Exhibit 10.33
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
is made as of the 29th day of February, 2000, by and between Cheniere Energy,
Inc. ("Borrower") and EnCap Energy Capital Fund III, L.P. ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender have entered into a secured term loan facility
pursuant to that certain Credit Agreement dated as of September 1, 1999 (as
amended, supplemented, or restated to the date hereof, the "Original Agreement")
and that certain Mortgage, Assignment, Security Agreement, Fixture Filing and
Financing Statement dated September 1, 1999 by Borrower in favor of Lender (as
amended, supplemented, or restated to the date hereof, the "Original Mortgage");
and
WHEREAS, Section 2.1(j) of the Original Mortgage provides that Borrower
will not, without the prior written consent of Lender, elect not to participate
in a proposed operation on the Mortgaged Properties (as such term is defined in
the Original Mortgage) where the effect of such election would be the forfeiture
either temporarily or permanently of any interest in the Mortgaged Properties;
and
WHEREAS, Section 2.3 of the Original Mortgage provides that if Borrower
fails to take any action required under the Original Mortgage (including but
limited to actions required under Section 2.1(j) of the Original Mortgage),
Lender may take such action, provided that any costs or expenses incurred by
Lender in connection therewith shall be a demand obligation owing by Borrower to
Lender at the rate of fifteen percent per annum; and
WHEREAS, Borrower has been requested by IP Petroleum Company, Inc. to pay
$605,000 for the costs of recompleting the State Lease 16017 Well No. 1, which
is part of
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Lender's Collateral, and if Borrower fails to do so Borrower will be in default
of Section 2.1(j) of the Original Mortgage; and
WHEREAS, Borrower is not able to pay such amount and has requested that
Lender exercise its rights under Section 2.3 of the Original Mortgage and
advance $605,000 directly to IP Petroleum Company, Inc., but that Lender agree
to let such advance be subject to the terms of the Promissory Note attached
hereto as Exhibit A rather than bear interest at the rate of fifteen percent per
annum and be payable on demand; and
WHEREAS, Lender has agreed to make such advance on such terms in
consideration of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, 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
(S) 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.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this (S) 1.2.
"Amendment" means this Second Amendment to Credit Agreement.
"Amendment Documents" means this Amendment, the Renewal Note, and the
Security Document Amendments.
"Credit Agreement" means the Original Agreement as amended hereby.
"Original Note" means the "Note" referred to and defined as such in
the Original Agreement.
"Renewal Note" means the renewal promissory note of Borrower attached
hereto as Exhibit A, expressly renewing and increasing the Original Note.
"Security Document Amendments" means, collectively, (a) the Third
Supplement and Amendment to Mortgage, Assignment, Security Agreement,
Fixture Filing and Financing Statement by Borrower and Lender of even date
herewith, (b) the First Amendment to Guaranty by Cheniere Operating of even
date herewith, and (c) the First Amendment to Stock Pledge Agreement by
Borrower of even date herewith.
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ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
(S) 2.1. Defined Terms. The following defined term is hereby added to
Section 1.1 of the Original Agreement:
"IP" means IP Petroleum Company, Inc.
(S) 2.2. Loan. Section 2.1 of the Original Agreement is hereby amended in
its entirety to read as follows:
"Section 2.1 Loan. Subject to the terms and conditions hereof,
Lender agrees to make (a) an advance to Borrower on September 1, 1999 in
the amount of $3,100,000 (herein called the "First Loan") and (b) a payment
to IP on behalf of Borrower on February 29, 2000 in the amount of $605,000
(herein called the "Second Loan"; the First Loan and the Second Loan are
herein collectively referred to as the "Loan"). The obligation of Borrower
to repay to Lender the Loan, together with interest accruing in connection
therewith, shall be evidenced by a single promissory note (herein called
the "Note") made by Borrower payable to the order of Lender in the form of
Exhibit A with appropriate insertions. The amount of principal owing on
the Note at any given time shall be the aggregate amount of the Loan minus
all payments of principal theretofore received by Lender on the Note.
Interest on the Note shall accrue and be due and payable as provided herein
and therein. The Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Maturity Date. The
proceeds of the Second Loan shall be forwarded directly by Lender to IP
with instructions to apply the same to the payment of costs incurred by
Borrower in connection with the recompletion of the State Lease 16017 Well
No.1."
(S) 2.3. Payment of Trade Liabilities, Taxes, etc. Section 6.7(c) of the
Original Agreement is hereby amended in to read in its entirety as follows:
"(c) within ninety (90) days after the same becomes due pay all
Liabilities owed by it on ordinary trade terms to vendors, suppliers, and
other Persons providing goods and services used by it in the ordinary
course of its business (except to the extent that such Liabilities
constitute Indebtedness permitted under Section 7.1(h));"
(S) 2.4. Exhibit A. Exhibit A to the Original Agreement is hereby deleted
in its entirety and replaced with Exhibit A attached to this Amendment.
(S) 2.5. Second Loan. The proceeds of the Second Loan referenced in
Section 2.1 of the Credit Agreement shall be wired to:
Southwest Bank of Texas for the account of IP Petroleum Company, Inc.
ABA No. 00000000
Account No. 0000000
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ARTICLE III.
CONDITIONS OF EFFECTIVENESS
(S) 3.1. Effective Date. This Amendment shall become effective as of the
date first above written when and only when:
(a) Lender shall have received, at Lender's office (i) a counterpart
of this Amendment and each other Amendment Document executed and delivered
by each Restricted Person that is a party thereto in form and substance
acceptable to Lender in Lender's sole and absolute discretion, (ii) a
written opinion of Mayor, Day, Xxxxxxxx, and Xxxxxx, L.L.P., addressed to
Lender, to the effect that (A) the Amendment Documents have been duly
authorized, executed and delivered by each Restricted Person that is a
party thereto, and (B) each Amendment Document and each Loan Document
amended thereby (other than the Original Mortgage as so amended, as to
which no opinion shall be required) constitutes the legal, valid and
binding obligation of each Restricted Person that is a party thereto,
enforceable in accordance with its terms, (iii) a certificate of a duly
authorized officer of Borrower to the effect that all of the
representations and warranties set forth in (S) 4.1 hereof are true and
correct at and as of the time of such effectiveness, (iv) a certificate of
the Secretary of Borrower dated the date of this Amendment certifying that
attached thereto is a true and complete copy of resolutions adopted by the
Board of Directors of Borrower authorizing the execution, delivery and
performance of the Amendment Documents, and (v) such supporting documents
as Lender may reasonably request, and
(b) Borrower shall have paid in immediately available funds (i) an
amendment fee to Lender in the amount of $12,100 and (ii) all legal fees
and expenses owing to Xxxxxxxx & Knight L.L.P., legal counsel to Lender,
relating to the preparation, negotiation, execution, and recordation of the
Amendment Documents, which Lender estimates will not exceed $7,500 in fees,
plus recording costs and other expenses.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES; WAIVERS; MUTUAL RELEASE
(S) 4.1. Representations and Warranties of Borrower. In order to induce
Lender to enter into this Amendment, Borrower represents and warrants to Lender
that:
(a) Except as set forth in Schedule 4.1(a) attached hereto, the
representations and warranties contained in Article V of the Credit
Agreement are true and correct at and as of the time of the effectiveness
hereof. The balance of the Renewal Note is $3,621,904.62, which is the
sum of $605,000 plus the unpaid principal balance of the Original Note as
of the close of business on February 28, 2000.
(b) Each Restricted Person is duly authorized to execute and deliver
the Amendment Documents and the other Loan Documents to which it is a party
and is and will continue to be duly authorized to borrow and to perform its
obligations under the Credit Agreement. Each Restricted Person has duly
taken all corporate action necessary
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to authorize the execution and delivery of the Amendment Documents and the
other Loan Documents to which it is a party and to authorize the
performance of the obligations of such Restricted Person thereunder.
(c) The execution and delivery by each Restricted Person of the
Amendment Documents and the other Loan Documents to which it is a party,
the performance by each Restricted Person of its obligations thereunder and
the consummation of the transactions contemplated thereby do not and will
not conflict with any provision of law, statute, rule or regulation or of
the certificate of incorporation and bylaws of any Restricted Person, or of
any material agreement, judgment, license, order or permit applicable to or
binding upon any Restricted Person, or result in the creation of any Lien,
charge or encumbrance upon any assets or properties of any Restricted
Person. 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 any Restricted Person of the Amendment Documents
or the other Loan Documents to which it is a party or to consummate the
transactions contemplated thereby.
(d) When duly executed and delivered, each Amendment Document will be
a legal and binding instrument and agreement of each Restricted Person that
is a party thereto, enforceable in accordance with its terms. Each other
Loan Document is and shall continue to be the legal, valid and binding
obligation of each Restricted Person that is a party thereto, enforceable
against such Restricted Person in accordance with their respective terms.
(e) The unaudited quarterly Consolidated financial statements of
Borrower dated as of September 30, 1999 fairly present the Consolidated
financial position at such date and the Consolidated statement of
operations and the changes in Consolidated financial position for the
periods ending on such date for Borrower. Copies of such financial
statements have heretofore been delivered to Lender. Since September 30,
1999, no Material Adverse Change has occurred in the Consolidated financial
condition or businesses of Borrower.
(f) No Default or Event of Default has occurred or is continuing
(other than the Defaults or Events of Default waived in writing by Lender
or disclosed in Schedule in 4.1(a) attached hereto).
(g) Borrower has no defense, counterclaim or setoff with respect to
the Obligations or the Loan Documents (any such setoffs, defenses or
counterclaims being hereby waived and released by Borrower).
(S) 4.2. Waivers. Borrower hereby waives and affirmatively agrees not to
allege or otherwise pursue any or all defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights that it may
have to contest (a) the enforceability of any of the Obligations; (b) any
provision of the Loan Documents; (c) any Lien or security interest of Lender in
any Collateral or other property, whether movable or immovable, real or
personal, or tangible or intangible, or any right or other interest, now or
hereafter arising in connection with the Collateral; (d) the actions and
inactions of Lender prior to the date hereof in administering the Loan
Documents, or any other matter prior to the date hereof relating to the
financing
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arrangements between Borrower and Lender; or (e) the rights of Lender to the Net
Profits Interest.
(S) 4.3. Mutual Release. Each of Borrower and Lender HEREBY RELEASES,
REMISES, ACQUITS AND FOREVER DISCHARGES the other and the other's partners,
participants, predecessors, successors and assigns, subsidiary entities, parent
entities, and other affiliates, as well as all employees, agents,
representatives, consultants, attorneys, fiduciaries, partners, officers and
directors of any of the foregoing (all of the foregoing beneficiaries of such
release being hereinafter called the "Released Persons") from any and all
actions and causes of action, judgments, executions, suits, debts, claims,
demands, liabilities, obligations, damages and expenses of any and every
character, known or unknown, direct or indirect, at law or in equity, sounding
in contract or in tort, of whatsoever kind or nature, for or because of any
matter or things done, omitted or suffered to be done by any of the Released
Persons prior to the date of execution hereof and in any way directly or
indirectly arising out of or in any way connected to the Credit Agreement or any
attempt by Borrower to raise funds through the sale of equity or debt
securities, INCLUDING WITHOUT LIMITATION ANY CLAIM OR LIABILITY RELATED TO
FRAUD, INADEQUATE DISCLOSURE, NEGLIGENCE, USURY (INCLUDING WITHOUT LIMITATION
ANY DEFENSE BASED ON USURY), OR WRONGFUL INTERFERENCE WITH CONTRACTS, BUSINESS
OPPORTUNITIES OR RELATIONSHIPS (all of the foregoing hereinafter called the
"Released Matters"); PROVIDED THAT THE RELEASED MATTERS DO NOT INCLUDE OR APPLY
TO, AND THAT NO RELEASE IS GIVEN HEREBY WITH RESPECT TO, ANY PRINCIPAL,
INTEREST, OTHER INDEBTEDNESS, INDEMNITY, COVENANT, OR OTHER RIGHTS, OBLIGATIONS
OR DUTIES OF BORROWER OR LENDER UNDER THIS AMENDMENT, THE CREDIT AGREEMENT, THE
NOTE OR ANY OTHER LOAN DOCUMENT. Each of Borrower and Lender acknowledges and
agrees that the provisions of this Amendment constitute full and adequate
consideration for the foregoing releases. For the purposes of the foregoing
release by Borrower, the affiliates of Borrower shall be deemed to include,
without limitation, EnCap Energy Advisors, Inc., RP&C International, Inc., and
EnCap Investments L.C.
(S) 4.4. Acknowledgments and Admissions. Borrower hereby represents,
warrants, acknowledges and admits that (a) it has made an independent decision
to enter into the Amendment Documents and the other Loan Documents without
reliance on any representation, warranty, covenant or undertaking by Lender,
whether written, oral or implicit, other than as expressly set out in the
Amendment Documents or in the other Loan Documents, (b) there are no
representations, warranties, covenants, undertakings or agreements by Lender as
to the Loan Documents except as expressly set out in the Amendment Documents or
in another Loan Document, (c) Lender has no fiduciary obligation toward
Borrower with respect to any Loan Document or the transactions contemplated
thereby, (d) the relationship pursuant to the Loan Documents between the
Restricted Persons, on one hand, and Lender, on the other hand, is and shall be
solely that of debtor and creditor, respectively, (e) no partnership or joint
venture exists with respect to the Amendment Documents, the Loan Documents, or
the Collateral between Borrower and Lender, (f) should a breach or other default
occur or exist under the Amendment Documents, any Loan Document, or any document
or instrument at any time delivered in connection therewith, Lender will
determine in its sole discretion and for its own reasons what remedies and
actions it will or will not exercise or take at that time, (g) without limiting
any of the foregoing, Borrower is not relying upon any representation or
covenant by Lender, or any representative of Lender, and no such representation
or covenant has been made, that Lender will, at the time of any such breach or
default, or at any other time, waive, negotiate, discuss, or take or refrain
from taking any action permitted under the Loan Documents with respect thereto,
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and (h) Lender has relied upon the truthfulness of the acknowledgments in this
section in deciding to execute and deliver the Amendment Documents.
ARTICLE V.
MISCELLANEOUS
(S) 5.1. Ratification of Agreements. The Loan Documents as amended by the
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. Any reference to the Note in any other Loan Document
shall be deemed to be a reference to the Renewal Note issued and delivered
pursuant to this Amendment. The execution, delivery and effectiveness of this
Amendment and the other Amendment Documents shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy of
Lenders under the Credit Agreement, the Note, or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement, the Note or any
other Loan Document.
(S) 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 Loan, 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 any Restricted Person
hereunder or under the Credit Agreement to Lender shall be deemed to constitute
representations and warranties by, or agreements and covenants of, Borrower
under this Amendment and under the Credit Agreement.
(S) 5.3. Loan Documents. Each Amendment Document is a Loan Document, and
all provisions in the Credit Agreement pertaining to Loan Documents apply
thereto.
(S) 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and any applicable
laws of the United States of America in all respects, including construction,
validity and performance.
(S) 5.5. 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.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS 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 OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
ENCAP ENERGY CAPITAL FUND III, L.P.
By: ENCAP INVESTMENTS, L.C., general partner
By:_________________________________________
Xxxxxx X. Xxxxxx
Managing Director
CHENIERE ENERGY, INC.
By:____________________________________
Xxxxxx Xxxxx
Chairman of the Board of Directors
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CONSENT AND AGREEMENT
The undersigned hereby consents to the provisions of this Amendment and the
transactions contemplated herein, and hereby ratifies and confirms the Guaranty
dated as of September 1, 1999 made by it for the benefit of Lender, and agrees
that its obligations and covenants thereunder are unimpaired hereby and shall
remain in full force and effect.
CHENIERE ENERGY OPERATING CO., INC.
By:
Xxxxxx X. Xxxxxxxx
President
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EXHIBIT A
PROMISSORY NOTE
$3,621,904.62 Houston, Texas February 29, 2000
FOR VALUE RECEIVED, the undersigned, Cheniere Energy, Inc., a Delaware
corporation (herein called "Borrower"), hereby promises to pay to the order of
EnCap Energy Capital Fund III, L.P. (herein called "Lender"), the principal sum
of Three Million Six Hundred Twenty One Thousand Nine Hundred Four and 62/100
Dollars ($3,621,904.62), together with interest on the unpaid principal balance
thereof as hereinafter set forth, both principal and interest payable as herein
provided in lawful money of the United States of America at the offices of the
Lender under the Credit Agreement, 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, or at such other place within Xxxxxx County, Texas, as from time to time
may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit Agreement
dated as of September 1, 1999 among Borrower and Lender (herein, as from time to
time supplemented, amended or restated, called the "Credit Agreement"), and is
the "Note" as defined therein, and (b) is subject to the terms and provisions of
the Credit Agreement, which contains provisions for payments and prepayments
hereunder and acceleration of the maturity hereof upon the happening of certain
stated events. Payments on this Note shall be made and applied as provided
herein and in the Credit Agreement. Reference is hereby made to the Credit
Agreement for a description of certain rights, limitations of rights,
obligations and duties of the parties hereto and for the meanings assigned to
terms used and not defined herein.
The principal amount of this Note, together with all interest accrued
hereon, shall be due and payable in full on the Maturity Date. Additional
payments of principal are due as required under the Credit Agreement. Interest
payments on this Note are due on each Monthly Payment Date, beginning on the
date hereof.
The principal amount of this Note (exclusive of any past due principal or
interest) from time to time outstanding shall bear interest on each day
outstanding at the Base Rate in effect on such day; provided that if an Event of
Default has occurred and is continuing, the principal amount of this Note
(exclusive of any past due principal or interest) from time to time outstanding
shall bear interest on each day outstanding at the Default Rate in effect on
such day. All past due principal and interest on the Loan shall bear interest
on each day outstanding at the Default Rate in effect on such day, and such
interest shall be due and payable daily as it accrues. Notwithstanding the
foregoing provisions of this paragraph: (a) this Note shall never bear interest
in excess of the Highest Lawful Rate, and (b) if at any time the rate at which
interest is payable on this Note is limited by the Highest Lawful Rate (by the
foregoing clause (a) or by reference to the Highest Lawful Rate in the
definitions of Base Rate and Default Rate), this Note shall, to the extent
permitted by applicable law, bear interest at the Highest Lawful Rate and shall
continue to bear interest at the Highest Lawful Rate until such time as the
total amount of interest accrued hereon equals (but does not exceed) the total
amount of interest which would have accrued hereon had there been no Highest
Lawful Rate applicable hereto.
Notwithstanding the foregoing paragraph and all other provisions of this
Note or any other Loan Document, in no event shall the interest payable hereon,
together with any other
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amounts constituting interest on the Obligations, whether before or after
maturity, exceed the maximum amount of interest which, under applicable law, may
be charged on this Note and such other Obligations, and this Note is expressly
made subject to the provisions of the Credit Agreement which more fully set out
the limitations on how interest accrues hereon. In the event applicable law
provides for an interest ceiling under Chapter 303 of the Texas Finance Code
(the "Texas Finance Code") as amended, for any day, the ceiling for such day
shall be the "weekly ceiling" as defined in the Texas Finance Code and such
ceiling shall be used in this Note for calculating the Highest Lawful Rate and
for all other purposes, provided that if any applicable law permits greater
interest, the applicable law permitting the greatest interest shall apply. The
term "applicable law" as used in this Note shall mean the Laws of the State of
Texas including the Laws of the United States, as such laws now exist or may be
changed or amended or come into effect in the future.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
This Note is given in renewal and increase, but not in extinguishment or
novation, of that certain promissory note by Borrower to the order of Lender in
the original principal amount of $3,100,000 dated September 1, 1999.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW), EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY APPLICABLE FEDERAL LAW.
CHENIERE ENERGY, INC.
By:
------------------------- Xxxxxx Xxxxx
Chairman of the Board of Directors
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SCHEDULE 4.1 (a)
The representations and warranties contained in Article V of the Original
Agreement are true and correct, subject to the matters below:
Section 5.1 -- Defaults
Subject to the agreements, understandings, and waivers set forth in the
Amendment Documents and the other documents contemplated therein, no Restricted
Person is in default in the performance of any of the covenants and agreements
contained in any Loan Document and no event has occurred and is continuing which
constitutes a Default except as follows:
Sections 6.7, 6.11, 8.1(f), 8.1(g) Borrower has failed to timely pay
obligations under contracts to which it is a party, including Borrower s
obligations under the Fairfield Agreement and disputed amounts under its
agreement with RP&C International, Inc.
Section 7.3 By December 31, 1999, Borrower has not entered into
Hedging Contracts as contemplated in Section 7.3.
Section 5.12 Title to Properties
The Stingray Prospect and the Redfish Prospect are encumbered by mechanics
and materialmens liens in favor of Schlumberger Technology Corporation, as
contemplated in the First Amendment to Credit Agreement, dated as of
December 31, 1999, between Borrower and Lender, and the Amendment
Documents, as such term is defined therein.
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