Form of Request for Approval of Extension of Maturity Date and Amendment April 5, 2007
Exhibit 10.2
Form of Request for Approval of Extension of Maturity Date and Amendment
April 5, 2007
VIA INTRALINKS
THE LENDERS UNDER THE APACHE
CORPORATION 2006 U.S. CREDIT FACILITY
CORPORATION 2006 U.S. CREDIT FACILITY
| Re: | Apache Corporation 2006 U.S. $1,500,000,000 Five-Year Senior Revolving Credit Facility |
Ladies and Gentlemen:
Reference is made to that certain Xxxxxxx and Restated Credit Agreement, dated as of May 9,
2006 (together with all amendments, if any, from time to time made thereto, the “Five-Year
Credit Agreement”), among Apache Corporation (the “Borrower”), the Lenders party
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”),
and the other agents party thereto. Terms defined in the Credit Agreement are used herein with the
same meanings.
I. Extension of the Credit Facility
In the March 23, 2007 Annual Certificate of Extension delivered to the Administrative Agent
which is attached hereto as Exhibit A, Borrower requested pursuant to Section 2.6 of the
Credit Agreement the extension of the Maturity Date, and concomitantly the total Commitments under
the Credit Agreement from May 28, 2011 to May 28, 2012. The Borrower hereby certifies that no
Event of Default has occurred and is continuing under the Credit Agreement.
This letter is to confirm that the Lenders hereby agree to the extension of the Maturity Date
under the Credit Agreements and the related Commitments of the Lenders from May 28, 2011 to May 28,
2012.
II. Amendment of the Credit Facility
The Borrower, the Administrative Agent and the Required Lenders hereby agree as follows:
A. The definition of “Commitment” contained in Section 1.1 of the Credit Agreement is
amended in its entirety to read as follows:
“
“Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans, as such commitment may be (a) reduced from time to
time pursuant to Section 2.8, (b) reduced or increased from time to time
pursuant to Section 2.6 or pursuant to assignments by or to such Lender
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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pursuant to Section 10.4, (c) increased from time to time pursuant to
Section 2.21, and (d) terminated pursuant to Sections 4.1,
8.2 or 8.3. The amount of the Commitment represents such Xxxxxx’s
maximum Revolving Credit Exposure hereunder. The initial amount of each Lender’s
Commitment is set forth on Schedule 2.1, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable, or
in an applicable Notice of Commitment Increase. The initial aggregate amount of the
Lenders’ Commitments is $1,500,000,000.”
(iii). Section 1.1 of the Credit Agreement is amended by inserting the following definitions
of “CI Lender”, “Commitment Increase”, “Commitment Increase Effective
Date”, “New Funds Amount”, “Notice of Commitment Increase”, “Reducing
Percentage Lender” and “Reduction Amount” in appropriate alphabetical order:
“ “CI Lender” is defined in Section 2.21.
“Commitment Increase” is defined in Section 2.21.
“Commitment Increase Effective Date” is defined in Section 2.21.
“New Funds Amount” is defined in Section 2.21.
“Notice of Commitment Increase” is defined in Section 2.21.”
“Reducing Percentage Lender” is defined in Section 2.21.
“Reduction Amount” is defined in Section 2.21.”
(iv). The Credit Agreement is amended by inserting the following Section 2.21 after
Section 2.20 of the Credit Agreement:
“ SECTION 2.21 Increase in Commitments.
(a) Subject to the terms and conditions set forth herein, the Borrower shall
have the right, without the consent of the Lenders or the Administrative Agent, to
cause from time to time an increase in the total amount of the Commitments (a
“Commitment Increase”) by adding to this Agreement one or more additional
financial institutions that are not already Lenders hereunder and that are
reasonably satisfactory to the Administrative Agent (each a “CI Lender”) or
by allowing one or more existing Lenders to increase their respective Commitments;
provided, however, that (i) no Event of Default shall have occurred
which is continuing, (ii) no such Commitment Increase shall cause the total amount
of the Commitments to exceed U.S.$2,250,000,000, (iii) no Lender’s Commitment shall
be increased without such Lender’s prior written consent (which consent may be given
or withheld in such Lender’s sole and absolute
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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discretion) and (iv) if, on the effective date of such increase, any Loans have
been funded, then the Borrower shall be obligated to pay any breakage fees or costs
in connection with the reallocation of such outstanding Loans.
(b) Any Commitment Increase must be requested by written notice from the
Borrower to the Administrative Agent (a “Notice of Commitment Increase”) in
the form of Exhibit 2.21 attached hereto. Once the Notice of Commitment
Increase is fully-executed, such notice and such Commitment Increase shall be
effective on the proposed effective date set forth in such notice (not less than
five (5) Business Days after receipt by the Administrative Agent) or on another date
agreed to by the Administrative Agent and the Borrower (such date referred to as the
“Commitment Increase Effective Date”).
(c) On each Commitment Increase Effective Date, to the extent that there are
Loans outstanding as of such date, (i) each CI Lender shall, by wire transfer of
immediately available funds, deliver to the Administrative Agent such CI Lender’s
New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made
by such CI Lender to the Borrower pursuant to this Agreement on such Commitment
Increase Effective Date, (ii) the Administrative Agent shall, by wire transfer of
immediately available funds, pay to each then Reducing Percentage Lender its
Reduction Amount, which amount, for each such Reducing Percentage Lender, shall
constitute a prepayment by the Borrower pursuant to Section 2.10, ratably in
accordance with the respective principal amounts thereof, of the principal amounts
of all then outstanding Loans of such Reducing Percentage Lender, and (iii) the
Borrower shall be responsible to pay to each Lender any breakage fees or costs in
connection with the reallocation of any outstanding Loans.
(d) For purposes of this Section, the following defined terms shall have the
following meanings: (1) “New Funds Amount” means the amount equal to the
product of a Lender’s increased Commitment or a CI Lender’s Commitment (as
applicable) represented as a percentage of the total amount of the Commitments after
giving effect to the Commitment Increase, times the aggregate principal amount of
the outstanding Loans immediately prior to giving effect to the Commitment Increase,
if any, as of a Commitment Increase Effective Date (without regard to any increase
in the aggregate principal amount of Loans as a result of borrowings made after
giving effect to the Commitment Increase on such Commitment Increase Effective
Date); (2) “Reducing Percentage Lender” means each then existing Lender
immediately prior to giving effect to the Commitment Increase that does not increase
its respective Commitment as a result of the Commitment Increase and whose relative
percentage of the total amount of the Commitments shall be reduced as a result of
such Commitment Increase; and (3) “Reduction Amount” means the amount by
which a Reducing Percentage Lender’s outstanding Loans decrease as of a Commitment
Increase Effective Date
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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(without regard to the effect of any borrowings made on such Commitment
Increase Effective Date after giving effect to the Commitment Increase).
(e) Each Commitment Increase shall become effective on its Commitment Increase
Effective Date and upon such effectiveness (i) the Administrative Agent shall record
in its records the CI Lender’s information as provided in the Notice of Commitment
Increase and pursuant to an Administrative Questionnaire in form satisfactory to the
Administrative Agent that shall be executed and delivered by each CI Lender to the
Administrative Agent on or before the Commitment Increase Effective Date,
(ii) Schedule 2.1 hereof shall be amended and restated to set forth all
Lenders (including any CI Lenders) that will be Lenders hereunder after giving
effect to such Commitment Increase (which shall be set forth in Annex I to the
applicable Notice of Commitment Increase) and the Administrative Agent shall
distribute to each Lender (including each CI Lender) a copy of such amended and
restated Schedule 2.1, and (iii) each CI Lender identified on the Notice of
Commitment Increase for such Commitment Increase shall be a “Lender” for all
purposes under this Agreement.”
(v). The Credit Agreement hereby is amended by inserting Exhibit 2.21 to this letter
agreement as Exhibit 2.21 to the Credit Agreement following Exhibit I to the Credit Agreement.
Please indicate your consent to (i) the extension of the Maturity Date under the Credit
Agreements and the related Commitments of the Lenders from May 28, 2011 to May 28, 2012 and (ii) to
the amendments outlined above by having an authorized signatory of your financial institution
execute this letter in the space provided below and returning the executed page by the end of
business on April 23, 2007, (i) via telecopy to Xxxxx Xxxxxxx at (000) 000-0000, and (ii) via
courier to: Xxxxx Xxxxx Xxxx & Maw LLP, 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention:
Xxxxx Xxxxxxx.
This letter may be executed in any number of counterparts and all such counterparts shall
together constitute but one and the same letter.
By execution hereof, the Administrative Agent acknowledges its consent to the request for
extension and to the amendments outlined above in its capacity as a Lender.
If you have any questions, please do not hesitate to contact either Xxxx Xxxxx of the
Administrative Agent at (000) 000-0000, Xxxx Xxxxxxxxxxxxx of Apache Corporation at (000) 000-0000
or Xxxxx Xxxxxxx at Xxxxx Xxxxx Xxxx & Maw LLP at (000) 000-0000.
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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| JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE UNDERSIGNED CONSENTS TO (i) THE REQUESTED EXTENSION OF THE MATURITY DATE AND COMMITMENTS UNDER
THE CREDIT AGREEMENT AND (ii) TO THE AMENDMENTS OUTLINED ABOVE, EACH AS OF THIS DAY
OF APRIL, 2007.
| CITIBANK, N.A., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BANK OF AMERICA, N.A., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BNP PARIBAS, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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| UBS LOAN FINANCE LLC, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXX XXXXXXX FINANCING, INC., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ROYAL BANK OF CANADA, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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| UNION BANK OF CALIFORNIA, N.A., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ABN AMRO BANK N.V., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
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| BAYERISCHE LANDESBANK — CAYMAN ISLANDS BRANCH, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CALYON NEW YORK BRANCH, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX STREET COMMITMENT CORPORATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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| XXXXXX XXXXXXX BANK, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE ROYAL BANK OF SCOTLAND PLC , as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SOCIÉTÉ GÉNÉRALE, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| MIZUHO CORPORATE BANK, LTD., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE LENDERS UNDER THE APACHE
CORPORATION 2006 FIVE-YEAR CREDIT FACILITY
April 5, 2007
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| XXXXX FARGO BANK, NA, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BARCLAYS BANK PLC, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| TORONTO DOMINION (TEXAS) LLC, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| AMEGY BANK NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
ACKNOWLEDGED AND AGREED:
APACHE CORPORATION, as Borrower
By: |
||||
Name:
|
||||
Title:
|
Vice President and Treasurer |
EXHIBIT A
2007 Annual Certificate of Extension
[see attached]
Exhibit A — Page 1
EXHIBIT 2.21
NOTICE OF COMMITMENT INCREASE
JPMorgan Chase Bank, N.A.,
as Administrative Agent
for the Lenders referred to below
c/o Loan & Agency Services Group
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
as Administrative Agent
for the Lenders referred to below
c/o Loan & Agency Services Group
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
APACHE CORPORATION
Dear Sirs:
This Notice of Commitment Increase is delivered to you pursuant to Section 2.21 of
that certain Amended and Restated Credit Agreement, dated as of May 9, 2006 (together with all
amendments, if any, from time to time made thereto, the “Credit Agreement”), among Apache
Corporation, a Delaware corporation, Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent (the “Administrative Agent”), and the other agents and lenders party
thereto. Terms defined in the Credit Agreement are used herein with the same meanings.
Please be advised that Borrower hereby requests an increase effective ,
20___1 in the aggregate Commitments under the Credit Agreement from $ to
$ .2
[CI Lender] has agreed [Language for existing Lender] [to
increase effective
, 20___ its Commitment under the Credit Agreement from
$ to $ and (b) that it shall continue to be a party in all respects to
the Credit Agreement and the other Loan Documents] [Language if CI Lender is a new Lender]
[effective
, 20___ (a) to become a Lender under the Credit Agreement with a Commitment of
$ and (b) that it shall be deemed to be a party in all respects to the Credit Agreement
and the other Loan Documents.]
The parties hereto have caused this Notice of Commitment Increase to be executed and
delivered, and the certification and warranties contained herein to be made, by its Authorized
Officer this ___ day of , 200___.
| 1 | Such date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Commitment Increase (unless an earlier date is otherwise agreed to by the Borrower, any applicable Lender or CI Lender, and the Administrative Agent). | |
| 2 | After giving effect to the requested Commitment Increase, the total amount of the Commitments shall not exceed $2,250,000,000. |
Exhibit 2.21 — Page 1
| APACHE CORPORATION | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
ACKNOWLEDGED AND AGREED:
| [Name of CI Lender] | ||||
By:
|
||||
Name: |
||||
Title: |
||||
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||||
By:
|
||||
Name: |
||||
Title: |
||||
Exhibit 2.21
— Page 2
