value of the Borrowing Base Assets shall be reduced
by an amount equal to the proceeds of such sale net of reasonable incidental,
brokerage and legal costs actually paid to third parties, taxes associated with
such sale payable in cash concurrently with the consummation of such sale and
net of an amount to be determined by the Company acting reasonably and in good
faith equal to the income taxes estimated to be payable by the Company or the
applicable Pledged Subsidiary in cash in respect of such sale, provided
reserves for such taxes are established by the Company or such Pledged
Subsidiary; and (ii) if the sale is not permitted under Section 7.13(c) (or in
the event any Borrowing Base Asset ceases to satisfy any of the criteria set
forth in Section 4.2 for inclusion as a Borrowing Base Asset), (x) the Company
shall notify the Banks prior to such sale (or promptly following that date on
which any Borrowing Base Asset ceases to satisfy any of the criteria set forth
in Section 4.2), (y) the Agent and the Banks shall recalculate the loan value
of the Borrowing Base Assets to reflect the deletion of the asset in question
and notify the Company of the adjustment to the loan value of the Borrowing
Base Assets, and (z) no such sale, lease, transfer or conveyance shall be made
until any necessary reduction to the Borrowing Base has been made or if after
giving effect thereto a Default or Event of Default would have occurred and be
continuing or if the aggregate outstanding face amount of the Acceptances would
exceed the amount of the Borrowing Base as so reduced.
(c) Casualties and Adverse Claims. The Company shall
notify the Banks of the assertion or filing of any material adverse claim,
defect or encumbrance affecting or purporting to affect the Company's or any
Pledged Subsidiary's title to all or any portion of any of the Borrowing Base
Assets or of any blow out or other material casualty affecting any Borrowing
Base Asset or the production of oil or gas therefrom, of any withholding by any
person of any payment of sums due in respect of oil or gas produced which
withholding materially diminishes the value of the Borrowing Base Assets and
which results from an allegation or claim affecting the Company's or any
Pledged Subsidiary's rights to such payment, of any material breach by any
party of any obligation under a Significant Agreement and of any other
occurrence which materially
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<PAGE> 19
diminishes the value of the Borrowing Base Assets and/or the production or sale
of oil and/or gas therefrom and/or the right of the Company or any Pledged
Subsidiary to receive all of such sums, in each case promptly after any
responsible officer of the Company becomes aware of same. The Required Banks
shall have the right to reduce the Borrowing Base, either temporarily or
permanently, by the amount of such claim or dispute, or the diminution in value
caused by such claim or dispute, as determined in good faith by the Required
Banks, with respect to the Borrowing Base Assets as to which a claim or dispute
has arisen or a casualty or other event giving rise to a diminution in value or
suspension or reduction of payment has occurred. The failure of the Required
Banks to make any such reduction upon receipt of any such notice shall not
preclude their later election to so reduce the Borrowing Base.
(d) Exogenous Factors. In the event that between
determination dates, in the reasonable determination of the Agent, a material
change occurs in oil and/or gas prices, taxes, anticipated inflation rates as
reflected in the money markets, exchange rates, export controls, sovereign
risks, or other material external factors or assumptions used by the Banks in
determining the Borrowing Base as of the last determination date in accord with
their customary standards and practices applicable to oil and gas loans or if
any other material adverse change shall, in the reasonable determination of the
Agent, have occurred in the financial condition, operations, assets, business,
prospects or properties of the Company or any Pledged Subsidiary, then in that
event the Required Banks may redetermine the Borrowing Base between
determination dates by adjusting such value to reflect the change which has
occurred. For the purposes hereof, a material change in external factors shall
be deemed to materially affect the value of the Borrowing Base Assets if, in
the sole determination of the Agent, the change would result in a decrease in
the value of the Borrowing Base Assets under the customary standards and
practices used by the Required Banks of more than ten percent (10%) of the
Borrowing Base then in effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Banks as follows:
5.1. Organization and Power. The Company is duly
organized and existing under the laws of Western Australia, and is duly
licensed or qualified to do business in each jurisdiction where the nature of
the assets owned or leased by it or business conducted by it requires such
licensing or qualification and in which the failure to be so licensed or
qualified would materially and adversely affect the business, properties or
operations of the Company and its Subsidiaries taken as a whole or the value or
marketability of the Borrowing Base Assets taken as a whole and has
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<PAGE> 20
all necessary corporate power to carry on its present business. The Company
has full right, power and authority to enter into this Agreement, to issue the
Drafts, to execute and deliver the Collateral Documents and Related Documents
executed and delivered or to be executed and delivered by it and to perform
each and all of the matters and things herein and therein provided for. The
Loan Documents and Related Documents do not, nor will the performance or
observance by the Company of any of the matters and things herein or therein
provided for, contravene any provision of law (except where such contravention
would not affect the validity or enforceability of any of the Loan Documents or
Related Documents or have a material adverse effect on the financial condition
or business prospects of the Company or its Subsidiaries), or any charter or
by-law provision of the Company or any material covenant, indenture or
agreement of or affecting the Company or any of its properties.
5.2. Subsidiaries. Each Pledged Subsidiary is duly
organized and existing under the laws of the jurisdiction in which it was
incorporated, has full and adequate corporate power to carry on its business as
now conducted and is duly licensed or qualified in all jurisdictions wherein
the nature of its business requires such licensing or qualification and in
which the failure to be so licensed or qualified would materially and adversely
affect the business, properties or operations of the Company and the Pledged
Subsidiaries taken as a whole or the value or marketability of the Borrowing
Base Assets taken as a whole. All of the outstanding capital stock of all of
such Pledged Subsidiaries has been validly issued, is fully paid and
nonassessable and, to the extent and in the percentages set forth in Exhibit B
hereto, is owned by the Company or one or more of the Subsidiaries free and
clear of all liens, security interests, charges and encumbrances (except for
liens in favor of the Agent to the extent permitted by Section 7.8 hereof).
There are outstanding no commitments or other obligations of any Pledged
Subsidiary to issue, and no options, warrants or other rights of any individual
or entity to acquire, any shares of any class of capital stock of any Pledged
Subsidiary. All Subsidiaries are listed on Exhibit B.
5.3. Guaranties and Collateral Documents . The Pledged
Subsidiaries have all necessary right, power and authority to execute and
deliver the Guaranties and Collateral Documents and any document or instrument
related thereto executed and delivered or to be executed and delivered by them,
and to observe and perform all of the matters and things therein provided for,
and the execution and delivery of such Guaranties and Collateral Documents will
not, nor will the observance or performance of any of the matters and things
therein provided for, contravene any provision of law (except where such
contravention would not affect the validity or enforceability of any of the
Loan Documents or have a material adverse effect on the financial condition or
business
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prospects of the Company or its Subsidiaries), or any charter or bylaw
provision of any of the Pledged Subsidiaries or any material covenant,
indenture or agreement of or affecting any of the Pledged Subsidiaries or of
any of their properties.
5.4. Financial Statements. The financial report of the
Company and its Subsidiaries for the year ended December 31, 1993, including a
consolidated balance sheet as of December 31, 1993, and a consolidated
statement of profit and loss for the twelve months ended on said date prepared
by the Company, truly and accurately reflect the financial condition of the
Company and its Subsidiaries as at said date and the results of operations for
the period covered thereby. The Company and its Subsidiaries have no
contingent liabilities which are material to the Company and its Subsidiaries
other than as indicated on said financial statements and since the date of such
financial statements, there have been no material adverse changes in the
condition, financial or otherwise, of the Company and its Subsidiaries.
5.5. Financial Information. The consolidated financial
statements of Apache dated December 31, 1993, copies of which have been
furnished to the Agent and each Bank, have been prepared in accordance with
GAAP in effect on the date of such statements, and present fairly the
consolidated financial condition of the corporations covered thereby as at the
dates thereof and the results of their operations for the periods then ended.
5.6. Litigation and Taxes. There is no litigation or
governmental proceeding pending, nor to the knowledge of the Company
threatened, against the Company or any Subsidiary which if adversely determined
would result in any material adverse change in the financial condition or
properties, business, prospects or operations of the Company or any Subsidiary.
No objections to or controversies in respect of the income or other tax returns
of the Company or its Subsidiaries are pending or threatened which, if
adversely determined, would have a material adverse effect on the financial
condition of the Company and its Subsidiaries. Except as provided herein, no
authorization, consent, license, exemption or filing or registration with any
court or governmental department, agency or instrumentality, is or will be
necessary to the valid execution, delivery or performance by the Company or the
Pledged Subsidiaries of the Loan Documents or Related Documents.
5.7. Burdensome Contracts with Affiliates. Neither the
Company nor any Subsidiary is a party to any contracts or agreements with any
of its Affiliates on terms and conditions which, taken as a whole, are less
favorable to the Company or such Subsidiary than would be usual and customary
in similar contracts or agreements between Persons not affiliated with each
other.
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5.8. The Borrowing Base Assets. All of the leasehold
estates, mineral interests, licenses, concessions, Significant Agreements and
other interests constituting part of the Borrowing Base Assets are valid and
subsisting and mortgageable or assignable, and (with respect to oil and gas
production) provide for the continuation or renewal thereof so long as oil
and/or gas is produced and saved therefrom and contain no unusual or unduly
burdensome covenants or restrictions or provisions for the forfeiture thereof
(other than covenants and restrictions which are customary in the oil and gas
industry and which do not materially detract from the value of the interest
therein of the owner) and the Company and Pledged Subsidiaries have defensible
title to the Borrowing Base Assets, free and clear of all liens, defects and
encumbrances other than such thereof as may be permitted hereunder and minor
title defects and irregularities which do not materially affect the value
thereof and such title entitles the Company or a Pledged Subsidiary to a net
interest in production from the Borrowing Base Assets equal to the net interest
in production set forth in the most recent report received by the Banks
pursuant to Sections 7.5(f) or (g).
5.9. Full Disclosure. The statements and information
furnished to the Agent and the Banks in connection with the negotiation of this
Agreement and the commitments by the Banks to provide all or part of the
financing contemplated hereby do not, taken as a whole, contain any untrue
statement of a material fact or omit a material fact necessary to make the
material statements contained therein or herein not misleading except for such
thereof as were corrected in subsequent written statements furnished the Banks,
the Banks acknowledging that as to any projections furnished to the Banks, the
Company only represents that the same were prepared on the basis of information
and estimates the Company believes to be reasonable. There is no fact peculiar
to the Company or its Subsidiaries which the Company has not disclosed to the
Banks in writing which materially adversely affects nor, so far as the Company
now can reasonably foresee, may reasonably be expected to materially adversely
affect the properties, business, profits or condition (financial or otherwise)
of the Company or its Subsidiaries. Without limiting the generality of the
foregoing, the factual data contained in or submitted by the Company and the
Pledged Subsidiaries in connection with the preparation of the Initial Report
and all other information and data submitted to the Banks concerning the
Borrowing Base Assets and the values thereof, the past, present and estimated
future production therefrom and the arrangements for and pricing of sales
therefrom is, to the best knowledge of the Company, true, correct and complete
and the Company has not failed to deliver any information or data available to
it or to the Pledged Subsidiaries which is inconsistent with any of that
submitted.
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5.10. Compliance with Law. Except where any default or
failure to comply would not have any material adverse effect on the Company and
its Subsidiaries taken as a whole, or on Hadson Australia Development Pty. Ltd.
or on of Petro Energy Limited, (a) neither the Company nor any Subsidiary is
(i) in default with respect to any order, writ, injunction or decree of any
court or (ii) to the best knowledge of the Company, in default in any material
respect under any law, ordinance, order, regulation, license or demand of any
federal, state, municipal or other governmental agency; and (b) the Company and
its Subsidiaries are each in compliance with all applicable environmental,
health and safety statutes and regulations and, to the knowledge of the Company
neither it nor any Subsidiary will have acquired, incurred or assumed, directly
or indirectly, any material contingent liability in connection with the release
of any toxic or hazardous waste or substance into the environment.
5.11. Use of Proceeds. The proceeds of the Drafts shall be
applied to the acquisition of Oil and/or Gas Properties and for general
corporate purposes of the Company, in each case in connection with the Oil and
Gas Business of the Company in Australia. The Company irrevocably authorizes
the Banks to (and the Banks shall) apply the proceeds of Drafts discounted
pursuant hereto on any date first to the payment of any Drafts maturing on such
date.
5.12. No Business in Canada. Neither the Company nor any
Subsidiary carries on or will carry on business in Canada.
5.13. Regulation G, U and X. Neither the Company nor any
Subsidiary is engaged in the business of extending credit for the purpose of
carrying margin stock (as defined in F.R.S. Regulations G, U and X), and no
proceeds of any Drafts will be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation G, U or X.
SECTION 6. CONDITIONS PRECEDENT.
6.1. All Acceptances. The obligation of the Banks to
accept or discount any Draft shall be subject to the provisions of Sections 8.2
and 8.3 hereof and shall also be subject to the conditions precedent that as of
the time of the creation of each Acceptance or the discount thereof:
(a) each of the representations and warranties set forth
herein or in the Collateral Documents or Guaranties shall be true and
correct, as of the date of such creation or discount (except that the
representations and warranties made in Sections 5.4 and 5.5 hereof
shall be deemed to refer to the most recent financial statements
delivered to the Banks pursuant to Section 7.5);
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(b) no material adverse change shall have occurred in the
financial condition or business prospects of Apache, the Company or
its Subsidiaries or any Guarantor;
(c) no Default or Event of Default shall have occurred
and be continuing;
(d) the Agent shall have received an Acceptance Request
in the form annexed hereto as Exhibit A (which may be by facsimile
transmission thereof to be followed by a hard copy original);
(e) the Banks shall have received the Stamping Fee for
the Drafts then to be accepted (provided that unless the Company has
paid the Stamping Fee in cash, the Banks are hereby irrevocably
authorized to deduct the amount thereof from the proceeds of the
drafts being accepted and discounted); and
(f) the Agent shall have received either (i) a copy of a
certificate or certificates issued by the Australian Taxation Office
under section 128F(4) of the Income Tax Assessment Act 1936 of
Australia in respect of all prior Acceptances or all Acceptances
whenever issued or (ii) a certificate of the Company's vice president
and treasurer stating that such certificate shall not be forthcoming.
Any request made by the Company to the Agent for the acceptance or discount of
a Draft shall be deemed to constitute a representation and warranty that the
foregoing statements are true and correct.
6.2. Conditions to Effectiveness. The effectiveness of
this Agreement and the obligation of each Bank to accept Drafts hereunder are
subject to the satisfaction of the following conditions precedent:
(a) The Agent shall have received the following for the
account of the Banks (each to be properly executed and completed) and
the same shall have been approved as to form and substance by the
Banks:
(i) copies (executed or certified as may be
appropriate) for each Bank of all legal documents or
proceedings taken in connection with the execution and
delivery of this Agreement and the other Loan Documents, to
the extent the Agent or its counsel may reasonably request,
including, without limitation, certificates as to the
incumbency and authority, and setting forth a specimen
signature of, each officer of the Company or any Guarantor or
Pledged Subsidiary who is to sign any document hereunder;
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(ii) any Collateral Documents which are required
by this Agreement to be delivered to the Agent and which have
not previously been delivered to the Agent, any documentation
necessary to perfect the liens thereby created, and any
documentation which, in the reasonable determination of the
Agent, is necessary to perfect or continue the liens created
pursuant to any Collateral Document;
(iii) the certificates evidencing the stock of each
Pledged Subsidiary other than Hadson Australia Development Pty
Limited A.C.N. 009 140 854 and Petro Energy Limited A.C.N. 000
293 729, together with duly executed share transfers therefor
and acknowledgments of pledge from the issuers thereof;
(iv) Guaranties from each Pledged Subsidiary other
than Hadson Australia Development Pty Limited A.C.N. 009 140
854 and Petro Energy Limited A.C.N. 000 293 729;
(v) the liens evidenced by the Collateral
Documents executed by each Pledged Subsidiary other than
Hadson Australia Development Pty Limited A.C.N. 009 140 854
and Petro Energy Limited A.C.N. 000 293 729 shall have been
duly perfected in the manner required by law so as to be
effective against all creditors of and purchasers from the
Company and the Pledged Subsidiaries including, without
limitation, stamping and registration required under the laws
of any State or territory of Australia;
(vi) a consent and acknowledgement duly executed
by each of the Guarantors, in form and substance satisfactory
to the Agent, consenting to this Agreement and acknowledging
that the obligations of such Guarantor continue in full force
and effect with respect to the obligations of the Company and
such Guarantor pursuant to this Agreement and each Loan
Document;
(vii) either (x) an indicative letter from the
Australian Taxation Office indicating that, based on the
information submitted, a certificate of exemption under
section 128F(4) of the Income Tax Assessment Act 1936 of
Australia may be expected to be issued in respect of
Acceptances under this Agreement or (y) a certificate of the
Company's vice president and treasurer stating that such
letter shall not be forthcoming;
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(viii) copies of the Significant Agreements
certified to be true and correct as of the date hereof;
(ix) a summary of the insurance coverages
maintained by the Company and the Subsidiaries;
(x) an organizational chart for the Company and
the Pledged Subsidiaries and a listing of the Oil and/or Gas
Properties owned by each Subsidiary;
(xi) Subordination Agreements, in form and
substance satisfactory to the Agent, from each of Apache
Corporation and Hadson Energy Resources Corporation;
(xii) a certificate of the Company's vice president
and treasurer listing the production licenses, pipeline
licenses and exploration permits in effect on the date of such
certificate; and
(xiii) an amendment, in form and substance
satisfactory to the Agent, of that certain Subordination Deed
among the Company, Hadson Australia Development Pty. Limited,
Petro Energy Limited and the Agent, dated June 13, 1991.
(b) The Agent shall have received for its own account
such fees as the Company has otherwise agreed to pay to the Agent
together with a letter confirming ongoing fee arrangements;
(c) The Agent shall have received and approved such
evidence as it shall reasonably require as to the state of title to
the Borrowing Base Assets and the truthfulness of the representations
contained in Sections 5.7 and 5.9 hereof;
(d) an acknowledgement of the Company, satisfactory in
form and substance to the Banks, that all present and future claims of
the Company against the Pledged Subsidiaries are or continue to be
subordinated to the obligations of the Pledged Subsidiaries under the
Guaranties pursuant to that certain Subordination Deed among the
Company, Hadson Australia Development Pty Limited, Petro Energy
Limited and the Agent dated June 13, 1991,
(e) Legal matters incident to the execution and delivery
of this Agreement and the other instruments and documents contemplated
hereby shall be satisfactory to the Banks and their counsel and the
Banks shall have received the favorable written opinion of acceptable
counsel for the
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Company and the Guarantors in form and substance satisfactory to the
Banks and their counsel and with such exceptions, qualifications and
limitations as shall be acceptable to the Banks and their counsel,
with respect to:
(i) the due organization and existence of the
Company and the Guarantors and the due licensing or
qualification of the Company and the Guarantors in all
jurisdictions where the nature of the assets owned or leased
by it or business conducted by it requires such licensing or
qualification and in which the failure to be so licensed or
qualified would materially and adversely affect the business,
properties or operations of the Company and its Subsidiaries
taken as a whole or the value or marketability of the
Borrowing Base Assets;
(ii) the power and authority of the Company and
the Guarantors to enter into this Agreement and other
instruments and documents contemplated hereby and Related
Documents and the power and authority of the Company and the
Guarantors to perform and observe all the matters and things
herein and therein provided for and the fact that the
execution and delivery of this Agreement and other instruments
and documents contemplated hereby and Related Documents will
not, nor will the observance or performance of any of the
matters or things therein or herein provided for, contravene
any provision of law known to counsel after due inquiry or of
the Charter or By-Laws of the Company or of any Guarantor or
of any provision of any material agreement binding upon the
Company or of any Guarantor or affecting any of their
properties or assets;
(iii) the due authorization for and the validity
and enforceability of this Agreement and each other document
or agreement contemplated hereby and each other Loan Document;
(iv) the fact that no governmental authorization
or consent is required with respect to the lawful execution
and delivery of this Agreement and each other document or
agreement contemplated hereby or Related Documents or if any
such consent is necessary, that the same has been obtained and
is in full force and effect;
(v) the fact that the ordinary shares of the
Pledged Subsidiaries are fully paid and not subject to any tax
or other government impost;
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(vi) the lack, to the knowledge of such counsel,
of any material legal or administrative proceedings pending or
threatened against the Company or any Guarantor; and
(vii) that an Australian court would recognize and
enforce a judgment obtained against the Company or the
Guarantors in an Ontario or Illinois court.
In expressing its opinion as to the validity and
enforceability of those Loan Documents governed by the laws of Ontario, counsel
may assume that the laws of Ontario do not differ in any respect material to
its opinion from those of Western Australia if Ontario counsel advises the
Agent that such documents would be valid (subject to customary exceptions
affecting creditor's rights generally and assuming that they were duly
authorized, executed and delivered by, and within the corporate power of, the
parties thereto), under the laws of Ontario.
SECTION 7. COMPANY COVENANTS.
The Company agrees that, so long as any credit is available to
or in use by the Company hereunder, except to the extent compliance in any case
or cases is waived in writing by the Required Banks:
7.1. Maintenance of Business. The Company will preserve
and keep in force and effect, and cause each of its Subsidiaries to preserve
and keep in force and effect, all material licenses and permits necessary to
the ownership, development and operation of the Borrowing Base Assets.
7.2. Maintenance. The Company will maintain, preserve and
keep its plant, properties and equipment in good repair, working order and
condition and will from time to time make all needful and proper repairs,
renewals, replacements, additions and betterments thereto so that at all times
the efficiency thereof shall be fully preserved and maintained and will cause
each Subsidiary so to do in respect of its properties.
7.3. Taxes. The Company will duly pay and discharge, and
will cause each Subsidiary to duly pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against the Company, or such
Subsidiary or against their respective properties, in each case before the same
become delinquent and before penalties accrue thereon, unless and to the extent
that the same are being contested in good faith and by appropriate proceedings.
7.4. Insurance. The Company will insure and keep insured,
and will cause each Subsidiary to insure and keep insured,
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<PAGE> 29
in good and responsible insurance companies, all material insurable property
owned by it which is of a character usually insured by companies similarly
situated and operating like properties; and will insure, and cause each
Subsidiary to insure, such other hazards and risks (including employers' and
public liability risks) in good and responsible insurance companies as and to
the extent usually insured by companies similarly situated and conducting
similar businesses. The Company will upon request of any Bank furnish a
certificate setting forth in summary form the nature and extent of the
insurance maintained pursuant to this Section 7.4.
7.5. Financial Reports. The Company will, and will cause
each Subsidiary to, maintain a standard and modern system of accounting in
accordance with sound accounting practice and will furnish to the Banks and
their duly authorized representatives such information respecting the business
and financial condition of the Company and its Subsidiaries, as any Bank may
reasonably request; and without any request, will furnish to the Banks:
(a) as soon as available, and in any event within 60 days
after the close of each quarterly fiscal period of the Company other
than at fiscal year end, a copy of the balance sheet, statement of
earnings and statement of cash flow of the Company and its
Subsidiaries for such period, prepared on a consolidated basis in
accordance with GAAP and certified to by the president or the vice
president and treasurer thereof with such certificate to also (i)
state that the signer thereof has reexamined the provisions of this
Agreement and that no Default or Event of Default has occurred or is
continuing or if any of such has occurred or is continuing stating the
nature thereof and the action, if any, which the Company proposes to
take with respect thereto, (ii) include a statement of all sales of
Borrowing Base Assets during the preceding twelve months, and (iii)
include such information as may be necessary to confirm the Company's
compliance with the covenants set forth in Section 7.17;
(b) as soon as available, and in any event within 90 days
after the close of each fiscal year, a copy of the report for such
year and accompanying financial statements, including balance sheet,
statement of earnings and statement of cash flow on a consolidated
basis for the Company and its Subsidiaries, all as prepared in
accordance with GAAP and certified by the president or the vice
president and treasurer of Apache with such certificate to also (i)
state that the signer thereof has reexamined the provisions of this
Agreement and that no Default or Event of Default has occurred and is
continuing or if any of such has occurred or is continuing stating the
nature thereof and the action, if any, which the Company proposes to
take with respect thereto, (ii) include a statement of all sales of
Borrowing Base Assets during the
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<PAGE> 30
preceding twelve months and (iii) include such information as may be
necessary to confirm the Company's compliance with the covenants set
forth in Section 7.17;
(c) as soon as available and in any event within 60 days
after the close of each quarterly fiscal period of the Company other
than at fiscal year end and within 90 days after the close of each of
the fiscal years of the Company, the Company shall provide information
as to the gross volumes and proceeds received by the Company and the
Pledged Subsidiaries during the immediately preceding quarterly fiscal
period from the sale of oil and gas;
(d) as soon as available and in any event within 90 days
after the close of each of the fiscal years of Apache, an unqualified
audit report certified by independent certified public accountants,
acceptable to the Required Banks, prepared in accordance with GAAP on
a consolidated basis, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus
statements, and a statement of cash flows for Apache and its
Subsidiaries;
(e) as soon as available and in any event within 60 days
after the close of the first three quarterly periods of each of its
fiscal years, for Apache and its Subsidiaries, consolidated unaudited
balance sheets as of the close of each such period and consolidated
profit and loss statements and a statement of cash flows for the
period from the beginning of such fiscal year to the end of such
quarter;
(f) as soon as available after each January 1st and in
any event by March 31st of each year, an updated engineering report in
form and substance satisfactory to the Agent, prepared by the Company
and audited and certified by an Acceptable Engineer, together with
such other information and data as the Required Banks may reasonably
request (including, without limitation, a listing of changes, if any,
to the production licenses, pipeline licenses and exploration permits
then in effect from the previous information delivered pursuant to
Section 6.2(a)(xii) or this clause (f), as the case may be),
evaluating the Borrowing Base Assets as of January 1 of such year;
(g) as soon as available after each June 30th and in any
event by September 30th of each year, a report in form and substance
satisfactory to the Agent, prepared by the Company, together with such
other information and data as the Required Banks may reasonably
request (including, without limitation, a listing of changes, if any,
to the production licenses, pipeline licenses and exploration permits
then in effect from the previous information delivered pursuant to
26
<PAGE> 31
Section 6.2(a)(xii) or this clause (g), as the case may be),
evaluating the Borrowing Base Assets as of June 30 of such year;
(h) promptly after the end of each calendar year and in
any case no later than April 1st of the next succeeding calendar year,
a budget for each of the next succeeding three calendar years
(including specific capital expenditures information) for the Company
and its Subsidiaries in reasonable detail, based on reasonable
assumptions set forth therein acceptable to the Required Banks and in
form and substance satisfactory to the Required Banks;
(i) promptly after actual knowledge thereof shall have
come to the attention of any responsible officer of the Company,
written notice of (i) any threatened or pending litigation or
governmental proceeding or assessment against the Company or any
Subsidiary which if adversely determined would materially adversely
affect the business and properties of the Company and its Subsidiaries
on a consolidated basis, (ii) the occurrence of any Default or Event
of Default, (iii) any material breach by any party of its obligations
under any of the Significant Agreements and (iv) any occurrence or
condition which may reasonably be expected to have a material adverse
effect on the properties, business, operations, condition (financial
or otherwise) of the Company or any Pledged Subsidiary or to
materially adversely affect the ability of the Company or any Pledged
Subsidiary to fulfill its obligations pursuant to this Agreement, any
other Loan Document, or any Related Document; and
(j) such other information (including engineering,
financial and non-financial information) as the Agent or any Bank may
from time to time reasonably request.
The Company will permit representatives of any Bank at all
reasonable times to examine and make extracts from the books and records of the
Company and its Subsidiaries and to examine their assets and access thereto
shall be permitted for such purpose.
7.6. Compliance with Laws. The Company will comply, and
will cause each Subsidiary to comply, with all laws, ordinances and
governmental rules and regulations to which it is subject, including without
limitation, all laws, ordinances, governmental rules and regulations relating
to environmental protection in all applicable jurisdictions, the violation of
which could materially and adversely affect the properties, business, profits
or condition of the Company and its Subsidiaries taken as a whole or the
Borrowing Base Assets taken as a whole or would result in any lien
27
<PAGE> 32
or charge upon any property of the Company or any Subsidiary not permitted
hereby.
7.7. Nature of Business. Neither the Company nor any
Subsidiary will engage in any business or activity other than the Oil and Gas
Business and activities reasonably incidental thereto.
7.8. Liens. The Company will not, nor will it permit any
Pledged Subsidiary to, pledge, mortgage or otherwise encumber or subject to, or
permit to exist upon or be subjected to, any lien, security interest or charge
upon, any assets or property of any kind or character at any time owned by the
Company or any Subsidiary; provided, however, that nothing in this Section
contained shall operate to prevent:
(a) liens, pledges or deposits in connection with
workmen's compensation, social security obligations, assessments,
statutory obligations or other similar charges, good faith deposits in
connection with tenders, contracts or leases to which the Company or a
Subsidiary is a party or other deposits required to be made in the
ordinary course of business and not in connection with borrowing money
or obtaining advances or credit; provided in each case that the
obligation or liability arises in the ordinary course of business and
is not overdue, or if overdue, is being contested in good faith by
appropriate proceedings;
(b) inchoate statutory, construction, materialmen's,
warehousemen's, producers' or operator's liens securing obligations
not overdue, or if overdue, which are being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside;
(c) liens of judgments or awards if and so long as the
judgment or award in question does not constitute an Event of Default
under Section 8.1(f) hereof;
(d) the liens created by the Collateral Documents;
(e) Permitted Exceptions and liens securing abandonment
costs;
(f) liens in the form of margin deposits incident to
arrangements entered into to hedge against the risk of changes in the
prices of hydrocarbons produced by the Company or its Pledged
Subsidiaries;
(g) liens arising under operating agreements in respect
of obligations not yet due;
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(h) zoning and use restrictions, easements,
rights-of-way, reservations or other similar encumbrances on real
property incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract
from the value of property subject thereto or interfere with the
ordinary conduct of the business of the Company or any of its
Subsidiaries;
(i) liens pursuant to partnership agreements, oil, gas
and/or mineral interests, farm-out agreements, division orders,
contracts for the sale, purchase, exchange, or processing of oil, gas
and/or other hydrocarbons, unitization and pooling declarations and
agreements, operating agreements, development agreements, area of
mutual interest agreements, and other agreements which are customary
in the oil, gas and other mineral exploration, development and
production business and in the business of processing of gas and gas
condensate production for the extraction of products therefrom;
(j) cash deposits securing liabilities in respect of
letters of credit, bonds and guaranties permitted by Section 7.10(e)
and (g) hereof; and
(k) any lien, security interest or charge upon any assets
of the Company with respect to the construction and financing of
improvements to the Company's administrative offices.
7.9. Acquisitions, Investments, Loans and Advances. The
Company will not, nor will it permit any Subsidiary to, directly or indirectly,
make, retain or have outstanding any interest or investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or acquire all or any substantial part of the assets or business
of any other Person, or subordinate any claim or demand it may have to the
claim or demand of any other person, firm or corporation; provided, however,
that the foregoing provisions shall not apply to nor operate to prevent:
(a) investments by the Company in direct obligations of
Australia or the United States of America or of any agency or
instrumentality thereof whose obligations constitute full faith and
credit obligations of Australia or the United States of America,
respectively, provided that any such obligations shall mature within
one year from the date the same are acquired by the Company;
(b) investments by the Company in commercial paper rated
P-1 by Moody's Investors Services, Inc. and A-1 by Standard and Poor's
Corporation (or equivalent ratings by
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<PAGE> 34
Australian rating agencies) maturing within 270 days of the date of
issuance thereof;
(c) investments by the Company in notes, certificates of
deposit or time deposits issued by and bills of exchange accepted by
any Commercial Bank, or by any prime Australian commercial bank and
having a maturity of one year or less;
(d) acquisitions by the Company and Subsidiaries of Oil
and/or Gas Properties or companies substantially all of the assets of
which are Oil and/or Gas Properties or assets incidental thereto and
which following such acquisition shall be Pledged Subsidiaries (and
shall deliver to the Agent a Guaranty and such other documents and
opinions as the Agent may reasonably require) or shall be merged into
the Company or any of the Pledged Subsidiaries;
(e) advances to employees and suppliers made in the
ordinary course of business;
(f) loans and advances by the Company to Pledged
Subsidiaries;
(g) loans and advances by the Company to Subsidiaries
other than Pledged Subsidiaries or to Subsidiaries of Apache and by
any Subsidiary of the Company to its Subsidiaries, provided that the
amount of such loans or advances outstanding at any one time shall not
exceed (i) $500,000 to any such Subsidiary and (ii) $1,000,000 in the
aggregate to all such Subsidiaries; and
(h) subordinations by the Company of obligations owing it
from Pledged Subsidiaries to obligations of the Pledged Subsidiaries
to the Banks, including without limitation, subordinations of
obligations pursuant to that certain Subordination Deed dated June 13,
1991 among the Company, Hadson Australia Development Pty Limited,
Petro Energy Limited and Bank of Montreal, as the same may have been
or may hereafter be amended or modified.
7.10. Indebtedness. The Company will not, nor will it
permit any Subsidiary to, issue, incur, assume, create or have outstanding any
Indebtedness except:
(a) Indebtedness of the Company hereunder;
(b) the Guaranties;
(c) Indebtedness in respect of judgments or awards if and
so long as such judgments or awards: (i) do not
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<PAGE> 35
constitute Indebtedness for borrowed money or (ii) do not constitute
or create an Event of Default under Section 8.1(f) hereof;
(d) Indebtedness of the Company to Subsidiaries and of
Subsidiaries to the Company permitted by Section 7.9;
(e) the liability of the Company or Subsidiaries in
respect of letters of credit not exceeding AUS $1,000,000 at any one
time outstanding, which letters of credit are (i) for the procurement
of goods and services in the ordinary course of business directly
associated with the normal conduct of the Oil and Gas Business of the
Company or such Subsidiary or (ii) to guarantee, pursuant to any
governmental requirements, future unfunded obligations with respect to
plugging or abandonment of wells;
(f) Subordinated Indebtedness of the Company to Apache
and/or Hadson Energy Resources Corporation;
(g) liabilities (other than pursuant to letters of credit
and other than Indebtedness of the type referred to in clause (f) of
the definition of Indebtedness) in respect of bonds and guaranties
supporting statutory obligations in respect of the Oil and Gas
Business of the Company and its Subsidiaries; provided any such
liabilities assumed by the Company or any Pledged Subsidiary in
respect of any Subsidiary which is not a Pledged Subsidiary shall be
deemed an advance to such Subsidiary for purposes of Section 7.9(g);
(h) Hedging Agreements entered into by the Company and
letters of credit in support of such Hedging Agreements; and
(i) Indebtedness in an aggregate amount not to exceed
$1,200,000 incurred in connection with the construction and financing
of improvements of the Company's administrative offices.
(j) Indebtedness for taxes due and payable but not yet
overdue, or overdue but being contested in good faith by appropriate
proceedings.
7.11. Dividends and Certain Other Restricted Payments. The
Company will not declare or pay any dividends on any class of its capital stock
(other than dividends payable solely in its capital stock) or directly or
indirectly or through any Subsidiary purchase, redeem or otherwise acquire or
retire any of its capital stock if after giving effect thereto either: (i) a
Default or Event of Default has occurred and is continuing or (ii) the
Company's Tangible Net Worth is less than $37,000,000.
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7.12. Mergers, Consolidations, etc. The Company will not,
nor will it permit any Pledged Subsidiary to, sell, lease or otherwise dispose
of all or a substantial part of its properties or assets, and will not, nor
will it permit any Pledged Subsidiary to, consolidate or be a party to a merger
with any other corporation or in any event sell or discount, with or without
recourse, any of its notes or accounts receivable or sell, transfer or
otherwise dispose of any capital stock of a Pledged Subsidiary except that and
provided always that after giving effect to any of the transactions enumerated
below, no Default or Event of Default has occurred or is continuing, (i) any
Pledged Subsidiary may merge with or into any other Pledged Subsidiary or the
Company if such actions are taken as the Agent may require to assure that any
such merger does not adversely affect its liens on the Collateral, (ii) any
corporation may merge with or into any Pledged Subsidiary or the Company
provided that such Pledged Subsidiary or the Company is the surviving
corporation, and (iii) the Company and its Subsidiaries may sell, lease or
otherwise dispose of assets as permitted by Section 7.13 below.
7.13. Sale of Assets. The Company will not, nor will it
permit any Pledged Subsidiary to, lease, sell, transfer, convey, assign, issue
or otherwise dispose of any of its property, assets (including stocks or
partnership interests in or of any Subsidiary) or business to any other Person,
whether in one transaction or in a series of transactions, except:
(a) sales of oil and gas inventory and severed oil and
gas in the ordinary course of business;
(b) sales or other transfers of obsolete equipment and
other personal property not useful in the operation or maintenance of
the Borrowing Base Assets (other than oil and gas inventory and
severed oil and gas in the ordinary course of business) at fair market
value and in the ordinary course of business;
(c) sales or other transfers of Borrowing Base Assets,
whether in one or more transactions, which do not exceed in the
aggregate $1,000,000 in any period occurring between successive dates
of determination of the Borrowing Base pursuant to Section 4.1;
(d) sales or other transfers of assets (other than sales
of oil and gas inventory and severed oil and gas in the ordinary
course of business) by the Company to any Pledged Subsidiary or by any
Pledged Subsidiary to any other Pledged Subsidiary or the Company;
(e) sales, relinquishments or farm outs of exploration
rights by the Company or any Pledged Subsidiary of
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<PAGE> 37
exploration rights other than those forming part of the Borrowing Base
Assets;
(f) a transfer, conveyance or assignment to the Company
or a Subsidiary of Properties as a result of a merger permitted
pursuant to Section 7.12; and
(g) sales or other transfers of assets which are not
Borrowing Base Assets, whether in one or more transactions, which do
not exceed in the aggregate $3,000,000 in any period between
successive dates of determination of the Borrowing Base pursuant to
Section 4.1.
Anything herein contained to the contrary notwithstanding, the Company will
not, nor will it permit any Subsidiary to consummate any sale or transfer
otherwise permitted hereunder if receiving therefor consideration other than
cash or other consideration readily convertible to cash or Proved Producing
Properties or Oil and/or Gas Properties or which is less than the fair market
value of the relevant property or asset.
7.14. Issuance of Additional Capital Stock. The Company
will not permit any Pledged Subsidiary to issue any additional shares of its
capital stock of any class unless such stock is issued to the Company or
another Pledged Subsidiary and all such actions are taken as the Agent may
require in order to grant it a valid perfected lien on such stock.
7.15. Burdensome Contracts with Affiliates. The Company
will not, nor will it permit any Subsidiary to, enter into any contract,
agreement or business arrangement with an Affiliate on terms and conditions
which, taken as a whole, are less favorable to the Company or such Subsidiary
than would be usual and customary in similar contracts, agreements or business
arrangements between Persons not affiliated with each other.
7.16. The Significant Agreements. The Company will comply
with all of its material obligations under the Significant Agreements and will
not amend or modify the same in any material respect or waive compliance by any
other party with the provisions thereof. The Company will and will cause the
Pledged Subsidiaries to comply with the terms of all licenses, concessions and
governmental requirements incident to their interests in the Borrowing Base
Assets.
7.17. Financial Covenants. The Company shall comply with
the following:
(a) the Company will maintain as of the last day of each
fiscal quarter a Current Ratio of at least 1.0:1.0;
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(b) the Company will at all times maintain a Tangible Net
Worth of not less than the sum of (i) $30,000,000 plus (ii) the
product of 0.50 times the sum of Consolidated Net Income for each
calendar quarter subsequent to the calendar quarter ending December
31, 1993 during which Consolidated Net Income is greater than $0;
(c) as of the last day of each fiscal quarter, the
Company shall have a ratio, for the Calculation Period then ended, of
Consolidated Cash Flow to Debt Service of at least 1.1:1.0; and
(d) as of the last day of each fiscal quarter, the
Company shall have a ratio, for the Calculation Period then ended, of
Consolidated Cash Flow to Interest Expense of at least 3.0:1.0.
7.18. Capital Expenditures. In accordance with each
engineering report, the Company shall use reasonable efforts to make such
capital expenditures as may be advisable to develop Oil and Gas Properties so
that they achieve production in Paying Quantities.
7.19. Limitations Concerning Distributions and Transfers by
Pledged Subsidiaries. Except as provided in this Acceptance Agreement, the
Company shall not, and shall not permit any of its Pledged Subsidiaries to,
suffer to exist any consensual encumbrance or restriction on the ability of any
Pledged Subsidiary (i) to pay, directly or indirectly, dividends or make other
distribution with respect to its capital stock or pay any Indebtedness owed to
the Company or any other Pledged Subsidiary; (ii) to make loans or advances to
the Company or any Pledged Subsidiary; or (iii) to transfer any of its property
or assets to the Company or any Pledged Subsidiary.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
8.1. Any one or more of the following shall constitute an
Event of Default hereunder:
(a) failure to pay within three days following the date
when payment is due with respect to any amount due any Bank with
respect to any Acceptance, whether at the stated maturity thereof or
at any other time provided for in this Agreement, or failure to pay
within three days after notice from the Agent or any Bank regarding
payment of any fee, charge or other amount payable by the Company or
any Guarantor hereunder or under any of the Related Documents or Loan
Documents;
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(b) default in the observance or performance of any
covenant set forth in Sections 7.12, 7.13, 7.14, or 7.17 hereof;
(c) default in the observance or performance of any other
provision hereof or any of the other Loan Documents or of any of the
Related Documents which is not remedied within 30 days after written
notice thereof to the Company by any Bank;
(d) (i) default shall occur in the payment when due
(whether by lapse of time, acceleration or otherwise), after giving
effect to any period of grace provided therefor, of (A) any
indebtedness issued, assumed or guaranteed by the Company or any
Subsidiary which aggregates $1,000,000 (or its equivalent in any other
currency) or more or (B) any indebtedness issued, assumed or
guaranteed by Apache or any Subsidiary or Subsidiaries of Apache which
aggregates $25,000,000 (or its equivalent in any other currency) or
more or (ii) any other event or default shall occur with respect to
any such indebtedness beyond any period of grace provided therefor if
the effect thereof is to permit the maturity of such Indebtedness to
be accelerated;
(e) any representation or warranty made herein or in any
of the other Loan Documents or in any Related Document or in any
statement or certificate furnished pursuant hereto or thereto, or in
connection with any acceptance or discount made hereunder or by any
person in connection with the transactions contemplated hereby proves
untrue in any material respect as of the date of the issuance or
making thereof, and shall not be made good within 30 days after notice
thereof to the Company by any Bank or by the holder of any Note;
(f) any Judgment or Judgments, writ or writs or warrant
or warrants of attachment or any levies or executions, or any similar
process or processes in an aggregate amount in excess of $1,000,000
shall be entered or filed against the Company or any Subsidiary or
against any of the property or assets of any of them and remains
undischarged, unvacated, unbonded or unstayed for a period of 10 days
(30 days if the liability therefor is fully covered by insurance
(subject to an immaterial deductible) as to which the insurer has
acknowledged liability without reservation);
(g) any event occurs or condition exists which is
specified as an event of default under any of the Collateral
Documents;
(h) any Significant Agreement is voided or terminated or
any party thereto defaults in the performance of
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any of its material obligations thereunder and fails to cure such
default within any applicable period of grace;
(i) the Company ceases for any reason to be a wholly
owned subsidiary of Apache, either directly or through one or more
other wholly owned subsidiaries;
(j) any event or condition has occurred or exists and is
continuing which may have a material adverse effect on the business,
operations, property, finances or prospects of the Company, any
Pledged Subsidiary or Apache or on the ability of the Company or any
Pledged Subsidiary to perform its obligations under any Loan Document
or Related Document;
(k) the Company or Apache or any Pledged Subsidiary
becomes insolvent or bankrupt or bankruptcy, reorganization,
arrangement, insolvency, moratorium or liquidation proceedings or
other proceedings for relief under any bankruptcy law or laws for the
relief of debtors are instituted against the Company or Apache or any
Pledged Subsidiary and are not dismissed within 60 days after such
institution or a decree or order of a court having jurisdiction in the
premises for the appointment of a trustee or receiver or custodian for
the Company or Apache or any Pledged Subsidiary or for the major part
of any of the property of any of the aforementioned is entered and the
trustee or receiver or custodian appointed pursuant to such decree or
order is not discharged within 60 days after such appointment; or
(l) Apache or the Company or any Pledged Subsidiary shall
institute bankruptcy, reorganization, arrangement, insolvency,
moratorium or liquidation proceedings or other proceedings for relief
under any bankruptcy law or laws for the relief of debtors or shall
consent to the institution of such proceedings against it by others or
to the entry of any decree or order adjudging it bankrupt or insolvent
or approving as filed any petition seeking reorganization under any
bankruptcy or similar law or shall apply for or shall consent to the
appointment of a receiver or trustee or custodian for it or for the
major part of its property or shall make an assignment for the benefit
of creditors or shall suspend payment of or admit in writing its
inability to pay its debts as they mature or shall cease to carry on
its business or shall be wound up or dissolved or shall take any
corporate action in contemplation or in furtherance of any of the
foregoing purposes or under governmental authority its management is
displaced or its authority to conduct its business is curtailed.
8.2. When any Event of Default described in subsections
8.1(a) to 8.1(j), both inclusive, has occurred and is
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<PAGE> 41
continuing or any event described in the last sentence of Section 11.21 hereof
has occurred and is continuing, the Agent shall, upon request of the Required
Banks, by notice to the Company, take any or all of the following actions:
(a) terminate the obligation of the Banks to accept or
discount any further Drafts hereunder on the date (which may be the
date thereof) stated in such notice (such termination shall be
effective upon verbal notification; the Agent hereby agreeing to
provide written notification thereof to the Company as soon as
practical thereafter);
(b) declare all fees, charges and commissions payable
hereunder to be immediately due and payable whereupon all of such
shall be and become immediately due and payable without further
demand, presentment, protest or notice of any kind;
(c) demand that the Company immediately pay to the Agent
the full face amount of each Acceptance and the Company agrees to
immediately make such payment and acknowledges and agrees that the
Banks would not have an adequate remedy at law for failure by the
Company to honor any such demand and that the Banks shall have the
right to require the Company to specifically perform such undertaking
whether or not any Acceptance has by its terms matured; and
(d) enforce any and all rights and remedies available
under the Loan Documents or applicable law.
8.3. When any Event of Default described in subsections
8.1(k) or (l) has occurred and is continuing, then (a) all fees, charges and
commissions payable hereunder, shall immediately become due and payable without
presentment, demand, protest or notice of any kind, (b) the obligation of the
Banks to accept or discount further Drafts pursuant to any of the terms hereof
shall immediately and automatically terminate (c) the Company shall immediately
pay to the Agent the full amount of all Acceptances, whether or not such
Acceptances have by their terms matured, the Company acknowledging that the
Banks would not have an adequate remedy at law for failure by the Company to
honor any such demand, and the Banks shall have the right to require the
Company to specifically perform such undertaking whether or not such
Acceptances have by their terms matured, and (d) the Agent may exercise all
remedies available to it under the Loan Documents or applicable law.
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SECTION 9. DEFINITIONS.
9.1. The following terms when used herein shall have the
following meanings, such definitions to be equally applicable to the singular
and plural of the terms defined:
The term "Acceptable Engineer" means Ryder Scott Company
Petroleum Engineers or such other petroleum engineers of recognized standing
selected by the Company and satisfactory to the Required Banks.
The term "Acceptances" shall mean Drafts which have been
accepted by one or more of the Banks pursuant to the terms of this Agreement.
The term "Acceptance Date" shall mean July 11, 1994 and each
day thereafter on which outstanding Acceptances mature provided that (i) no
Acceptance Date shall be a date later than the Termination Date then in effect
and (ii) if any such day is not a Business Day, then the related Acceptance
Date shall be the first Business Day following such maturity date.
The term "Acceptance Request" has the meaning set forth in
Section 1.2 hereof.
The term "Affiliate" shall mean any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, another Person. A Person shall be deemed to control another
Person for the purposes of this definition if such first Person possesses,
directly or indirectly, the power to direct, or cause the direction of, the
management and policies of the second Person, whether through the ownership of
voting securities, common directors, trustees or officers, by contract or
otherwise.
The term "Agent" shall mean Bank of Montreal and its
successors as agent hereunder.
The term "Apache" means Apache Corporation, a Delaware
corporation.
The term "Apache Debt/Capitalization Ratio" shall have the
meaning assigned to the term "Debt/Capitalization Ratio" in the Second Amended
and Restated Credit Agreement, dated as of May 9, 1994 among Apache, the
Lenders named therein, The First National Bank of Chicago, as Administrative
Agent and Collateral Agent, and Chemical Bank, as Co-Agent, as in effect on the
date hereof without giving effect to any amendments or modifications to such
Second Amended and Restated Credit Agreement subsequent to the date hereof.
Such term and all ancillary provisions and definitions are herein incorporated
by reference as if set forth herein and shall survive any termination of such
Second Amended and Restated Credit Agreement.
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The term "Assignment Agreement" has the meaning specified in
Section 11.13 hereof.
The term "Available Amount" shall mean the lesser of (i) the
Facility Amount and (ii) the Borrowing Base or such lesser amount as the
Company shall request pursuant to Section 2.5.
The term "Bank" shall mean Bank of Montreal and each other
Person which becomes a Bank party hereto pursuant to Section 11.13 hereof.
The term "Borrowing Base" has the meaning specified in Section
4.1 hereof.
The term "Borrowing Base Assets" shall mean the assets from
time to time included in the computation of the Borrowing Base.
The term "Business Day" shall mean a day (other than a
Saturday or Sunday) on which the Banks are open for business in Toronto,
Ontario.
The term "Certificate of Extension" means a certificate duly
executed by the Company delivered to the Agent pursuant to Section 1.6 hereof
and substantially in the form of Exhibit C.
The term "Calculation Period" means, as of the end of any
fiscal quarter of the Company, the period of four fiscal quarters ending on
such date.
The term "Collateral" has the meaning specified in Section 3
hereof.
The term "Collateral Documents" shall mean all assignments,
pledge agreements, security agreements, applications and instruments and
documents at any time providing, creating or evidencing liens on the Collateral
or any part thereof.
The term "Commercial Bank" shall mean any person which has
publicly traded debt securities rated either A- or higher by Standard and
Poor's Corporation or A(3) or higher by Moody's Investors Service, Inc.
The term "Consolidated Cash Flow" means, for any Calculation
Period, the sum of Consolidated Net Income plus, the change in deferred revenue
plus, to the extent deducted in the computation of such Consolidated Net
Income, depreciation, depletion, deferred taxes, amortization of goodwill,
interest expenses (net of interest capitalized) plus other non-cash charges
acceptable to the Agent for such Calculation Period.
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The term "Consolidated Net Income" for any Calculation Period
shall mean the net earnings of the Company and its Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP, and excluding
undistributed earnings of entities which are not Subsidiaries and without
limiting the foregoing, after the deduction from gross income of all charges
and reserves for all taxes on or measured by income, but excluding any
extraordinary profits or losses (as determined in accordance with GAAP) on the
sale or other disposition of fixed or capital assets or on the acquisition,
retirement, sale or other disposition of stock or securities of the Company or
any Subsidiary, and also excluding any taxes on such profits and any tax
deductions or credits on account of any such losses.
The term "Current Ratio" means the ratio of (a) consolidated
current assets of the Company and its Subsidiaries to (b) consolidated current
liabilities of the Company and its Subsidiaries; provided that (i) current
portions of long-term debt and loans payable to Affiliates shall be excluded
from current liabilities and (ii) on any date of determination prior to the
Transition Date, current assets of the Company shall be increased by the face
amount of Drafts which might be accepted pursuant to Section 1.1 hereof, but
which have not been accepted and for which no Acceptance Request has been given
as of the date of such determination.
The term "Debt Service" means the sum of the scheduled
principal repayments of all Indebtedness of the Company and its Subsidiaries
during the period for which such amount is being determined plus the sum of all
principal payments actually paid by the Company and its Subsidiaries during
such period with respect to Subordinated Indebtedness (excluding the sum of all
scheduled principal payments actually paid by the Company and its Subsidiaries
with respect to Subordinated Indebtedness) plus Interest Expense and fees on
all Indebtedness for such period, computed in each case on a consolidated basis
in accordance with GAAP.
The term "Discount" shall mean as to each Bank and each
Acceptance discounted by such Bank or purchased by such Bank for its own
account hereunder the amount to be deducted from the face amount of such Draft
when the same is discounted (using a year of 360 days for the actual number of
days elapsed) at the effective discount rate of the Agent applicable to U.S.
dollar banker's acceptances accepted by the Agent in Canada for the same term
to maturity and for a similar face amount not later than 11:00 a.m. (Toronto
time) on the Business Day preceding the Acceptance Date in question. The
determination by the Agent of the Discount (including the discount rate) to be
applicable to each Draft accepted shall be final and conclusive absent manifest
error.
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The term "Drafts" shall mean Drafts of the Company drawn on
one or more of the Banks maturing as contemplated by the last sentence of
Section 1.2 hereof from their date and being payable in U.S. dollars.
The term "Event of Default" shall mean any of the events or
conditions described as such in Section 8.1 hereof and the term "Default" shall
mean any event or condition which if uncured and/or with the lapse of time, the
giving of notice, or both, would constitute an Event of Default.
The term "Extension Date" has the meaning specified in Section
1.6 hereof.
The term "Facility Amount" shall mean $50,000,000 through (and
including) the date one day prior to the Transition Date with the Facility
Amount to automatically reduce on the Transition Date to an amount equal to the
aggregate face amount of all Drafts outstanding on the Transition Date and to
further reduce by an amount equal to 1/12 of the aggregate face amount of all
Drafts outstanding on the Transition Date as of the date in the third month
after the Transition Date, and in every third month thereafter, which
numerically corresponds to the Transition Date (or, if such month has no
numerically corresponding date, on the last Business Day of such month), all as
such amounts may be further reduced pursuant to Section 2.5 hereof.
The term "Facility Amount Percentage" shall mean the
percentage for each Bank specified opposite its signature hereto or on an
assignment agreement executed by it, as such a percentage may be adjusted
pursuant to the provisions of Section 11.13 hereof.
The term "F.R.S. Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
The term "GAAP" shall mean generally accepted United States
accounting principles as in effect on the date financial statements are
prepared and applied consistently with those used in the preparation of the
financial reports referred to in Sections 5.4 and 5.5 hereof.
The term "Guaranties" shall mean guaranties acceptable in form
and substance to the Banks pursuant to which the Guarantors guarantee
unconditionally all indebtedness, obligations and liabilities of the Company
and the Pledged Subsidiaries arising under the Loan Documents and/or the
Related Documents.
The term "Guarantors" shall mean the Pledged Subsidiaries.
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The term "Hedging Agreement" means (i) any commodity hedge,
commodity swap, exchange, forward, future, collar or cap agreements, fixed
price agreements and all other agreements or arrangements designed to protect
the Company or any Pledged Subsidiary against fluctuations in commodity prices,
(ii) any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement or similar agreement designed to protect the Company or
any Pledged Subsidiary against fluctuations in interest rates or (iii) all
commitment and/or facility letters, applications, contracts, agreements and
confirmations of every kind or character evidencing or setting forth terms and
conditions to be applicable to or constituting agreements to provide, letters
of credit, bonds, guaranties or currencies (whether on a spot or forward basis)
or other arrangements entered into for the purpose of hedging or otherwise
protecting the Company or any Pledged Subsidiary against the consequences of
changes in currency conversion rates.
The term "Indebtedness" of any Person shall mean, as of any
date (a) all obligations of such Person for borrowed money, (b) all obligations
which are secured by any lien or encumbrance existing on property owned by such
Person whether or not the obligation secured thereby shall have been assumed by
such Person, other than those obligations which are incurred in the ordinary
course of business and are not required to be shown as a liability on a balance
sheet in accordance with GAAP, (c) all obligations of such Person under any
lease which, in accordance with GAAP, is or should be capitalized on the books
of the lessee, (d) the deferred purchase price for goods, property or services
acquired by such Person, and all obligations of such Person to purchase such
goods, property or services where payment therefore is required regardless of
whether or not delivery of such goods or property or the performance of such
services is ever made or tendered, other than such deferred purchase price and
obligations which are incurred in the ordinary course of business and are not
required to be shown as a liability on a balance sheet in accordance with GAAP,
(e) all obligations of such Person to advance funds to, or to purchase property
or services from, any other person in order to maintain the financial condition
of such person, (f) all obligations of others similar in character to those
described in clauses (a) through (c) of this definition for which such Person
is liable contingently or otherwise, as obligor, guarantor or in any other
capacity, or in respect of which obligations such Person assures a creditor
against loss or agrees to take any action to prevent any such loss (other than
endorsements of negotiable instruments for collection in the ordinary course of
business) and (g)liabilities of such Person in respect of banker's acceptances
and letters of credit (to the extent the obligation supported by such a letter
of credit is not already a liability of such Person).
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The term "Initial Borrowing Base Assets" has the meaning
specified in Section 4.2 hereof.
The term "Initial Report" has the meaning specified in Section
4.1 hereof.
The term "Interest Expense" means with respect to any period
for which a determination thereof is to be made, the aggregate amount of all
interest accrued (whether or not paid) on all Indebtedness.
The term "Interest Rate" shall mean the rate per annum
determined by adding 2% to the floating annual rate of interest established
from time to time by the Agent as the base rate it will use to determine rates
of interest on Canadian dollar loans to customers in Canada and designated as
its prime rate, with any change in the Interest Rate resulting from a change in
the prime rate to be and become effective on the date of the change in the
prime rate.
The term "Loan Documents" shall mean, collectively, this
Agreement, the Guaranties, the Collateral Documents, the Consent and
Acknowledgement of each Guarantor and any Certificate of Extension.
The term "Maximum Borrowing Base" means $30,000,000 or such
greater amount as the Banks from time to time may agree; provided, however,
that the Banks shall have no obligation to so agree.
The term "Oil and Gas Business" shall mean the business of
acquiring Oil and/or Gas Properties, exploring for and/or producing and/or
developing and/or marketing oil and/or natural gas and/or dealing in Oil and/or
Gas Properties, including as part of the Oil and Gas Business the sale of
natural gas at wholesale or retail and the ownership and operation of pipelines
and gas processing plants.
The term "Oil and/or Gas Property" shall mean and include any
interest in real estate and/or in oil and/or gas which may be found thereon or
produced therefrom, or in the revenues derived from the sale or other
disposition thereof including without limitation mineral interests, royalty
interests, net profits interests, working interests of all types and licenses,
permits and rights to produce and retain hydrocarbons, other than interests in
real estate which are acquired and held for purposes other than exploring for
or producing oil and/or gas or selling such properties to others who intend to
engage in the exploration for or production of oil and/or gas.
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The term "Original Currency" has the meaning specified in
Section 11.19 hereof.
The term "Paying Quantities" shall mean production of
hydrocarbons in an amount sufficient to pay operating and marketing expenses.
The term "Permitted Exceptions" shall mean and include:
(a) liens and charges incidental to construction except
such as may result from any delinquent obligation for the payment of
money on account of such construction, or, if delinquent, the payment
or validity of which is being contested in good faith and for which
adequate reserves in accordance with GAAP have been sat aside;
(b) the lien of current taxes and assessments not in
default or, if delinquent, the validity of which is being contested in
good faith and for which adequate reserves in accordance with GAAP
have been set aside;
(c) liens reserved in leases, easements, grants,
franchises or permits for rent and fees or for compliance with the
terms of such leases, easements, grants, franchises or permits; and
(d) liens securing obligations neither (x) assumed by the
Company or any Subsidiary (y) nor on account of which the Company or a
Subsidiary customarily pays interest, upon real estate in which the
Company or a Subsidiary has a right- of-way, easement, franchise or
other servitude or of which the Company or a Subsidiary is the lessee
of the whole thereof or any interest therein for the purpose of
locating pipe lines, substations, measuring stations, tanks or pumping
or delivery equipment.
The term "Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization and a government or agency or
political subdivision thereof.
The term "Pledged Subsidiaries" shall mean (i) Hadson
Australia Development Pty Limited A.C.N. 009 140 854, a company incorporated in
Western Australia, (ii) Petro Energy Limited A.C.N. 000 293 729, a company
incorporated in New South Wales, (iii) any Subsidiary which owns any interest
in any Oil and/or Gas Property included in the Borrowing Base and (iv) any
Subsidiary to which the Company or any Subsidiary or Subsidiaries of the
Company shall, at any time on or after the date hereof, have loans or advances
which were made subsequent to the date hereof outstanding in an aggregate
principal amount greater than $500,000, and which
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<PAGE> 49
in each case has executed and delivered a Guaranty and Collateral Documents to
the Agent in form and substance satisfactory to the Agent which remain in full
force and effect.
The term "Process Agent" has the meaning specified in Section
11.22 hereof.
The term "Proved Producing Properties" shall mean interests in
Oil and/or Gas Properties of the Company and Pledged Subsidiaries subject only
to liens permitted by Section 7.8 hereof, in oil and/or gas to be produced from
existing wells which have been continuously producing oil and/or gas in Paying
Quantities at stabilized production rates for a period sufficient in the
reasonable judgment of the Required Banks so as to enable future production
amounts and trends to be predicted with reasonable assurance.
The term "Rating Agency" shall mean each of Duff & Phelps
Credit Rating Company, Moody's Investors Service, Inc. and Standard & Poor's
Corporation.
The term "Related Documents" shall mean all Hedging Agreements
between any of the Banks and the Company or the Pledged Subsidiaries against
the consequences of changes in interest rates or currency conversion rates.
The term "Required Banks" shall mean Banks holding 50% or more
of the outstanding principal amount of the Acceptances, or, if no Acceptances
are outstanding, Banks whose Facility Amount Percentages aggregate 50% or more.
The term "Second Currency" has the meaning specified in
Section 11.19 hereof.
The term "Significant Agreements" shall mean the agreements
listed on Exhibit D hereto, together will all amendments or modifications with
respect thereto.
The term "Stamping Fee" shall mean a percentage per annum
equal to the percentage set forth below:
<TABLE>
<CAPTION>
Rating of Apache's
Apache/Debt Long-Term Debt by 2 or Stamping
Capitalization Ratio more Rating Agencies Fee
<S> <C> <C>
Greater than or equal to Lower than BBB-/Baa3 2.375%
.60 to 1.0
Greater than or equal to BBB-/Baa3 2.125%
.60 to 1.0
</TABLE>
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<PAGE> 50
<TABLE>
<CAPTION>
Rating of Apache's
Apache/Debt Long-Term Debt by 2 or Stamping
Capitalization Ratio more Rating Agencies Fee
<S> <C> <C>
Greater than or equal to BBB/Baa2 or higher 1.875%
.60 to 1.0
Greater than or equal to Lower than BBB-/Baa3 2.125%
.55 to 1 but less than .60 to 1
Greater than or equal to BBB-/Baa3 or higher 1.875%
.55 to 1 but less than .60 to 1
Greater than or equal to Lower than BBB-/Baa3 1.75%
.50 to 1 but less than .55 to 1
Greater than or equal to .50 to BBB-/Baa3 or higher 1.625%
1 but less than .55 to 1
Greater than or equal to .45 to BBB-/Baa3 or lower 1.375%
1 but less than .50 to 1
Greater than or equal to .45 to BBB/Baa2 or higher 1.125%
1 but less than .50 to 1
Greater than or equal to .40 to BBB-/Baa3 or lower 1.125%
1 but less than .45 to 1
Greater than or equal to .40 to BBB/Baa2 or higher 1.00%
1 but less than .45 to 1
Less than .40 to 1 Lower than BBB-/Baa3 1.125%
Less than .40 to 1 BBB-/Baa3 1.00%
Less than .40 to 1 BBB/Baa2 or higher .875%
</TABLE>
Such percentage shall be computed on the face amount of each Acceptance for the
period from the date of Acceptance to its maturity date.
The term "Subordinated Indebtedness" means unsecured
Indebtedness of the Company which is subordinated, upon terms satisfactory to
the Agent, in right of payment to the payment in full of the Company under this
Agreement or any Related Document.
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The term "Subsidiary" shall mean any corporation all of the
outstanding voting shares of which, other than directors qualifying shares to
the extent required by law, is at the time, owned by the parent in question or
by any other corporations or entities which are themselves Subsidiaries within
the meaning of this definition or jointly by the parent in question and any one
or more such Subsidiaries.
The term "Tangible Net Worth" means the consolidated net worth
of the Company and its Subsidiaries after subtracting therefrom the aggregate
amount of any intangible assets of the Company and its Subsidiaries, including
goodwill, franchises, licenses, patents, trademarks, trade names, copyrights,
service marks and brand names.
The term "Taxes" has the meaning set forth in Section 2.6
hereof.
The term "Termination Date" shall mean May 26, 1999, as such
date may be extended pursuant to Section 1.6, or such earlier date on which the
obligation of the Banks to accept Drafts hereunder is terminated in whole
pursuant to Sections 2.5, 8.2, 8.3 or 11.21 hereof.
The term "Transition Date" shall mean May 26, 1996, as such
date may be extended pursuant to Section 1.6 hereof.
The term "U.S. Dollars" shall mean currency which at the time
is legal tender for public and private debts in the United States of America.
The term "U.S. Dollar Equivalent" shall mean the amount of
United States Dollars which would be realized by converting a foreign currency
into United States Dollars in the spot market at the exchange rate quoted by
Bank of Montreal at 11:00 a.m. (New York time) on the date of determination to
prime banks in the London interbank foreign exchange market for the purchase of
United States Dollars with such foreign currency.
The term "$" shall mean U.S. Dollars.
9.2. U.S. Dollars. Except to the extent explicitly
otherwise provided herein, all references to dollars and dollar amounts shall
be deemed references to U.S. Dollars.
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<PAGE> 52
SECTION 10. THE AGENT.
10.1. Appointment and Authorization. Each Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers hereunder and under the Loan Documents as are
designated to the Agent by the terms hereof and thereof together with such
powers as are reasonably incidental thereto. The Agent may resign at any time
by sending twenty (20) days prior written notice to the Company and the Banks
and may be removed by the Required Banks upon twenty (20) days prior written
notice to the Company and the Banks. In the event of any such resignation or
removal the Required Banks may appoint a new agent, which shall succeed to all
the rights, powers and duties of the Agent hereunder and under the other Loan
Documents. Any resigning or removed Agent shall be entitled to the benefit of
all the protective provisions hereof with respect to its acts as an agent
hereunder, but no successor Agent shall in any event be liable or responsible
for any actions of its predecessor. If the Agent resigns or is removed and no
successor is appointed, the rights and obligations of such Agent shall be
automatically assumed by the Required Banks and (i) the Company shall be
directed to make all payments due each Bank hereunder directly to such Bank and
(ii) the Agent's rights in the Loan Documents shall be assigned without
representation, recourse or warranty to the Banks as their interests may
appear.
10.2. Rights as a Bank. The Agent has and reserves all of
the rights, powers and duties hereunder and under the other Loan Documents, the
Guaranties and the Acceptances as any Bank may have and may exercise the same
as though it were not the Agent and the terms "Bank" or "Banks" as used herein
and in all of such documents shall, unless the context otherwise expressly
indicates, include the Agent in its individual capacity as a Bank. The Agent
reserves the right to engage in other business transactions with the Company
and its Affiliates.
10.3. Standard of Care. The Banks acknowledge that they
have received and approved copies of the Loan Documents, and such other
information and documents concerning the transactions contemplated and financed
hereby as they have requested to receive and/or review and that the Agent or an
Affiliate thereof may be financially interested in the Company. The Agent
makes no representations or warranties of any kind or character to the Banks
with respect to the validity, enforceability, genuineness, perfection, value,
worth or collectibility hereof or of the other Loan Documents or of the liens
provided for thereby or of any other documents called for hereby or thereby or
of the Collateral. The Agent need not verify the worth or existence of the
Collateral and may rely exclusively on reports provided by the Company in
computing the Borrowing Base. Neither the Agent nor any director, officer,
employee, agent or representative thereof (including any
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<PAGE> 53
security trustee therefor) shall, subject to Section 1.7, in the case of the
Company, in any event be liable for any clerical errors or errors in judgment,
inadvertence or oversight, or for action taken or omitted to be taken by it or
them hereunder or under the Loan Documents or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct.
The Agent shall incur no liability under or in respect of this Agreement or the
other Loan Documents by acting upon any notice, certificate, warranty,
instruction or statement (oral or written) of anyone (including anyone in good
faith believed by it to be authorized to act on behalf of the Company), unless
it has actual knowledge of the untruthfulness of same. The Agent agrees to use
the same care in protecting the interests of the Banks under the Loan Documents
as it uses for similar facilities held by it solely for its own account. The
Agent shall be entitled to advice of counsel concerning all matters pertaining
to the agencies hereby created and its duties hereunder, and shall incur no
liability to anyone and be fully protected in acting upon the advice of such
counsel. The Agent shall be entitled to assume that no Default or Event of
Default exists, absent actual knowledge thereof, unless notified to the
contrary by a Bank. The Agent shall in all events be fully protected in acting
or failing to act in accord with the instructions of the Required Banks.
Whenever the terms hereof or of another Loan Document permit the Agent to take
a particular action, the Agent agrees that it will take such action or refrain
from same, if requested to do so by the Required Banks. Upon the occurrence of
an Event of Default hereunder, the Agent shall take such action with respect to
the enforcement of its liens on the Collateral and the preservation and
protection thereof and its rights under the Guaranties as it shall be directed
to take by the Required Banks (and shall consult with the Banks as to actions
to be taken) but unless and until the Required Banks have given such direction
the Agent shall take or refrain from taking such actions as it deems
appropriate and in the best of interest of all Banks. The Agent shall in all
cases be fully justified in failing or refusing to act hereunder unless it
shall be indemnified to its reasonable satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. Each Bank acknowledges that it has
independently and without reliance on the Agent or any other Bank and based
upon such information, investigations and inquiries as it deems appropriate
made its own credit analysis and decision to extend credit to the Company. It
shall be the responsibility of each Bank to keep itself informed as to the
creditworthiness of the Company and the Agent shall have no liability to any
Bank with respect thereto. The Agent shall, upon the written request of a
Bank, request from the Company copies of any information to which the Agent is
entitled to receive hereunder, and shall promptly deliver copies thereof upon
receipt of same to such requesting Bank.
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<PAGE> 54
10.4. Costs and Expenses. Each Bank agrees to reimburse
the Agent for all out-of-pocket costs and expenses suffered or incurred by the
Agent or any security trustee in performing its duties hereunder and under the
other Loan Documents or in the exercise of any right or power imposed or
conferred upon the Agent hereby or thereby, to the extent that the Agent is not
promptly reimbursed for same by the Company or out of the Collateral, all such
costs and expenses to be borne by the Banks ratably in accordance with the
amounts of their respective Facility Amount Percentages. If any Bank fails to
reimburse the Agent for its share of any such costs and expenses, such costs
and expenses shall be paid pro rata by the remaining Banks, but without in any
manner releasing the defaulting Bank from its liability hereunder.
10.5. Indemnity. The Banks shall ratably indemnify and
hold the Agent, and its directors, officers, employees, agents or
representatives (including as such any security trustee therefor) harmless from
and against any liabilities, losses, costs or expenses suffered or incurred by
them under the other Loan Documents or in connection with the transactions
contemplated hereby or thereby, regardless of when asserted or arising, except
to the extent they are promptly reimbursed for the same by the Company or out
of the Collateral and except to the extent that any event giving rise to a
claim was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. If any Bank defaults in its obligations hereunder,
its share of the obligations shall be paid pro rata by the remaining Banks, but
without in any manner releasing the defaulting Bank from its liability
hereunder.
SECTION 11. MISCELLANEOUS.
11.1. Waiver of Rights. No delay or failure on the part of
the Company, the Agent or any Bank in the exercise of any power or right shall
operate as a waiver thereof, nor as an acquiescence in any default, nor shall
any single or partial exercise thereof, or the exercise of any other power or
right, preclude any other right or the further exercise of any other rights,
and the rights and remedies hereunder of the Company, the Banks and the Agent
are cumulative to, and not exclusive of, any rights or remedies which any of
them would otherwise have.
11.2. Non-Business Day. If any amount payable hereunder
shall fall due on a day which is not a Business Day, the payment date therefor
shall be extended to the next date which is a Business Day.
11.3. Documentary Taxes. The Company agrees to pay any
documentary, stamp or similar taxes payable in respect to this Agreement or any
Draft or Acceptance, including interest and penalties, in the event any such
taxes are assessed irrespective of
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<PAGE> 55
when such assessment is made and whether or not any credit is then in use or
available hereunder.
11.4. Survival of Representations. All representations and
warranties made in the Loan Documents or pursuant thereto or in certificates
given pursuant hereto or thereto shall survive the execution and delivery of
this Agreement, and shall continue in full force and effect with respect to the
date as of which they were made as long as any credit is in use or available
hereunder.
11.5. Survival of Indemnities. All indemnities and all
other provisions relative to reimbursement to the Banks of amounts sufficient
to protect the yield of the Banks with respect to the Acceptances shall survive
the termination of this Agreement and the payment of the Acceptances.
11.6. Set-off Sharing. Each Bank agrees with each other
Bank party hereto that in the event such Bank shall receive and retain any
payment, whether by set-off or application of deposit balances or otherwise
("Set-off"), on or in respect of any Acceptance outstanding under this
Agreement in excess of its ratable share of payments on all Acceptances then
outstanding, then such Bank shall purchase for cash at face value, but without
recourse, ratably from each of the other Banks such amount of the risk incident
to the Acceptances held by each such other Bank (or interest therein) as shall
be necessary to cause such Bank to share such excess payment ratably with all
the other Banks; provided, however, that if any such purchase is made by any
Bank, and if such excess payment or part thereof is thereafter recovered from
the other Banks, the related purchases shall be rescinded ratably and the
purchase price restored as to the purchasing Bank such portion of such excess
payment so recovered, but without interest.
11.7. Notices. All communications provided for herein
shall be in writing or by telex, telegraph or facsimile transmission, except as
otherwise specifically provided for hereinabove, addressed, if to the Company
at 2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400, Attention:
Clyde E. McKenzie, or if to the Agent or Banks at their respective addresses
set forth opposite their respective signatures hereto, or at such other address
as shall be designated by any party hereto in a written notice to each other
party pursuant to this Section 11.7. Any notice in writing shall be deemed to
have been given or made when served personally or when received if sent by
mail, and any notice given by telex or telegraphic means shall be deemed given
when transmitted (answerback confirmed); provided that any notice to the Agent
or any Bank under Section 1 hereof shall only be effective upon receipt.
11.8. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties on
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<PAGE> 56
different counterparts, each of which when executed shall be deemed an
original, but all such counterparts taken together shall constitute one and the
same instrument.
11.9. Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns, and shall be binding
upon and inure to the benefit of the Banks and their respective successors and
permitted assigns. The Company may not assign its rights or obligations
hereunder without the prior written consent of the Banks.
11.10. Participants. Each Bank shall have the right at its
own cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Acceptances created by such Bank at any
time and from time to time to one or more other financial institutions,
provided that no such participant shall have any rights under this Agreement
(the participant's rights against the Bank granting its participation to be
those set forth in the participation agreement between the participant and such
Bank). Each such Bank shall be entitled to the benefits of Section 1 hereof to
the extent such Bank would have been so entitled had no such participation been
sold.
11.11. Costs and Expenses. The Company agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent in
connection with the negotiation, preparation, execution, delivery, syndication,
recording and/or filing and/or release of the Loan Documents and the other
instruments and documents to be delivered hereunder or thereunder or in
connection with the transactions contemplated hereby or thereby or in
connection with any consents hereunder or thereunder or waivers or amendments
hereto or thereto, including the reasonable fees and expenses of counsel for
the Agent with respect to all of the foregoing, and all recording, filing or
other fees, costs and taxes incident to perfecting a lien upon the collateral
security for the Company's obligations under the Loan Documents and Related
Documents and other obligations of the Company, and all reasonable costs and
expenses (including reasonable attorneys' fees), incurred by the Agent, any
security trustee for the Banks or the Banks in connection with a default or the
enforcement of any of the Loan Documents and the other instruments and
documents to be delivered hereunder or thereunder. Subject to Section 1.7
hereof, the Company agrees to indemnify and save the Banks, the Agent and any
security trustee for the Banks harmless from any and all liabilities, losses,
costs and expenses incurred by the Banks or the Agent in connection with any
action, suit or proceeding brought against the Agent, security trustee or any
Bank by any person which arises out of the transactions contemplated or
financed hereby or by the other Loan Documents or Related Documents or out of
any action or inaction by the Agent, any security Trustee or any Bank hereunder
or thereunder, except for such thereof as is caused by
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<PAGE> 57
the gross negligence or willful misconduct of the party indemnified or a breach
by the indemnified Bank of its agreements herein contained. The provisions of
this Section 11.11 and the protective provisions of Section 1 hereof shall
survive payment of the Acceptances.
11.12. Construction. The parties hereto acknowledge and
agree that this Agreement shall not be construed more favorably in favor of one
than the other based upon which party drafted the same, it being acknowledged
that all parties hereto contributed substantially to the negotiation of this
Agreement.
11.13. Assignment Agreements. Bank of Montreal may, from
time to time, with the consent of the Company (which will not be unreasonably
withheld, it being acknowledged that it would be reasonable to withhold a
consent if the Company's costs would be increased in any material respect by
factors peculiar to the proposed assignee bank or to a class of banks of which
it is a part), assign to other financial institutions a portion of its
obligation to create and discount Acceptances hereunder pursuant to written
agreements executed by the assignor, the assignee and the Company, which
agreements shall specify in each instance the portion of the Facility Amount
Percentage which is to be assigned to each such assignee and assumed by it (the
"Assignment Agreements"), provided that the Company may in its sole discretion
withhold its consent to any assignment by Bank of Montreal if as a result
thereof Bank of Montreal would have assigned fifty percent or more of its
original Facility Amount Percentage or there would be more than four Banks
hereunder. Upon the execution of each Assignment Agreement by the assignor,
the assignee and the Company (i) such assignee shall thereupon become a "Bank"
for all purposes of this Agreement with a Facility Amount Percentage in the
amount set forth in such Assignment Agreement and with all the rights, powers
and obligations afforded a Bank hereunder, (ii) Bank of Montreal shall have no
further liability for accepting or funding the portion of its Facility Amount
Percentage assumed by such other Bank and (iii) the address for notices to such
Bank shall be as specified in the Assignment Agreement executed by it.
11.14. Amendments and Waivers. No provision of the Loan
Documents may be amended or waived except in writing signed by the Company and
the Required Banks and, if the rights or duties of the Agent are affected
thereby, by the Agent; provided that no such amendment or waiver shall, unless
signed by all Banks, (i) increase or extend the Facility Amount Percentage of
any Bank or subject any Bank to any additional obligation, (ii) reduce the
principal of or rate of interest or discount payable to any Bank with respect
to any Acceptance created or discounted by it or any fees due such Bank
hereunder, or (iii) change the stated time or manner of any payment due from
such Bank or the provisions hereof allocating payments or recoveries, or (iv)
change the percentage of the
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Facility Amount or of the aggregate unpaid principal amount of the Acceptances,
or the number of Banks required for the Banks or any of them to take any action
under this Section 11.14 or any other provisions of this Agreement or release
the lien of the Collateral Documents on any substantial (in value) part of the
Collateral except concurrently with the sale thereof, if permitted hereby.
11.15. Governing Law. This Agreement and the rights and
duties of the parties hereto, shall be construed and determined in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
11.16. Entire Agreement. This Agreement constitutes the
entire understanding of the parties with respect to the subject matter hereof
and any prior agreements, whether written or oral, with respect thereto are
superseded hereby.
11.17. One Bank. If and so long as Bank of Montreal is the
only Bank hereunder, Bank of Montreal shall have all rights, powers and
privileges afforded the Agent, the Banks or the Required Banks hereunder.
11.18. Headings. Section headings used in this Agreement
are for reference only and shall not affect the construction of this Agreement.
11.19. Judgment Currency.
(a) If for the purpose of obtaining judgment in any court
it is necessary to convert an amount due hereunder in the currency in
which it is due (the "Original Currency") into another currency (the
"Second Currency"), the rate of exchange applied shall be that at
which, in accordance with normal banking procedures, a Bank could
purchase, in the Toronto foreign exchange market, the Original
Currency with the Second Currency on the date two Business Days
preceding that on which judgment is given. The Company agrees that
its obligation in respect of any Original Currency due from it to each
Bank hereunder shall, notwithstanding any judgment or payment in such
other currency, be discharged only to the extent that on the Business
Day following the date such Bank receives payment of any sum so
adjudged to be due hereunder in the Second Currency the Bank can, in
accordance with normal banking procedures, purchase, in the Toronto
foreign exchange market the amount due in the Original Currency with
the amount of the Second Currency so paid; and if the amount of the
Original Currency so purchased or which could have been so purchased
is less than the amount originally due in the Original Currency, the
Company agrees as a separate obligation and notwithstanding any such
payment or judgment to indemnify such Bank against such loss.
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(b) The term "rate of exchange" in this Section 11.19
means the spot rate at which the Bank in accordance with normal
practices is able on the relevant date to purchase the Original
Currency with the Second Currency and includes any premium and costs
of exchange payable in connection with such purchase.
11.20. Time is of the Essence. Time is of the essence of
this Agreement.
11.21. Limit on Rate of Interest or Discount.
Notwithstanding any provision contained in this Agreement, the Company shall
not be obliged to make any payment of interest, discount or other amounts
payable to a Bank hereunder in excess of the amount or rate which would be
prohibited by applicable law or would result in the receipt by such Bank of
interest at a criminal rate (as such terms are construed under the Criminal
Code (Canada)). In the event that any such payments are limited or prohibited
as provided in Section 11.21, the Banks shall have no further obligation to
make any Credit available hereunder and the entire amount of credit then
outstanding shall become immediately due and payable.
11.22. Courts. Any legal action or proceeding with respect
to this Agreement or any Collateral against the Company may be brought in the
courts of the Province of Ontario, which courts the parties hereto acknowledge
irrevocably to be a convenient forum for the resolution of any such legal
action or proceeding. The Company hereby accepts, for itself and in respect of
its assets and revenues, generally and unconditionally the non-exclusive
jurisdiction of the aforesaid courts.
The Company hereby irrevocably designates and appoints C T
Corporation System (Canada), Ltd. (the "Process Agent") at its registered
office from time to time and of which the Agent shall have been notified, which
office is currently located at 20 Queen Street West, Toronto, Ontario M5H 2V3
as the authorized agent of the Company upon which process may be served in any
suit or proceeding arising out of or in connection with this Agreement or any
Loan Document which may be instituted in the Province of Ontario and agrees
that service of process on the Process Agent shall, to the extent permitted by
law, be deemed in every respect to be effective service of process on the
Company. However, nothing in this Section 11.22 shall affect the right of the
Agent to serve legal process in any other manner permitted by law or affect the
right of the Agent to bring any action or proceed against the Company or its
properties in the courts of any other jurisdiction.
11.23. No Merger or Novation. All Guaranties (except the
Guaranty of Hadson Energy Corporation), Collateral Documents
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and other Loan Documents provided to the Agent and/or the Banks prior to the
date hereof in connection with the Original Acceptance Agreement or the
Indebtedness of the Company thereunder remain in full force and effect, there
being no novation or merger of the Original Acceptance Agreement, this Amended
and Restated Acceptance Agreement, the Guaranties, Collateral Documents or Loan
Documents.
Upon your acceptance hereof in the manner hereinafter set
forth, this Agreement shall be a contract between us for the purposes
hereinabove set forth.
Executed and delivered as of this 26th day of May, 1994.
HADSON ENERGY LIMITED
By /s/ CLYDE E. MCKENZIE
Its Vice President
Accepted and agreed to as of the day and year last above
written.
Address and Amount and Percentage of
Facility Amount:
First Canadian Place BANK OF MONTREAL,
Toronto, Ontario M5X 1A1 individually and as Agent
Attention: Corporate Loan
Administration
Sylvia Ehrlund
Level B-2
With copies of notices to: /s/ ROBERT L. ROBERTS
Robert L. Roberts
700 Louisiana, Suite 4400 Director, US Corporate Banking
Houston, Texas 77002
Attention: Robert L. Roberts
Facility Amount Percentage:
$50,000,000
(100%)
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<PAGE> 1
EXHIBIT 11.1
APACHE CORPORATION
COMPUTATION OF EARNINGS PER SHARE
(In thousands except per share data)
<TABLE>
<CAPTION>
For the For the
Quarter Ended Six Months Ended
June 30, 1994 June 30, 1994
-------------------------- --------------------------
Fully Fully
Primary Diluted Primary Diluted
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net income $ 10,196 $ 10,196 $ 19,603 $ 19,603
Assumed reduction of interest
expense upon conversion of
$75 million 3.93% convertible
notes, net of tax 532 532 1,063 1,063
--------- --------- --------- ---------
Net income, as adjusted $ 10,728 $ 10,728 $ 20,666 $ 20,666
========= ========= ========= =========
Weighted average common
shares outstanding 61,243 61,243 61,204 61,204
Stock options: common stock
equivalents outstanding using
the treasury stock method 236 236 236 236
Common shares issuable upon
assumed conversion of
3.93% convertible notes 2,778 2,778 2,778 2,778
--------- --------- --------- ---------
Common shares outstanding,
as adjusted 64,257 64,257 64,218 64,218
========= ========= ========= =========
Earnings per share $ .17 $ .17 $ .32 $ .32
========= ========= ========= =========
</TABLE>
