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Exhibit 99.4
________________________________________________________________________________
SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of October 23, 1995
among
APACHE CORPORATION
and
VARIOUS COMMERCIAL LENDING INSTITUTIONS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Arranger
and
CHEMICAL BANK,
as Co-Agent and Arranger
________________________________________________________________________________
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SECOND AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of October 23, 1995, (the "Second Amendment"), is among APACHE
CORPORATION, a Delaware corporation (the "Company"), the various commercial
lending institutions as are or may become parties hereto (the "Lenders"), THE
FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent (in such capacity, the
"Administrative Agent") and Arranger (in such capacity, an "Arranger") and
CHEMICAL BANK, as Co-Agent (in such capacity, the "Co-Agent") and Arranger (in
such capacity, an "Arranger").
W I T N E S S E T H:
1. The Company, the Lenders, the Arrangers, the Co-Agent and the
Administrative Agent have heretofore entered into that certain Third Amended
and Restated Credit Agreement, dated as of March 1, 1995, as previously amended
(the "Credit Agreement").
2. The Company, the Lenders, the Arrangers, the Co-Agent and the
Administrative Agent now intend to amend the Credit Agreement to permit the
Company to enter into a "Remarketed Note Program" and to address various issues
in connection therewith as follows:
I. Amendments to Third Amended and Restated Credit Agreement.
A. Section 1.1 of the Credit Agreement is hereby amended by
adding the following definition of "Remarketed Note Program" in the appropriate
alphabetical order:
"Remarketed Note Program" means that certain facility under
which the Company may issue and sell up to $250,000,000 in notes in
the manner therein described created pursuant to that certain Trust
Indenture, dated October ___, 1995, as may from time to time be
amended, supplemented, restated, reaffirmed or otherwise modified.
B. The definition of "Aggregate Available Commitment" appearing
in Section 1.1 of the Credit Agreement is hereby amended in its entirety to the
following:
"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 sum of the Borrowing Base plus the then
effective Non-conforming Borrowing Base, as such Aggregate Available
Commitment shall be reduced from time to time pursuant to Section
2.3(a), (d), (e) or (f) or Section 4.2(d); provided, however, that,
except to the extent provided
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for in the proviso to subsection 2.1(b) hereof, the Aggregate
Available Commitment shall be deemed to be reduced by the aggregate
principal amount of such remarketed notes outstanding from time to
time under the Company's Remarketed Note Program.
C. Subsection 2.1(b) of the Credit Agreement is hereby amended in
its entirety to the following:
(a) 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 increase in the Aggregate Available Commitment resulting from
the repayment of remarketed notes issued by the Company under the
Remarketed Note Program as a result of the operation of the following
proviso and after giving effect to any reductions thereof to be
effectuated on such day); provided that if the Company shall have
requested an Advance the proceeds of which will be used to repay
outstanding remarketed notes under the Remarketed Note Program, which
proceeds will be paid directly by the Administrative Agent to the
Trustee under the Remarketed Note Program for application on such
remarketed notes, so long as no Event of Default shall have occurred
and be continuing, the Aggregate Available Commitment shall not be
reduced pursuant to the proviso of the definition of Aggregate
Available Commitment to the extent of the amount so requested as an
Advance to repay principal amounts outstanding under such remarketed
notes.
D. Subsection 3.1(a) of the Credit Agreement is amended by
deleting from the first line thereof the word "noon" and inserting the phrase
"2:00 p.m. Chicago time" in lieu thereof.
E. Section 3.3 of the Credit Agreement is amended by deleting
from subsection (a) thereof the phrase "10:00 a.m. Chicago time" and inserting
the phrase "noon Chicago time" in lieu thereof.
F. Subsection 4.2(a) of the Credit Agreement is hereby amended in
its entirety to the following:
(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
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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; provided, however, notwithstanding the foregoing, in the
event that the Company shall issue remarketed notes under the
Remarketed Note Program on any day which causes the aggregate
outstanding principal amount of the Loans to exceed the Aggregate
Available Commitment as adjusted for the issuance of such remarketed
notes, the Company shall immediately, and in any event before 5:00
p.m., Chicago time, on such day, make a mandatory prepayment on the
Loans in an amount equal to the lesser of (i) the amount by which the
aggregate outstanding principal amount of the Loans exceeds the
Aggregate Available Commitment as adjusted for the issuance of such
remarketed notes or (y) the aggregate principal amount of such
remarketed notes issued on such day. 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.
G. Section 11.1 of the Credit Agreement is hereby amended (a) by
deleting from subsection 11.1(h) the letter "(g)" from the second line thereof
and by replacing it with the letter "(h)"; (b) by relettering subsection
11.1(h) as subsection 11.1(i); and (c) by inserting the following after
subsection 11.1(g) thereof:
(h) Other Indebtedness of the Company relating to the
Remarketed Note Program up to a maximum amount of $250,000,000; and
H. Subsection 11.7(c) of the Credit Agreement is hereby amended
in its entirety to the following:
(a) the Company will not and will not permit any of its
Subsidiaries to make any optional payment or prepayment on, or
redemption of, or redeem, purchase or defease prior to its stated
maturity, any Indebtedness other than Indebtedness incurred under this
Agreement, the other Loan Documents, or the repurchase of any
remarketed notes under the Remarketed Note Program,
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Indebtedness of Offshore or Indebtedness evidenced by the
DEKALB Notes; provided with respect to Indebtedness of Offshore, that
the optional payment or prepayment be made with proceeds of the
facility described in item A.1 of Schedule 11.1; provided with respect
to Indebtedness of DEKALB evidenced by the DEKALB Notes, that the
optional payment or prepayment be made with proceeds of the facility
described in item B.1 or B.2 of Schedule 11.1, with cash on hand at
DEKALB or with proceeds of Investments permitted pursuant to Section
11.12(i); and provided that DEKALB may borrow, repay and reborrow
pursuant to the facilities described as item B.1, B.2 and B.3 of
Schedule 11.1;
I. Subsection 12.6(a) of the Credit Agreement is hereby amended
in its entirety to the following:
(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 and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated
maturity thereof, provided that for purposes hereof any purchase by
the Company of remarketed notes under the Remarketed Note Program
pursuant to a special mandatory purchase resulting from a failed
remarketing of such remarketed notes shall not constitute a prepayment
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.
II. EFFECTIVENESS. This Second Amendment shall become effective
as of the date hereof when the Administrative Agent shall have received
counterparts hereof duly executed by the Company, the Lenders, the
Administrative Agent and the Co-Agent (or, in the case of any party as to which
an executed counterpart shall not have been received, telegraphic, telex, or
other written confirmation from such party of execution of a counterpart hereof
by such party).
III. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce
the Lenders, the Administrative Agent, the Co-Agent and the Arrangers to enter
into this Second Amendment, the Company hereby
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reaffirms, as of the date hereof, its representations and warranties in their
entirety contained in Article VIII of the Credit Agreement and in all other
documents executed pursuant thereto (except to the extent such representations
and warranties relate solely to an earlier date) and additionally represents
and warrants as follows:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority, permits
and approvals, and is in good standing to conduct its business in each
jurisdiction in which its business is conducted.
(ii) The Company has the corporate power and authority and
legal right to execute and deliver this Second Amendment and to
perform its obligations hereunder. The execution and delivery by the
Company of this Second Amendment and the performance of its
obligations hereunder have been duly authorized by proper corporate
proceedings, and this Second Amendment and the Credit Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(iii) No Default or Unmatured Default has occurred and is
continuing as of the date hereof.
(iv) There has been no material adverse change (a) in the
businesses, assets, properties, operations, condition (financial or
otherwise) or results of operations or prospects of the Company and
its Subsidiaries from Xxxxx 0, 0000, (x) affecting the rights and
remedies of the Lenders under and in connection with this Second
Amendment and the Credit Agreement, as amended by this Second
Amendment, or (c) in the ability of the Company to perform its
obligations under this Second Amendment or the Credit Agreement, as
amended by this Second Amendment.
(v) There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of
any of their officers threatened against or affecting the Company or
its Subsidiaries which is or could have a Material Adverse Effect.
IV. DEFINED TERMS. Except as amended hereby, terms used herein
when defined in the Credit Agreement shall have the same meanings herein unless
the context otherwise requires.
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V. REAFFIRMATION OF CREDIT AGREEMENT. This Second Amendment
shall be deemed to be an amendment to the Credit Agreement, and the Credit
Agreement, as amended hereby, is hereby ratified, approved and confirmed in
each and every respect. All references to the Credit Agreement herein and in
any other document, instrument, agreement or writing shall hereafter be deemed
to refer to the Credit Agreement as amended hereby.
VI. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
All obligations of the Company and rights of the Lenders, the Administrative
Agent, the Co-Agent and the Arrangers and any other holders of the Notes
expressed herein shall be in addition to and not in limitation of those
provided by applicable law.
VII. SEVERABILITY OF PROVISIONS. Any provision in this Second
Amendment that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of this Second Amendment are
declared to be severable.
VIII. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Second Amendment by
signing any such counterpart.
IX. HEADINGS. Article and section headings in this Second
Amendment are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of this Second Amendment.
X. SUCCESSORS AND ASSIGNS. This Second Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
XI. NOTICE. THIS WRITTEN SECOND AMENDMENT TOGETHER WITH THE THIRD
AMENDED AND RESTATED CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company, the Lenders, the Administrative
Agent, the Co-Agent and the Arrangers have executed this Second Amendment as of
the date first above written.
APACHE CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
--------------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, as Administrative Agent
and as Arranger
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
CHEMICAL BANK, Individually, as Co-Agent and
as Arranger
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: M.D.
BANK OF MONTREAL, Individually and as Lead
Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Director, U.S. Corporate
Banking
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CIBC INC., Individually and as Lead Manager
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
NATIONSBANK, Individually and as Lead Manager
By: /s/ Xx X. Xxxxxxx
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Name: Xx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANQUE PARIBAS
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: First Vice President
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XXXXXXX XXXX XXX, XXX XXXX BRANCH
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxxx X. XxXxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxx
Title: Vice President
ABN-AMRO BANK N.V. - HOUSTON AGENCY
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: VP
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: AVP
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, SAN FRANCISCO AGENCY
By:
--------------------------------------------
Name:
Title:
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XXX XXXXX XXXXXXXXX BANK, N.A.
By:
-------------------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
THE FUJI BANK, LIMITED - HOUSTON AGENCY
By:
-------------------------------------------
Name:
Title:
UNION BANK OF SWITZERLAND, HOUSTON AGENCY
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ Xxx X. Xxxxx
--------------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
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XXXXX XXXX
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Challenger
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Name: Xxxxx X. Challenger
Title: Assistant Vice President
CHRISTIANIA BANK OG KREDITKASSE
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
COLORADO NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Xxxxxx Xxxxxx
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Name: Saturo Otsubo
Title: Joint General Manager
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NBD BANK
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
ROYAL BANK OF CANADA, GRAND CAYMAN
(NORTH AMERICAN #1) BRANCH
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Manager
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