FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
among: ENSERCH EXPLORATION, INC., a corporation formed under the laws of
the State of Texas (the "Company"); each of the Lenders (as defined in the
Credit Agreement as hereafter defined) that is a signatory hereto; THE
CHASE MANHATTAN BANK, a New York banking corporation (in its individual
capacity, "Chase"), as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Administrative Agent"); as auction agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Auction
Agent"); and as syndication agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Syndication Agent")
and Citibank, N.A. a national banking association (in its individual
capacity, "Citibank") and as documentation agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Documentation Agent") .
R E C I T A L S
A. The Company, the Agents, and the Lenders have entered into that
certain Credit Agreement dated as of May 1, 1995 (the "Credit Agreement"),
pursuant to which the Lenders have agreed to make certain loans and
extensions of credit to the Company upon the terms and conditions as
provided therein; and
B. The Company, the Agents, and the Lenders now desire to make
certain amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements
herein expressed, the parties hereto now agree as follows:
1. All capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
2. As used in the Agreement, the terms "Administrative Agent,"
"Auction Agent," "Citibank," "Documentation Agent" and Syndication Agent"
shall have the meaning indicated above.
3. The definitions of "Agents", "Debt" and "Principal Office" in
Section 1.02 of the Credit Agreement are hereby amended to read as
follows:
"Agents" shall mean the Administrative Agent, the
Auction Agent, the Documentation Agent and the
Syndication Agent.
"Debt" shall mean, for the Company or any Subsidiary
the sum of the following (without duplication): (i)
all obligations for borrowed money or evidenced by
bonds, debentures, mandatorily redeemable preferred
stock (including such stock of Affiliates) with
maturities before the Revolving Credit Termination
Date, notes or other similar instruments (excluding
interest, fees and charges); (ii) all obligations in
respect of bankers' acceptances, unreimbursed
drawings on letters of credit, surety or other
bonds; (iii) all Capital Lease Obligations; (iv) all
Operating Lease Obligations; (v) all financial
guaranties in respect of Debt of unconsolidated
Affiliates and unrelated Persons; (vi) all
obligations secured by a Lien on any asset, whether
or not such Debt is assumed, but excluding
obligations secured by Liens permitted by Sections
9.02(c), (e), (f), (h), (i), (j), (k) and (l); (vii)
all production payments in connection with oil and
gas properties; and (viii) all Debt of Special
Entities to the extent the Company or any Subsidiary
is liable for such Debt under GAAP or such Debt is
reflected on the consolidated balance sheet of the
Company or any Subsidiary. "Debt" shall not include
Permitted Subordinated Debt."
"Principal Office" shall mean ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
4. The definition "Revolving Credit Termination Date" in Section
1.02 of the Credit Agreement is hereby amended to read as follows:
"Revolving Credit Termination Date" shall mean, unless the
Commitments are sooner terminated pursuant to Sections 2.03(a)
or 10.02, August 1, 2001".
5. Section 1.02 of the Credit Agreement is hereby supplemented,
where alphabetically appropriate, with the addition of the following
definition:
"First Amendment" shall mean that certain First Amendment
to Credit Agreement dated as of September 16, 1996, among the
Company, the Lenders and the Agents."
6. Section 8.07 of the Credit Agreement is hereby amended to read
as follows:
"Section 8.07 Lease Payments. The Company, at its
option, may cause its obligations to Enserch Exploration
Holdings, Inc. to be subordinated to the Indebtedness on terms
substantially similar to the terms set forth on Exhibit M or on
terms and subject to documentation satisfactory to the
Administrative Agent.
7. Section 9.01 of the Credit Agreement is hereby amended to read
as follows:
"Section 9.01 Debt to Capital Ratio. The Company will
not permit its ratio ("Debt to Capital Ratio") expressed as a
percentage of (i) Debt of the Company and its Consolidated
Subsidiaries on a consolidated basis ("Consolidated Debt") to
(ii) the sum of Consolidated Debt plus Net Worth to exceed 60%
at any time; provided that in no event will Consolidated Debt
ever exceed $900,000,000."
8. Section 9.03 of the Credit Agreement is hereby amended by adding
the following sentence at the end of such Section:
"From and after the date that the Company ceases to be an
Affiliate of ENSERCH Corporation, neither the Company nor any
Subsidiary may make loans or advances to ENSERCH Corporation or
any of its subsidiaries, and any outstanding loans and advances
to ENSERCH Corporation and its subsidiaries from the Company and
its Subsidiaries on such date of disaffiliation shall be
immediately repaid."
9. Section 10.01(k) of the Credit Agreement is hereby amended to
read as follows:
"(k) any Change of Control shall occur. For purposes of
this Section 10.01(k), "Change of Control" shall mean other than
Enserch Corporation's ownership, the acquisition by any Person,
or two or more Persons acting in concert, of beneficial
ownership (within the meaning of the Securities Exchange Act of
1934) of 35% or more of the outstanding share of voting stock of
the Company."
10. The first two sentences of Section 11.01 of the Credit Agreement
are hereby amended to read as follows:
"Each Lender hereby irrevocably appoints and authorizes Chase as
the Administrative Agent and the Auction Agent to act as its
agents hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent
and the Auction Agent respectively by the terms of this
Agreement and the other Loan Documents, together with such
powers as reasonably incidental thereto. The Syndication Agent
and Documentation Agent, in such capacities, shall have no
duties or responsibilities and shall incur no liabilities under
the Loan Documents."
11. Attached to this Amendment is a new Annex 1 to the Credit
Agreement.
12. This Amendment shall become binding on the Lenders when, and only
when, the Administrative Agent shall have received each of the following
in form and substance satisfactory to the Administrative Agent or its
counsel:
(a) counterparts of this Amendment executed by the Company, the
Agents and the Lenders;
(b) prepayment by the Company of all outstanding Loans, accrued
interest, accrued fees and other expenses due under the Credit
Agreement to September 16, 1996, including without
limitation, payment of breakage costs under Section 5.05
of the Credit Agreement in connection with this prepayment
of the Loans within 10 days of presentation of a ▇▇▇▇ by
each Lender;
(c) refunding of the Loans prepaid in clause (b) above by the
Lenders set forth on Annex 1 attached hereto in proportion to their
respective Percentage Shares, with the Administrative Agent netting
such prepayments and fundings to the extent administratively
convenient;
(d) issuance of new Notes to the Lenders on Annex 1 attached
hereto, duly completed and executed;
(e) a certificate of the Secretary or an Assistant Secretary
of the Company setting forth resolutions of its board of directors with
respect to the authorization of the Company to execute, deliver and
perform this Amendment; and
(f) such other documents as it or its counsel may reasonably
request.
13. The parties hereto hereby acknowledge and agree that, except as
specifically supplemented and amended, changed or modified hereby, the
Credit Agreement shall remain in full force and effect in accordance with
its terms.
14. The Company hereby reaffirms that as of the date of this
Amendment, the representations and warranties contained in Article VII of
the Credit Agreement are true and correct on the date hereof as though
made on and as of the date of this Amendment, except as such
representations and warranties are expressly limited to an earlier date.
15. THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS, OTHER THAN THE CONFLICT OF LAWS
RULES THEREOF.
16. This Amendment may be executed in two or more counterparts, and
it shall not be necessary that the signatures of all parties hereto be
contained on any one counterpart hereof; each counterpart shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
17. The Lenders listed on Annex 1 attached hereto are for all
purposes Lenders under the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of September 16, 1996.
COMPANY: ENSERCH EXPLORATION, INC.
By:_____________________________
Name:
Title:
LENDER AND ADMINISTRATIVE AGENT, THE CHASE MANHATTAN BANK
SYNDICATION AGENT AND
AUCTION AGENT:
By:_____________________________
Name:
Title:
LENDER AND DOCUMENTATION CITIBANK, N.A.
AGENT:
By:_____________________________
Name:
Title:
LENDERS: THE BANK OF NOVA SCOTIA
By:_____________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By:_____________________________
Name:
Title:
ROYAL BANK OF CANADA
By:_____________________________
Name:
Title:
BANKERS TRUST COMPANY
By:_____________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By:_____________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By:_____________________________
Name:
Title:
THE BANK OF NEW YORK
By:_____________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By:_____________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:_____________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By:_____________________________
Name:
Title:
THE SANWA BANK, LIMITED
By:_____________________________
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By:_____________________________
Name:
Title:
THE FUJI BANK, LTD.
By:_____________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:_____________________________
Name:
Title:
UNION BANK OF SWITZERLAND
HOUSTON AGENCY
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
BANKS THAT WILL NO LONGER BE LENDERS AS OF SEPTEMBER 16, 1996.
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:_____________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:_____________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:_____________________________
Name:
Title:
