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Exhibit 4.A.IV
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POGO PRODUCING COMPANY
_______________________
Third Amendment
Dated as of June 1, 1994
to
Credit Agreement
Dated as of September 23, 1992
______________________________
__________________________________________________
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of June 1, 1994 (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, as amended by the
First Amendment to Credit Agreement dated as of September 30, 1992 and the
Second Amendment to Credit Agreement dated as of December 31, 1993, (as amended
thereby, and as the same may have been further amended or modified by the
parties, 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 following definition as set forth in the Credit
Agreement is amended in its entirety as set forth below and such definition, as
so amended, is hereby incorporated by reference into the Credit Agreement, as
amended by this Amendment:
"Applicable Margin" means, at any time that the Borrower's Implied Senior
Debt Rating is equal to any rating set forth below, the percentages per
annum set forth opposite such Implied Senior Debt Rating for CD Rate Loans
and LIBO Rate Loans; provided, that if the Borrower's Implied Senior Debt
Rating shall change at any time, the Applicable Margin set forth below
shall become effective on the immediately next Quarterly Payment Date:
Minimum Implied Senior Debt Rating from
Standard & Poors (or an equivalent rating from CD Rate LIBO Rate
Moodys or another approved rating agency) Loans Loans
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B+ or lower 1 7/8% 1 3/4%
BB- 1 5/8% 1 1/2%
BB 1 3/8% 1 1/4%
BB+ 1 1/8% 1 %
BBB- or higher 7/8% 3/4%
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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 Partial Amendment of Section 3.3.1(a) of the Credit Agreement.
Section 3.3.1(a) of the Credit Agreement is hereby amended and partially
replaced by:
(a) adding the following phrase at the end of such section immediately
following the phrase "plus a margin of 1/4%": "if the Borrower's Implied
Senior Debt Rating is B+ or lower, or equal to the Prime Rate from time to
time in effect if the Borrower's Implied Senior Debt Rating is BB- or
higher; provided, that if the Borrower's Implied Senior Debt Rating shall
change at any time and such change would affect the margin charged on a
Prime Rate Loan, the new margin, as set forth above, shall become
effective on the immediately next Quarterly Payment Date".
2.2 Partial Amendment of Section 3.4.1 of the Credit Agreement. Section
3.4.1 of the Credit Agreement is hereby amended and partially replaced by:
(a) adding the following phrase at the end of the first sentence of such
section immediately preceding the parenthetical "(such fees, the
"Commitment Fees")": "if the Borrower's Implied Senior Debt Rating is BB-
or lower, or a commitment fee at the rate of 3/8 of 1% per annum on such
Lender's Percentage of the sum of the average daily unused portion of the
Revolving Loan Commitment Amount if the Borrower's Implied Senior Debt
Rating is BB or higher"; and
(b) adding the following phrase at the end of the first sentence of such
section immediately following the parenthetical "(such fees, the
"Commitment Fees")": "provided, that if the Borrower's Implied Senior
Debt Rating shall change at any time and such change would result in a
different Commitment Fee, the new Commitment Fee shall become effective on
the immediately next Quarterly Payment Date."
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
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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 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, including the
Credit Agreement 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, including the Credit Agreement 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.
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,
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delivery or performance by the Borrower of this Amendment.
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 laws, 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 from and
after the date hereof when counterparts hereof executed on
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behalf of the Borrower and each Lender (or notice thereof satisfactory to the
Agent) shall have been received by the Agent and notice thereof shall have been
given by the Agent to the Borrower and each Lender. All modifications to the
Credit Agreement effected by this Amendment, including changes in the
calculation of interest rates and Commitment Fees, if any, will be given
retroactive effect to the date of this Amendment.
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: /s/ D. STEPHEN SLACK
Name: D. Stephen Slack,
Title: Senior Vice
President, Finance
BANK OF MONTREAL,
acting through its U.S.
branches and agencies,
including initially
its Chicago Illinois
branch, as Agent
By: /s/ MARK M. GREEN
Name: Mark M. Green
Title: Director, U.S.
Corporate Banking
BANQUE PARIBAS
acting through its Houston
Agency, as Co-Agent
By: /s/ BARTON D. SCHOUEST
Name: Barton D. Schouest
Title: Vice President
By: /s/ TIMOTHY A DONNON
Name: Timothy A. Donnon
Title: Regional GeneralManager
BANK OF MONTREAL
By: /s/ MARK M. GREEN
Name: Mark M. Green
Title: Director, U.S.
Corporate Banking
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BANQUE PARIBAS
By: /s/ BARTON D. SCHOUEST
Name: Barton D. Schouest
Title: Vice President
By: /s/ TIMOTHY A DONNON
Name: Timothy A. Donnon
Title: Regional GeneralManager
NBD BANK, N.A.
By: /s/ J. L. CALDWELL
Name: James L. Caldwell IV
Title: First Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ H. LOUIS BAILEY
Name: H. Louis Bailey
Title: V.P.
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