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EXHIBIT 4.1
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POGO PRODUCING COMPANY
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Second Amendment
Dated as of July 16, 1999
to
Amended and Restated Credit Agreement
Dated as of August 1, 1997
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SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of July 16, 1999 (the "Amendment"), among 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 administrative agent (the "Agent") for the Lenders, and PARIBAS,
formerly known as Banque Paribas, as documentation agent (either the
"Documentation Agent" or "Co-Agent", and together with the Agent, the "Agents"),
for the Lenders,
W I T N E S S E T H
WHEREAS the Borrower, the Lenders and the Agents are parties to a
certain Amended and Restated Credit Agreement, dated as of August 1, 1997, as
previously amended (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. 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 "Fixed Charges", "Guarantee", "Indebtedness",
"Non-Standard Determination", "Senior Debt" and "Stated Maturity Date" appearing
in Section 1.1 of the Credit Agreement is amended hereby in its entirety to the
following:
" "Fixed Charges" means, for any period, without duplication, the sum
of (i) the total interest charges (including the interest component of
capitalized leases) which, in accordance with GAAP, would be included
on the consolidated statements of income for the Borrower, its
Subsidiaries and Affiliates, for such period, net of interest income,
plus (ii) dividends paid by the Borrower on its preferred and
preference stock during such period plus (iii) the current portion of
Specified Debt (including Non-Recourse Indebtedness but excluding
current maturities of any Loan outstanding hereunder) and the current
portion of production payments to be paid by the Borrower, its
Subsidiaries and Affiliates, as of the end of such period, plus (iv)
the amount of mandatory redemptions of preferred stock to be made by
the Borrower in cash during the succeeding twelve-month period
(excluding redemptions of shares
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of such preferred stock held by Subsidiaries or Affiliates of the
Borrower), plus (v) distributions made in respect of any Hybrid
Preferred Securities issued by any Hybrid Preferred Securities
Subsidiary."
" "Guarantee" means any agreement, undertaking or arrangement by which
any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise,
to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss)
the debt or other obligation to pay money of or, in respect of, any
other Person (other than by endorsements of instruments in the course
of collection), or guarantees the payment of dividends or other
distributions upon the shares of any other Person, provided, however,
that any agreement, undertaking or arrangement by which the Borrower or
any Subsidiary guarantees any payments with respect to any Hybrid
Preferred Securities shall not constitute a Guarantee hereunder. The
amount of any Person's obligation under any Guarantee shall (subject to
any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum outstanding principal amount, if larger)
of the debt, obligation or other liability guaranteed thereby."
" "Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters of credit (except
those which have as collateral cash or Cash Equivalent
Investments, whether or not drawn), and banker's acceptances
issued for the account of such Person;
(c) all obligations of such Person as lessee under
leases which have been or should be, in accordance with GAAP,
recorded as Capitalized Lease Liabilities except to the extent
such obligations are offset by the contractual obligations of
a third party to make payments to such Person to reimburse
such Person for a portion of such Capitalized Lease
Liabilities and such third party is current with respect to
such payments;
(d) all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the
balance sheet of such Person as of the date at which
Indebtedness is to be determined except that, in the case of
the Borrower, any preferred stock of the Borrower, now
existing or hereafter issued, which by its express terms is
not required to be redeemed in cash, property, notes or other
debt instruments by either
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the Borrower or the holder of such preferred stock prior to a
date seven years after the Effective Date, is excluded from
Indebtedness;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, advance payment agreements on which
performance is incomplete and all obligations of such Person
to pay the deferred purchase price of property or services,
and indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is
limited in recourse; and
(g) all Guarantees of such Person in respect of any
of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person
shall include the greater of that portion of the Indebtedness of any
partnership or joint venture for which such Person is (a) by operation
of law, or (b) contractually liable. Indebtedness of a Person shall not
include any Hybrid Preferred Securities issued by such Person, any
subordinated debt or other obligations of such Person initially issued
to any Hybrid Preferred Securities Subsidiary in connection with the
issuance of Hybrid Preferred Securities by such Hybrid Preferred
Securities Subsidiary or any guarantee by such Person of payments with
respect to any Hybrid Preferred Securities."
" "Non-Standard Determination" means a determination or redetermination
of the Borrowing Base that may be made either (i) in the event that
Borrower fails to comply with the delivery requirements for Reserve
Reports or Alternate Reserve Reports set forth in Section 7.2(e), (ii)
upon the occurrence of any event that permits redetermination of the
Borrowing Base under Section 8.8, (iii) at the discretion of the
Required Lenders, no more than once during any six month period ending
either October 31st, or April 30th, as applicable, or (iv) at the
request of the Borrower, no more than once during any six month period
ending either October 31st, or April 30th, as applicable, in any case
as provided in Section 2.6(b)."
" "Senior Debt" means all indebtedness for borrowed money (including
Loans outstanding under this Agreement) other than (a) Subordinated
Indebtedness, (b) Non-Recourse Indebtedness, (c) intercompany loans
from the Borrower, (d) any Hybrid Preferred Securities issued by such
Person, (e) any subordinated debt or other obligations of such Person
initially issued to any Hybrid Preferred Securities Subsidiary in
connection with the issuance of Hybrid Preferred
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Securities by such Hybrid Preferred Securities Subsidiary, and (f) any
guarantee by such Person of payments with respect to any Hybrid
Preferred Securities."
" "Stated Maturity Date" means
(a) with respect to Revolving Loans, July 1, 2001; and
(b) with respect to the Term Loans, July 2, 2003."
(b) Section 1.1 of the Credit Agreement is amended hereby by adding the
following definitions of "Hybrid Preferred Securities" and "Hybrid Preferred
Securities Subsidiary" in appropriate alphabetical order:
" "Hybrid Preferred Securities" means preferred or common equity
interests issued by any Hybrid Preferred Securities Subsidiary."
" "Hybrid Preferred Securities Subsidiary" means any business trust (or
similar entity) (i) all of the common equity interest of which is owned
(either directly or indirectly through one or more wholly-owned
Subsidiaries) by the Borrower, (ii) that has been formed for the
purpose of issuing Hybrid Preferred Securities, and (iii) substantially
all of the assets of which consist at all times of subordinated debt or
other obligations of the Borrower or a Subsidiary of the Borrower and
payments made from time to time on such subordinated debt or other
obligations."
(c) Section 2.6 of the Credit Agreement is amended hereby in its
entirety to the following:
SECTION 2.6 Determination of Borrowing Base.
(a) Upon delivery of a Reserve Report or Alternate Reserve
Report pursuant to Section 7.2 hereof and provided, that such delivery
shall be on or before the dates required therein, then with respect to
the annual or semi-annual, as the case may be, determination of the
Borrowing Base, the Agent will propose to the Lenders a Borrowing Base
for acceptance by the Required Borrowing Base Lenders. If such
Borrowing Base, as proposed by the Agent is accepted by the Required
Borrowing Base Lenders, then such agreed Borrowing Base shall be
communicated by the Agent to the Borrower on or before (i) the next
April 30th, in the case of a Reserve Report and (ii) the next October
31st, in the case of an Alternate Reserve Report, and shall remain in
effect until the next October 31st or April 30th; provided that if such
proposed Borrowing Base is not approved by the Required Borrowing Base
Lenders prior to the applicable date then, within thirty (30) days
following the applicable date, the Required Borrowing Base Lenders will
establish and agree to a Borrowing Base, and such amount will be
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promptly communicated to the Borrower; provided that the then current
Borrowing Base shall remain in effect until the Borrower is notified of
the new Borrowing Base. The new Borrowing Base shall become effective
as of the date that the Borrower receives notification from the Agent
of the new Borrowing Base. The Borrowing Base, as determined and
established pursuant to this Section 2.6(a) shall be subject, at all
times, to the redetermination of the then effective Borrowing Base as a
result of a Non-Standard Determination.
(b) With respect to a Non-Standard Determination of the
Borrowing Base, (i) the Agent or the Required Lenders shall have the
right, but not the obligation, at any time to notify the Borrower of
their intent to perform a Non-Standard Determination of the Borrowing
Base and (ii) the Borrower shall have the right to request a
Non-Standard Determination by sending a written request to the Agent
for the performance of a Non-Standard Determination of the Borrowing
Base. In connection with any Non-Standard Determination and
notwithstanding the delivery of any new Alternate Reserve Report, the
Agent shall propose, and the Required Borrowing Base Lenders shall
agree to and approve, a new Borrowing Base which shall become effective
upon receipt by the Borrower of notice of such new Borrowing Base until
such new Borrowing Base may be redetermined as a result of a scheduled
semi-annual determination of the Borrowing Base pursuant to Section
2.6(a). In connection with any Non-Standard Determination, the Borrower
shall deliver promptly upon the request of the Agent a new Alternate
Reserve Report to the Agent; provided that such Alternate Reserve
Report, whether or not delivered, shall in no way impact the
Non-Standard Determination of the Borrowing Base by the Agent or the
approval of such Borrowing Base by the Required Borrowing Base
Lenders."
(d) Subsection 8.3(k) of the Credit Agreement is amended hereby by
inserting the following prior to the semicolon at the end thereof:
"and deposit arrangements constituting Liens providing for payments
under the bareboat charter and operating agreement relating to the
"Tantawan Explorer".
(e) Subsection 8.4(a) of the Credit Agreement is amended hereby in its
entirety to the following:
" (a) the Indebtedness of the Borrower and its Subsidiaries, less
current liabilities (except for current maturities of long-term
Indebtedness), Non-Recourse Indebtedness, deferred taxes, deferred
credits and, to the extent the same constitutes Indebtedness, Thaipo
Limited's Guarantee and assumption of Tantawan Services, LLC's
obligations under the bareboat charter and operating agreement relating
to the FPSO "Tantawan Explorer", to exceed $500,000,000 on a
consolidated basis;".
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(f) Subsection 8.5(l) of the Credit Agreement is amended hereby in its
entirety to the following:
" (l) Guarantees constituting Indebtedness permitted by Section 8.4 and
Thaipo Limited's Guarantee and assumption of Tantawan Services, LLC's
obligations under the bareboat charter and operating agreement relating
to the FPSO "Tantawan Explorer";".
(g) Subsection 8.6(a) of the Credit Agreement is amended hereby by
inserting the following prior to the semicolon at the end thereof:
",and provided further that Hybrid Preferred Securities shall not be
treated as capital stock of the Borrower for purposes of this Section
8.6(a)".
(h) Subsection 8.6(b)(i) of the Credit Agreement is amended hereby by
replacing "July 1, 2000" with "July 2, 2001".
(i) Subsection 8.7(a) of the Credit Agreement is amended hereby in its
entirety to the following:
" (a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may consolidate or merge with and into, the Borrower or any other
Subsidiary and Tantawan Services LLC may liquidate or dissolve
voluntarily and may transfer the bareboat charter and operating
agreement (and associated deposit arrangements) relating to the FPSO
"Tantawan Explorer" to the joint venturers in the Block B8/32
concession located in the Gulf of Thailand;".
(j) Section 8.8 of the Credit Agreement is amended hereby in its
entirety to the following:
" SECTION 8.8 Asset Dispositions. At the request of the Agent or the
Required Lenders, in their sole discretion, the Borrowing Base may be
redetermined at any time in the event that:
(a) the aggregate value of assets (including cash accounts,
accounts receivable, production payments, and capital stock of or
partnership interests in Subsidiaries, but excluding oil, gas, and
other liquid or gaseous hydrocarbons sold in the ordinary course of
business) sold, transferred, leased, contributed, or otherwise conveyed
by the Borrower and its Subsidiaries other than to the Borrower or its
Subsidiaries or as permitted by Section 8.7, or to which the Borrower
and its Subsidiaries may grant options, warrants, or other rights,
shall exceed, in any one transaction or in the aggregate since the last
redetermination of the Borrowing Base, $10,000,000. Notwithstanding the
foregoing, the Borrower and its Subsidiaries may grant, sell, or convey
production payments as
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permitted by this Agreement in connection with Non-Recourse
Indebtedness. For purposes of this Section 8.8(a), the value of any
asset is the greater of its book value or fair market value at the time
of any disposition; or
(b) the Discounted Present Value of Borrowing Base Properties
sold, transferred, leased, contributed or otherwise conveyed by the
Borrower to any Subsidiary shall exceed, in any one transaction or in
the aggregate since the last redetermination of the Borrowing Base, ten
percent (10%) of the Discounted Present Value of all Borrowing Base
Properties without first obtaining the consent of the Required Lenders,
which consent shall not be unreasonably withheld, and shall not require
the payment of a fee or other compensation by the Borrower.
Any redetermination of the Borrowing Base pursuant to this Section 8.8
shall be a Non-Standard Determination."
(k) Subsection 8.9(a) of the Credit Agreement is amended hereby by
replacing "July 2, 2002" with "July 2, 2003".
3. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders and the Agents 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:
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.
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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 7.11 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.
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. COVENANT.
The Borrower agrees that, at the request of the Agent, Borrower will
enter into a restated Credit Agreement with the Agents and the Lenders in
substantially the form of the Credit Agreement as amended by this Amendment.
5. 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.
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6. 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.
7. MISCELLANEOUS.
7.1 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.
7.2 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.
7.3 Effectiveness. This Amendment shall become effective when (i)
counterparts hereof executed on behalf of the Borrower and each Lender (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 Borrower and
each Lender.
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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/ JOHN W. ELSENHANS
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Name: John W. Elsenhans
Title: Vice President and Chief
Financial Officer
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BANK OF MONTREAL, acting through its U.S.
branches and agencies, including initially
its Chicago Illinois branch, as Agent
By: /s/ SARA J. TEASDALE
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Name: Sara J. Teasdale
Title: Director
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PARIBAS, formerly known as Banque Paribas,
as Documentation Agent
By: /s/ DOUGLAS R. LIFTMAN
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Name: Douglas R. Liftman
Title: Director
By: /s/ MARIAN LIVINGSTON
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Name: MARIAN LIVINGSTON
Title: VICE PRESIDENT
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BANK OF MONTREAL, as a Lender
By: /s/ MELISSA BAUMAN
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Name: Melissa Bauman
Title: Director
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PARIBAS, formerly known as Banque Paribas,
as a Lender
By: /s/ MARIAN LIVINGSTON
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Name: MARIAN LIVINGSTON
Title: VICE PRESIDENT
By: /s/ BETSY JOCHER
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Name: BETSY R. JOCHER
Title: ASSISTANT VICE PRESIDENT
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BANKBOSTON, N.A., as a Lender
By: /s/ TERRENCE RONAN
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Name: Terrence Ronan
Title: Director
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BANK OF AMERICA, N.A., formerly
NationsBank, N.A., as a Lender
By: /s/ MARY LOUISE ALLEN
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Name: Mary Louise Allen
Title: Vice President
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ABN AMRO BANK N.V., as a Lender
By: /s/ ROBERT J. CUNNINGHAM
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Name: Robert J. Cunningham
Title: Group Vice President
By: /s/ W. BRYAN CHAPMAN
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Name: W. Bryan Chapman
Title: Group Vice President
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SOCIETE GENERALE, as a Lender
By: /s/ RICHARD A. ERBERT
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Name: RICHARD A. ERBERT
Title: VICE PRESIDENT
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TORONTO DOMINION (TEXAS), INC., as a
Lender
By: /s/ CAROL BRANDT
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Name: CAROL BRANDT
Title: VICE PRESIDENT
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THE SANWA BANK LIMITED, NEW YORK
BRANCH, as a Lender
By: /s/ [ILLEGIBLE]
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Name:
Title:
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