SIXTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of the 1st day of July, 1997, by and among CAIRN ENERGY
USA, INC., a Delaware corporation ("Borrower"), ING (U.S.) CAPITAL CORPORATION,
f/k/a Internationale Nederlanden (U.S.) Capital Corporation, as agent ("Agent"),
and ING (U.S.) capital corporation ("ING Capital"), MEESPIERSON N.V.
("MeesPierson"), and CREDIT LYONNAIS NEW YORK BRANCH ("Credit Lyonnais"), as
lenders (collectively, "Lenders").
RECITALS:
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Borrower, Agent and Lenders entered into that certain First Amended and
Restated Credit Agreement dated as of December 20, 1994, as amended by a First
Amendment to First Amended and Restated Credit Agreement dated December 12,
1995, a Second Amendment to First Amended and Restated Credit Agreement dated
January 15, 1996, a Third Amendment to First Amended and Restated Credit
Agreement dated June 28, 1996, a Fourth Amendment to First Amended and Restated
Credit Agreement dated November 7, 1996 and a Fifth Amendment to First Amended
and Restated Credit Agreement dated March 14, 1997 (the "Original Agreement"),
for the purposes and consideration therein expressed, pursuant to which Lenders
made and became obligated to make loans to Borrower as therein provided; and
Borrower, Agent and Lenders desire to amend the Original Agreement as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I - Definitions and References
Section 1.1 Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment, and the following terms when used in this Amendment shall have
the following meangins: Original Agreement shall have the same meanings:
"Amendment" means this Sixth Amendment to First Amended and Restated
Credit Agreement.
"Amendment/Allonge" has the meaning given it in Section 3.1(ii)
hereof.
"Amendment Documents" means this Amendment and each Amendment/Allonge.
"Credit Agreement" means the Original Agreement as amended hereby.
ARTICLE II - Amendments to Original Agreement
Section 2.1. Defined Terms. The definition of "Facility A Commitment
Period" set forth in Section 1.1 of the Original Agreement is hereby amended in
its entirety to read as follows:
"Facility A Commitment Period" means the period from and including the
date hereof until and inculding January 1, 1998 (or, if earlier, the day on
which the Facility A Notes first become due and payable in full).
Section 2.2. Amendment to Regular Payments. Section 2.8 of the
Original Agreement is hereby amended in its entirety to read as follows:
Section 2.8 Regular Payments. Borrower will pay interest on the
Loans as specified in the Notes. Borrower will repay the aggregate
principal amount of the Facility A Loans outstanding on the last day
of the Facility A Commitment period in thirteen (13) quarterly
installments, on the first day of each April, July, October and
January, beginning April 1, 1998. The first such installment shall be
in an amount equal to twenty percent (20%) of the aggregate unpaid
principal balance of the Facility A Loans at the end of the Facility A
Commitment Period; each of the next two (2) such installments shall be
in an mount equal to ten percent (10%) of the aggregate unpaid
principal balance of the Facility A Loans at the end of the Facility A
Commitment Period; each of the next four (4) such installments shall
be in an amount equal to nine percent (9%) of the aggregate unpaid
principal balance of the Facility A Loans at the end of the Facility A
Commitment Period; and each of the last six (6) such installments
shall be in an amount equal to four percent (4%) of the aggregate
unpaid principal balance of the Facility A Loans at the end of the
Facility A Commitment Period. Such amounts shall be rounded upwards to
the nearest $1,000. Agent shall determine the amount of each such
principal installment, which amount shall be conclusive, absent
manifest error. Borrower will repay the aggregate principal amount of
the Facility B Loans on the maturity date set forth in the Facility B
Notes.
ARTICLE III - Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as of
the date first above written when (i) Agent shall have received this Amendment
at Agent's office duly authorized, executed and delivered by Borrower and each
Lender, (ii) Borrower shall have issued and delivered to each Lender an
Amendment and Allonge (each an "Amendment/Allonge") to each Facility A Note in
the form attached hereto as Attachment 1, duly executed on behalf of Borrower,
and (iii) Agent shall have additionally received all of the following documents
each being duly authorized, executed and delivered, and in form and substance
satisfactory to Agent and each Lender:
(a) Omnibus Certificate. An Omnibus Certificate of the Secretary and
of the Chairman of the Board, President or a Senior Vice President of
Borrower of even date with this Amendment, which shall contain the names
and signatures of the officers authorized to execute this Amendment and
which shall certify to the truth, correctness and completeness as of the
date hereof of: (i) all of the exhibits attached to that certain Omnibus
Certificate dated as of November 7, 1996 made by such officers of Borrower,
and (ii) a copy of resolutions duly adopted by the Board of Directors of
Borrower and in full force and effect at the time this Amendment is entered
into, authorizing the execution of this Amendment.
(b) Compliance Certificate. A Compliance Certificate of the Senior
Vice President-Finance of Borrower, of even date with this Amendment, in
which such officer shall certify, to the best of his knowledge and belief
after due inquiry, to the satisfaction of the conditions set out in
subsections (a) through (d), inclusive of Section 3.2 of the Original
Agreement as of the date hereof.
ARTICLE IV - Representations, Warranties and Covenants
Section 4.1. Representations, Warranties and Covenants of Borrower. In
order to induce Agent and Lenders to enter into this Amendment, Borrower
represents, warrants and covenants to Agent and each Lender that:
(a) The representations and warranties contained in Section 4.1 of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof, except to the extent that such representations and
warranties are made in the Original Agreement only in reference to a
specific date and except to the extent that the facts upon which such
representations are based have been changed by the extension of credit
under the Credit Agreement.
(b) Borrower is duly authorized to execute and deliver this Amendment
and each other Amendment Document and is and will ctoninue to be duly
authorized to borrower and to perform its obligations hereunder and
thereunder.
(c) The execution and delivery by borrower of this Amendment and each
other Amendment Document and the performance by it of its obligations
hereunder and under the Credit Agreement and the consummation of the
transactions contemplated hereby and thereby do not and will not conflict
with any provision of law, statute, rule or regulation or of the articles
of incorporation or bylaws of Borrower or of any material agreement,
judgment, license, order or permit applicable to or binding upon Borrower
or result in the creation of any lien, charge or encumbrance upon any
assets or properties of Borrower, except as expressly contemplated in the
Loan Documents. Except for those which have been duly obtained, no consent,
approval, authorization or order of any court or governmental authority or
third party is required in connection with the execution and delivery by
Borrower of this Amendment or any Amendment Document or to consummate the
transactions contemplated hereby and thereby.
(d) When this Amendment and each other Amendment Document is duly
executed and delivered, each of this Amendment, the other Amendment
Documents and the Credit Agreement will be a legal and binding instrument
and agreement of Borrower, enforceable in accordance with its terms, except
as limited by bankruptcy, insolvency and similar laws and be general
principles of equity.
(e) The audited annual Consolidated financial statements of Borrower
dated as of December 31, 1996 and the unaudited quarterly Consolidated
financial statements of Borrower dated as of March 31, 1997 fairly present
the Consolidated financial position at such dates and the Consolidated
statement of operations and cash flows for the periods ending on such dates
for Borrower. Copies of such financial statements have heretofore been
delivered to Lender. Since March 31, 1997, no material adverse change has
occurred in the financial condition or business or in the Consolidated
financial condition or businesses of Borrower.
ARTICLE V - Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. The Loan
Documents, as they may be amended or affected by this Amendment and the
other Amendment Documents, are hereby ratified and confirmed in all
respects. Any reference to the Credit Agreement in any Loan Document shall
be deemed to refer to this Amendment also and any referenced in any Loan
Document to any other document or instrument amended, renewed, extended or
otherwise affected by this Amendment or the other Amendment Documents shall
also refer to such Amendment and such Amendment Documents. The execution,
delivery and effectiveness of this Amendment and each other Amendment
Document shall not operate as a waiver of any right, power or remedy of
Agent or any Lender under the Credit Agreement or any other Loan Document
nor constitute a waiver of any provision of the Credit Agreement or any
other Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive
until all of the obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by Borrower
hereunder or under the Credit Agreement to Agent or any Lender shall be
deemed to constitute representations and warranties by, or agreements and
covenants of, Borrower under this Amendment and under the Credit Agreement.
Section 5.3. Protection of Security Interests and Liens. Borrower
agrees to deliver to Agent within fifteen days after request any additional
amendments or supplements to any Security Documents, properly completed and
executed (and acknowledged when required) by Borrower, in form and
substance satisfactory to Agent, which Agent reasonably requests for the
purpose of perfecting, confirming, or protecting any Liens or other rights
in Collateral securing any Obligations.
Section 5.4. Loan Documents. This Amendment and each other Amendment
Document is a Loan Document, and all provisions in the Credit Agreement
pertaining to Loan Documents apply hereto.
Section 5.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA IN ALL RESPECTS, INCLUDING
CONSTRUCTION, VALIDITY AND PERFORMANCE.
Section 5.6. Counterparts. This Amendment may be separately executed
in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute
one and the same Amendment.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
CAIRN ENERGY USA, INC.
By: /s/ A. Allen Paul
A. Allen Paul, Senior Vice President
Finance