EXHIBIT 4(a)(ii)
POGO PRODUCING COMPANY
______________________
First Amendment
Dated as of September 30, 1992
to
Credit Agreement
Dated as of September 23, 1992
______________________
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of September
30, 1992 (the "Amendment"), between Pogo Producing Company, a Delaware
corporation (the "Borrower"), the various financial institutions which
are or may become parties to the Credit Agreement, as amended hereby
(collectively, the "Lenders"), Bank of Montreal, acting through its
Chicago, Illinois branch, (the "Bank"), as agent (the "Agent") for the
Lenders and Banque Paribas, acting through its Houston Agency, as
co-agent (the "Co-Agent"), for the Lenders,
W I T N E S S E T H
WHEREAS the Borrower, the Lenders, the Agent and the Co-Agent are
parties to a certain Credit Agreement dated as of September 23, 1992
(the "Credit Agreement"); and
WHEREAS the Borrower desires to amend certain provisions of the
Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1 AMENDMENT. The definition of "EBITDA" as set forth in the
Credit Agreement is amended in its entirety as set forth below and
such definition is hereby incorporated by reference into the Credit
Agreement, as amended by this Amendment:
`"EBITDA" means, for any period for which a
determination thereof is to be made, on a
consolidated basis and without duplication, the
sum of the amounts for such period of (i) net
income (or loss) after taxes, (ii) interest
expense, (iii) depreciation expense and depletion
expense, (iv) amortization expense, (v) federal,
state and foreign 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 Borrower and its
Subsidiaries.'
1.2 USE OF DEFINED TERMS. 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.
2.1 AMENDMENT OF SECTION 7.8 OF CREDIT AGREEMENT. Clause (e) of
Section 7.8 of the Credit Agreement is replaced in its entirety by the
following:
"(e) the Borrower shall not have on or before July
31, 1994 (x) repaid in full (subject to Section
8.6(b) and to the proviso set forth below) the
12.5% State Farm Senior Subordinated Notes or (y)
refinanced the 12.5% State Farm Senior
Subordinated Notes (subject to the proviso set
forth below) in whole on terms which shall provide
for (i) covenants regarding the matters set forth
in SECTION 8.4 that are no more restrictive than
the covenants contained in SECTION 8.4 of this
Agreement, (ii) subordination terms that are no
less favorable to holders of the Notes than the
original subordination terms contained in the
12.5% State Farm Senior Subordinated Notes, (iii)
no principal payments in excess of $5,000,000
(less the principal amount of any 12.5% State Farm
Senior Subordinated Notes that remain outstanding
as contemplated by the proviso below) in the
aggregate for any and all such principal payments
before December 31, 1996 and (iv) except for
principal payments contemplated by the preceding
clause, no other scheduled principal payments due
before December 31, 1997; PROVIDED THAT,
notwithstanding the above, an aggregate principal
amount of no more than $5,000,000 of the 12.5%
State Farm Senior Subordinated Notes due on
December 31, 1996 may remain outstanding, and such
notes will nonetheless be deemed to have been
repaid or refinanced in whole."
3. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders and the Agent to enter into this
Amendment, the Borrower hereby reaffirms, as of the date hereof, its
representations and warranties contained in Article VI 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:
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3.1 ORGANIZATION. The Borrower and each of its corporate
Subsidiaries is a corporation validly organized and existing and in
good standing under the laws of the state, or country, of its
incorporation, and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
nature of its business requires such qualification, except where
failure to qualify would not have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries
taken as a whole or the Borrower's ability to perform the Loan
Documents, as such may be amended hereby, or this Amendment. Each of
the Borrower's Subsidiaries which is organized as a partnership is
validly organized and existing and in good standing under the laws of
the state of its formation, and is duly qualified to do business and
is in good standing as a foreign partnership where the nature of its
business requires such qualification, except where failure to qualify
would not have a material adverse effect on the business or financial
condition of the Borrower, or the Borrower and its Subsidiaries taken
as a whole or the Borrower's ability to perform under the Loan
Documents, as such may be amended hereby, or this Amendment. The
Borrower and each of its Subsidiaries has full power and authority and
holds all requisite governmental licenses, permits and other approvals
to enter into and perform its Obligations under the Credit Agreement,
as amended hereby, each other Loan Document and this Amendment and to
own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
3.2 DUE AUTHORIZATION, NON-CONTRAVENTION. The execution,
delivery and performance by the Borrower of this Amendment and the
consummation of the transactions contemplated hereby and by the Credit
Agreement as so amended, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do
not
(a) contravene the Borrower's Organic Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any Subsidiary; or
(c) result in, or require the creation or imposition
of, any Lien on any properties of the Borrower or its
Subsidiaries except as Liens will be imposed, created, or
required upon execution and delivery of the Security Documents
pursuant to SECTION 7.8 of the Credit Agreement.
3.3 GOVERNMENTAL APPROVAL. No authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution,
delivery or performance by the Borrower of this Amendment.
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3.4 VALIDITY, ETC. This Amendment and the Credit Agreement as
amended hereby constitute the legal, valid and binding obligations of
the Borrower, enforceable in accordance with their respective terms
except as such enforceability is subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization or similar law
relating to or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), including concepts of
materiality, reasonableness, good faith and fair dealing.
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 A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS. 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 AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY 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
counterparts hereof executed on behalf of the Borrower and each Lender
(or notice thereof satisfactory to the Agent) shall
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have been received by the Agent and notice thereof shall have been
given by the Agent to the Borrower and each Lender.
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.
POGO PRODUCING COMPANY
By: D. STEPHEN SLACK
Name: D. Stephen Slack
Title: Sr. V.P. Finance
BANK OF MONTREAL,
acting through its U.S. branches
and agencies, including initially
its Chicago Illinois branch,
as Agent
By: MARK GREEN
Name: Mark Green
Title: Director
BANQUE PARIBAS
acting through its Houston
Agency, as Co-Agent
By: BARTON D. SCHOUEST
Name: Barton D. Schouest
Title: Group Vice President
By: MEI WAN TONG
Name: Mei Wan Tong
Title: Vice President
BANK OF MONTREAL
By: MARK GREEN
Name: Mark Green
Title: Director
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BANQUE PARIBAS
By: BARTON D. SCHOUEST
Name: Barton D. Schouest
Title: Group Vice President
By: MEI WAN TONG
Name: Mei Wan Tong
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: ILLEGIBLE SIGNATURE
Name:
Title:
NBD BANK, N.A.
By: JAMES L. CALDWELL, IV
Name: James L. Caldwell, IV
Title: First Vice President
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