FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT, dated as of February
29, 2000 (the "Amendment"), is by and among OCEAN ENERGY, INC. (the "Company"),
a corporation duly organized and validly existing under the laws of the State of
Texas, each of the banks which is or which may from time to time become a
signatory hereto (individually, a "Bank" and, collectively, the "Banks"), BANK
OF AMERICA, N.A., successor to Bank of America National Trust and Savings
Association, as Syndication Agent, BANK ONE, TEXAS, N.A., as Documentation
Agent, SOCIETE GENERALE, SOUTHWEST AGENCY and BANK OF MONTREAL, as Managing
Agents, THE CHASE MANHATTAN BANK, as Auction Administrative Agent, and CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative Agent,
W I T N E S S E T H
WHEREAS the Company, the Banks and the Agents are parties to a certain
Revolving Credit Agreement, dated as of March 30, 1999 (the "Credit Agreement");
and
WHEREAS the Company and the Banks desire to amend certain provisions of the
Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein or the context otherwise
requires, or except as the definition may be amended by this Amendment,
terms used in this Amendment, including its preamble and recitals, shall
have the meanings provided in the Credit Agreement, as hereby amended.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Indebtedness" appearing in Section 1.1 of the Credit
Agreement is amended hereby by replacing the phrase "as to any Person" with
"as to any Person, without duplication".
(b) The last paragraph of the definition of "Interest Period" appearing in
Section 1.1 of the Credit Agreement is amended hereby in its entirety to
the following:
8
" Notwithstanding the foregoing: (i) each Interest Period which would
otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (ii) no Interest Period
applicable to any Eurodollar Loan or any Competitive Loan shall extend beyond
the end of the scheduled Revolving Credit Availability Period, and (iii) no
Interest Period for any Eurodollar Loans shall have a duration of less than one
month and, if the Interest Period therefor would otherwise be a shorter period,
such Loans shall not be available hereunder."
(c) The definition of "Organizational Documents" appearing in Section 1.1 of
the Credit Agreement is amended hereby by deleting the phrase "as of the
date of the Loan Document referring to such Organizational Document".
(d) Section 1.1 of the Credit Agreement is amended hereby by inserting the
following definition of "Register" in appropriate alphabetical order:
" "Register" shall have the meaning set forth in Section 13.5(d)."
(e) The definition of "Subordinated Indebtedness" appearing in Section 1.1 of
the Credit Agreement is amended hereby in its entirety to the following:
" "Subordinated Indebtedness" shall mean all unsecured Indebtedness of the
Company which is subordinated in right of payment to the payment in full of
all Obligations."
(f) The definition of "Tangible Net Worth" appearing in Section 1.1 of the
Credit Agreement is amended hereby by replacing the phrase "less any
Redemption Obligations" with "and any Redemption Obligations".
(g) The definitions of "APC", "ENSTAR Alaska", and "Senior Leverage Ratio"
appearing in Section 1.1 of the Credit Agreement are deleted in their
entirety.
(h) Subsection 3.2(a) of the Credit Agreement is amended hereby by deleting the
second sentence thereto in its entirety.
(i) The first sentence of Section 5.3 of the Credit Agreement is amended hereby
by replacing the phrase "for which payable" with "for which such interest
is payable".
(j) Section 6.2 of the Credit Agreement is amended hereby by replacing the
phrase "to make Eurodollar Loans" with "to make Eurodollar Loans with the
applicable Interest Period".
(k) Section 6.3 of the Credit Agreement is amended hereby by replacing the
phrase "(in which case the provisions of Section 6.4 hereof shall be
applicable)" with "(in which case the provisions of Sections 6.4 and 6.8
hereof shall be applicable)".
(l) Subsection 6.8(c) of the Credit Agreement is amended hereby by deleting the
phrase "if Administrative Agent and each of the other Banks shall
consent,".
(m) Section 8.1 of the Credit Agreement is amended hereby in its entirety to
the following:
"8.1 Corporate Existence. The Company, the Guarantor and each Subsidiary of
the Company are duly organized, legally existing and in good standing under
the laws of the respective jurisdictions in which they are formed, and are
duly qualified in all jurisdictions wherein the property owned or the
business transacted by them makes such qualification necessary and the
failure to so qualify could reasonably be expected to result in a Material
Adverse Effect."
(n) Section 8.6(a) of the Credit Agreement is amended hereby by replacing each
use of the phrase "present fairly" with "present fairly, in all material
respects".
(o) Section 8.18 of the Credit Agreement is amended hereby by deleting the last
four sentences thereof in their entirety.
(p) Section 8.22 of the Credit Agreement is amended hereby by replacing the
phrase "will be completed by September 30, 1999" with "has been completed
in all material respects".
(q) Subsection 9.1(a) of the Credit Agreement is amended hereby by replacing
the phrase "fairly present" with "fairly present, in all material
respects".
(r) Subsection 9.2(a)(ii) of the Credit Agreement is amended hereby in its
entirety to the following:
" (ii) [Intentionally omitted]."
(s) Section 9.7 of the Credit Agreement is amended hereby by replacing the
phrase "or charges levied by any governmental or revenue authority in
respect of any of the Loan Documents or any other document referred to
therein, all costs, expenses, taxes, assessments and other charges incurred
in connection with any filing, registration, recording or perfection of any
lien" with "or charges levied by any Governmental Authority in respect of
any of the Loan Documents or any other document referred to therein, all
costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
Lien".
(t) Subsection 9.10(vi) of the Credit Agreement is amended hereby in its
entirety to the following:
"(vi) any material change in the accuracy of the representations and
warranties of the Company or any Subsidiary contained in this Agreement or
any other Loan Document; or".
(u) Subsection 9.10(viii) of the Credit Agreement is amended hereby in its
entirety to the following:
"(viii) any tariff and rate cases and other material reports filed by the
Company or any of its Subsidiaries with any Governmental Authority and any
notice to the Company or any of its Subsidiaries from any Governmental
Authority concerning noncompliance with any applicable material Legal
Requirement; or ".
(v) Subsection 10.1(i)(d)(ii) of the Credit Agreement is amended hereby by
deleting the phrase "not exceeding, in the aggregate at any time
outstanding, $50,000,000".
(w) Subsection 10.1(i)(h) of the Credit Agreement is amended hereby in its
entirety to the following:
"(h) obligations of any Restricted Subsidiary under oil or gas purchase
contracts for oil or gas not taken, as to which such Restricted Subsidiary
is liable to pay if not made up;".
(x) Subsection 10.2(a) of the Credit Agreement is amended hereby in its
entirety to the following:
"(a) Liens securing (i) the Loans or other obligations under the Loan Documents,
and (ii) the obligations under any debt facility permitted pursuant to
Section 10.1(iii) of this Agreement which by its terms requires that such
debt facility be secured on a ratable basis with other Senior Debt upon the
incurrence of Liens generally, provided that such Liens (A) are for the
equal and ratable benefit of the Agents and the Banks under each of this
Agreement and such debt facilities and (B) cover the same collateral,".
(y) Subsection 10.2(g) of the Credit Agreement is amended hereby by replacing
"$25,000,000" with "$50,000,000".
(z) Subsection 10.2(k) of the Credit Agreement is amended hereby in its
entirety to the following:
"(k) [Intentionally omitted];".
(aa) Section 10.2(n) of the Credit Agreement is amended hereby in its
entirety to the following:
"(n) any Lien existing on any real or personal property of any Person at the
time it becomes a Restricted Subsidiary, or existing prior to the time of
acquisition upon any real or personal property acquired by the Company or
any of its Restricted Subsidiaries."
(bb) Sections 10.7 and 10.8 of the Credit Agreement are amended hereby in
their entirety to the following:
"10.7 Total Leverage Ratio. The Company will not permit its Total
Leverage Ratio to be at any time more than 3.75 to 1.00.
10.8 [Intentionally omitted]."
(cc) Sections 12.1 and 12.6 of the Credit Agreement are amended hereby by
replacing each reference to "affiliates" with "Affiliates".
(dd) The first sentence of Section 12.6 of the Credit Agreement is amended
hereby by replacing each reference to the phrase "the Company" with
"the Company and its Subsidiaries".
(ee) The fourth sentence of Subsection 13.5(a) of the Credit Agreement is
amended hereby by replacing the phrase "any provision of this
Agreement" with "any provision of this Agreement or any other Loan
Document".
(ff) Subsection 13.5(b)(ii)(B) of the Credit Agreement is amended hereby by
replacing the word "consent" with "consents".
(gg) Subsection 13.5(c)(ii) of the Credit Agreement is amended hereby by
replacing each reference to the phrase "the Company" with "the Company
and its Subsidiaries".
(hh) Subsection 13.5(c)(iii) of the Credit Agreement is amended hereby by
replacing the phrase "Section 8.6" with "Sections 8.6 and 9.1".
(ii) The second sentence of Subsection 13.5(d) of the Credit Agreement
is amended hereby by replacing the word "person" with "Person".
(jj) The fourth sentence of Section 13.6 of the Credit Agreement is amended
hereby by replacing the phrase "any right or privilege to" with "any
right or privilege to contract for, charge".
(kk) The last sentence of Section 13.6 of the Credit Agreement is amended
hereby by inserting "or to any Loan, nor shall this Agreement or any
Loan be governed by or be subject to the provisions of such Chapter
346 in any manner whatsoever" prior to the period at the end thereof.
(ll) Section 13.7 of the Credit Agreement is amended hereby by replacing
the phrase "Section 13.6" with "Sections 13.6 and 13.14".
(mm) Subsection 13.14(a) of the Credit Agreement is amended hereby by
replacing the phrase "written information about the Company" with
"written information about the Company or any of its Subsidiaries".
(nn) Subsection 13.14(b)(vi)(1) of the Credit Agreement is amended hereby
by replacing the phrase "the enforcement of the Obligations to" with
"the enforcement of the Obligations by".
(oo) Exhibit D of the Credit Agreement is hereby replaced in its entirety
by Exhibit D to this Amendment.
3. REPRESENTATIONS AND WARRANTIES.
In order to induce the Banks and the Agents to enter into this Amendment,
the Company hereby reaffirms, as of the date hereof, its representations and
warranties contained in Section 8 of the Credit Agreement (except to the extent
any such representation and warranty relates solely to an earlier date) and
additionally represents and warrants as follows:
3.1 Organization. The Company, the Guarantor and each Subsidiary of the
Company are duly organized, legally existing and in good standing under the laws
of the respective jurisdictions in which they are organized, and are duly
qualified in all jurisdictions wherein the property owned or the business
transacted by them makes such qualification necessary and the failure to so
qualify could reasonably be expected to result in a Material Adverse Effect.
3.2 Corporate Power and Authorization. The Company is duly authorized and
empowered to execute, deliver, and perform this Amendment; and all corporate
action on the Company's part for the due execution, delivery, and performance of
this Amendment has been duly and effectively taken.
3.3 No Legal Bar or Resultant Lien. The Company's creation, issuance,
execution, delivery and performance of this Amendment do not and will not
violate any provisions of the Organizational Documents of the Company or any
Legal Requirement to which the Company, the Guarantor or any Subsidiary of the
Company is subject or by which its property may be presently bound or
encumbered, or result in the creation or imposition of any Lien upon any
properties of the Company, the Guarantor or any Subsidiary of the Company, other
than those permitted by this Agreement.
3.4 Binding Obligations. This Amendment and the Credit Agreement and the
other Loan Documents constitute legal, valid and binding obligations of the
Company and its Subsidiaries and the Guarantor, to the extent each is a party
thereto, enforceable against the Company and its Subsidiaries and the Guarantor,
to the extent each is a party thereto, in accordance with their respective
terms, except as may be limited by any bankruptcy, insolvency, moratorium or
other similar laws or judicial decisions affecting creditors' rights generally
and general principles of equity whether considered at law or in equity.
4. EFFECT OF AMENDMENT.
This 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 in
any other document, instrument, agreement or writing shall hereafter be deemed
to refer to the Credit Agreement as amended hereby.
5. GOVERNING LAW, SEVERABILITY, ETC.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
APPLICABLE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE OF TEXAS
AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN EFFECT. Whenever possible,
each provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Amendment
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
THIS WRITTEN AMENDMENT AND THE CREDIT AGREEMENT AS AMENDED BY THIS
AMENDMENT 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.
6. MISCELLANEOUS.
6.1 Successors and Assigns. This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
6.2 Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
6.3 Effectiveness. This Amendment shall become effective when (i) counterparts
hereof executed on behalf of the Company and the Majority Banks (or notice
thereof satisfactory to the Agent) shall have been received by the Agent, and
(ii) notice thereof shall have been given by the Agent to the Company and each
Bank.
S - 22
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
OCEAN ENERGY, INC., a Texas corporation
By:
Name: Stephen A. Thorington
Title: Senior Vice President, Finance, Treasury and Corporate
Development
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as a Bank and as
Administrative Agent
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Auction Administrative Agent
By:
Name:
Title:
BANK OF AMERICA, N.A., successor to Bank of America National Trust and
Savings Association, as a Bank and as Syndication Agent
By:
Name:
Title:
BANK ONE, TEXAS, N.A., as a Bank and as Documentation Agent
By:
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY, as a Bank and as a Managing Agent
By:
Name:
Title:
BANK OF MONTREAL, as a Bank and as a Managing Agent
By:
Name:
Title:
BANKBOSTON, N.A., as a Bank and as Co-Agent
By:
Name:
Title:
ABN AMRO BANK N.V., HOUSTON AGENCY, as a Bank and as Co-Agent
By:
Name:
Title:
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Bank and as Co-Agent
By:
Name:
Title:
By:
Name:
Title:
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION, as a Bank
By:
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH, as a Bank
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Bank and as Co-Agent
By:
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., as a Bank
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD., as a Bank
By:
Name:
Title:
THE BANK OF NEW YORK, as a Bank and as Co-Agent
By:
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as a Bank and as Co-Agent
By:
Name:
Title:
THE FUJI BANK LIMITED, NEW YORK BRANCH, as a Bank
By:
Name:
Title:
THE SANWA BANK, LIMITED, as a Bank
By:
Name:
Title:
BANKERS TRUST COMPANY, as a Bank
By:
Name:
Title:
U.S. BANK, NATIONAL ASSOCIATION, as a Bank
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as a Bank
By:
Name:
Title:
Exhibit D - Page 3
Exhibit D
Form of
Compliance Certificate
The undersigned, the ___________________ of OCEAN ENERGY, INC., a Texas
corporation (the "Company"), hereby certifies that he is authorized to execute
this certificate on behalf of the Company, pursuant to the Revolving Credit
Agreement (the "Credit Agreement") dated as of March 30, 1999, by and among the
Company, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication
Agent for the Banks, BANK ONE, TEXAS, N.A., as Documentation Agent for the
Banks, SOCIETE GENERALE, SOUTHWEST AGENCY and BANK OF MONTREAL, as Managing
Agents for the Banks, THE CHASE MANHATTAN BANK, as Auction Administrative Agent
for the Banks, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative
Agent for the Banks ("Administrative Agent"), and the Banks therein named, as
amended; and that a review of the Company and its Subsidiaries has been made
under his supervision with a view to determining whether the Company and its
Subsidiaries have fulfilled all of their respective obligations under the Credit
Agreement and the other Loan Documents (as defined in the Credit Agreement); and
on behalf of the Company further certifies, represents and warrants that to his
knowledge, after due inquiry (each capitalized term used herein having the same
meaning given to it in the Credit Agreement unless otherwise specified):
As of , ______:
(a) The Company and its Subsidiaries have fulfilled their respective
obligations under the Credit Agreement and the other Loan Documents as each
applies after giving effect to any amendments, consents and/or waivers that may
be in effect from time to time.
(b) Except for the facts heretofore disclosed to the Administrative Agent
under the Credit Agreement in writing, which facts (I) are not materially more
adverse to the Company and its Subsidiaries or any other Obligor, (II) do not
materially decrease the ability of any Agent or any of the Banks to collect the
Obligations as and when due and payable and (III) do not materially increase the
liability of the Agents or any of the Banks, in each case compared to those
facts existing on the date hereof and the material details of which have been
set forth in the Financial Statements delivered to the Administrative Agent
under the Credit Agreement prior to the date hereof or in the Disclosure
Statements provided for in the Credit Agreement, and except for the
representations set forth in the Loan Documents which, by their terms, are
expressly (or by means of similar phrasing) made as of the date of the Credit
Agreement, only, the representations and warranties made in each Loan Document
are true and correct in all material respects on and as of the time of delivery
hereof, with the same force and effect as if made on and as of the time of
delivery hereof.
(c) The Financial Statements delivered to the Administrative Agent under
the Credit Agreement concurrently with this Compliance Certificate have been
prepared in accordance with GAAP consistently followed throughout the period
indicated and fairly present, in all material respects, the consolidated
financial condition and results of operations of the applicable Persons as at
the end of, and for, the period indicated (subject, in the case of quarterly
Financial Statements, to normal changes resulting from year-end adjustments).
(d) No Default has occurred and is continuing. In this regard the
compliance with the provisions of Sections 10.7 and 10.9 of the Credit Agreement
is as follows:
(i) Section 10.7 of the Credit Agreement - Total Leverage Ratio
Total Debt (1) $__________
EBITDAX (2) $__________
Total Leverage Ratio (1)/(2) ________
Note: Must be no greater than 3.75 to 1.00.
(iii) Section 10.9 of the Credit Agreement - Minimum Consolidated Net Worth
Preferred stock (if any), par value of common stock, capital
in excess of par value of common stock and retained earnings
of Company and its Restricted Subsidiaries
(1) $__________
Less treasury stock (if any), goodwill, cost in excess of fair value
of net assets acquired and all other assets that are properly classified as
intangible assets of Company and its Restricted Subsidiaries (2)
$__________
Plus any expenses associated with the Merger occurring prior to
December 31, 1999 and not in excess of $30,000,000 in the
aggregate, and the amount of noncash write downs of long-lived
assets in compliance with GAAP or SEC guidelines
(3) $__________
Plus or minus, as appropriate, any extraordinary or non-recurring net
gains or losses together with any related provision for taxes on
such gain or loss, realized in connection with any extraordinary
or nonrecurring gains or losses
(4) $__________
Plus or minus, as appropriate, foreign currency translation
adjustments applicable to Company and its Restricted Subsidiaries
(5) $__________
Consolidated Net Worth [(1) - (2) + (3) +/- (4) +/- (5)]
$__________
Consolidated Net Worth Requirement Initial Amount
(i) $770,000,000
Plus 50% of the sum of Company's and its Restricted Subsidiaries
consolidated net income for each fiscal quarter beginning with the
calendar quarter ending March 31, 1999
(ii) $__________
Plus 50% of the net cash proceeds received by the Company and
its Restricted Subsidiaries from the issuance of any common stock,
preferred stock or other equity for each fiscal quarter beginning
with the calendar quarter ending March 31, 1999.
(iii) $__________
Total CNW Requirement [(i) + (ii) + (iii)]
$__________
Note: Consolidated Net Worth must be equal to or greater than the
Total CNW Requirement
(f) There has occurred no Material Adverse Effect since the date of the
most recent Financial Statements delivered to the Banks.
(g) The following Letters of Credit are issued and currently outstanding:
Issuer:
Beneficiary:
L/C No.:
Amount:
Date of Issue:
Expiration:
DATED as of ____________________, ____.
OCEAN ENERGY, INC.
By:
Name:
Title: