FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY 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"), CREDIT
SUISSE FIRST BOSTON, as Administrative Agent, CREDIT SUISSE FIRST BOSTON, as
Auction Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation Agent,
W I T N E S S E T H
WHEREAS the Company, the Banks and the Agents are parties to a certain
364-Day Credit Agreement, dated as of November 9, 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 "Senior Leverage Ratio" appearing in Section 1.1 of
the Credit Agreement is deleted in its entirety.
(b) 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".
(c) 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,".
(d) Subsection 9.2(a)(ii) of the Credit Agreement is amended hereby in its
entirety to the following:
" (ii) [Intentionally omitted]."
e) 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".
(f) 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 ".
(g) 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".
(h) Subsection 10.2(g) of the Credit Agreement is amended hereby by
replacing "$25,000,000" with "$50,000,000".
(i) 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]."
(j) 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.
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: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President, Finance, Treasury
and Corporate Development
CREDIT SUISSE FIRST BOSTON, as a Bank and as
Administrative Agent and Auction Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
BANK OF AMERICA, N.A., as a Bank and as Syndication Agent
By:
Name:
Title:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as a
Bank and as Documentation Agent
By:
Name:
Title:
THE BANK OF NEW YORK, as a Bank
By:
Name:
Title:
THE SANWA BANK, LIMITED, as a Bank
By:
Name:
Title:
SOUTHWEST BANK OF TEXAS, N.A., as a Bank
By:
Name:
Title:
Exhibit D - Page 2
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 364-Day Credit
Agreement (the "Credit Agreement"), dated as of November 9, 1999, by and among
the Company, CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the Banks
("Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as Auction Administrative
Agent for the Banks, BANK OF AMERICA, N.A., as Syndication Agent for the Banks,
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Documentation Agent for the
Banks, 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;
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 Xxxxx 00, 0000 (xx) $__________
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:
