EXHIBIT 10.1
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement dated as of August 22, 2002 (this
"Amendment") is among Newfield Exploration Company, a Delaware corporation
("Company"), the lenders parties hereto ("Banks") and JPMorgan Chase Bank
(formerly The Chase Manhattan Bank), as Agent ("Agent"). In consideration of the
mutual covenants contained herein, the Company, the Agent and the Banks agree as
set forth herein.
1. Amendments to the Agreement. The Credit Agreement dated as of
January 23, 2001 among the Company, the Banks and the Agent as amended by the
First Amendment Agreement dated as of January 31, 2001, the Second Amendment
dated as of May 1, 2001, and the Letter Agreement dated as of March 7, 2002 (as
amended, the "Agreement") is hereby amended as follows:
1.1 Section 1.02. The definition of "Debt" in Section 1.02 of
the Agreement is hereby amended by adding the following sentences to the end of
such definition:
Before the Acquisition Date and as long as the proceeds of the Subordinated Debt
Offering are held in escrow in accordance with the terms of the Subordinated
Indenture, the Senior Subordinated Notes shall not constitute Debt. The Senior
Subordinated Notes shall constitute Debt (i) on and after the Acquisition Date,
and (ii) before the Acquisition Date if the proceeds of the Subordinated Debt
Offering are not held in escrow in accordance with the terms of the Subordinated
Indenture.
Section 1.02 of the Agreement is hereby further amended by amending the
definitions of "Borrowing Base", "Calculated Borrowing Base" and "Special
Purpose Subsidiary" therein to read as follows:
"Borrowing Base" in effect from time to time, from the date of
the Third Amendment until the Acquisition Date, shall equal the excess,
if any, of (a) the Calculated Borrowing Base over (b) the aggregate
principal then outstanding on all Senior Unsecured Notes. The Borrowing
Base in effect from time to time, after the Acquisition Date, shall
equal the excess, if any, of (a) the Calculated Borrowing Base over (b)
the sum of (1) the aggregate principal then outstanding on all Senior
Unsecured Notes plus (2) the aggregate principal then outstanding on
the EGB Notes.
"Calculated Borrowing Base" shall mean at any time an amount
equal to the amount determined in accordance with Section 2.08;
provided that if any interest in the EEX Infrastructure Assets is sold
or transferred to a third party or a Special Purpose Subsidiary, the
Calculated Borrowing Base will be reduced by $30,000,000.
"Special Purpose Subsidiary" shall mean any Subsidiary (except
the EEX Subsidiary) incurring Debt for the purpose of acquisition
and/or exploration and development of Oil and Gas Properties if and
only if the Company and all other Subsidiaries are not liable, whether
directly or indirectly, contingently or otherwise, for such Debt and
designated as a "Special Purpose Subsidiary" in writing by the Company
to the Agent; provided that (i) in no event shall any Subsidiary that
owns any Oil and Gas Properties or other Property included in the
determination of the Calculated Borrowing Base be a Special Purpose
Subsidiary and (ii) at no time shall the EEX Subsidiary be a Special
Purpose Subsidiary.
Section 1.02 of the Agreement is hereby further amended by (i) deleting "price
floor," from the definition of Swap Contract in such Section and (ii) adding the
following definitions in their appropriate alphabetical order:
"Acquisition Date" shall mean the date upon which there is a
consummation of a merger upon the terms outlined in the Merger
Agreement.
"EEX" shall mean EEX Corporation, a Texas corporation.
"EEX Infrastructure Assets" shall mean the 60% interest in a
deepwater drilling rig and processing facility, which consists of an
FPS, pipelines, and a processing facility owned by EEX or its
Subsidiaries. "FPS" as used in this definition means a combination
deepwater drilling rig and processing facility capable of simultaneous
drilling and production operations.
"EEX Subsidiary" shall mean the subsidiary of the Company
formed on the Acquisition Date, which subsidiary shall succeed to all
of the assets of EEX, as a result of the consummation of a merger upon
the terms outlined in the Merger Agreement.
"EGB Notes" shall mean those certain secured senior equipment
leasing notes issued by EEX in the principal amount outstanding as of
July 17, 2002 of approximately $101,000,000 and all obligations
relating thereto.
"Merger Agreement" shall mean that certain Amended and
Restated Agreement and Plan of Merger dated as of May 29, 2002 between
the Company, Newfield Operating Company and EEX as the same may be
amended from time to time.
"Senior Subordinated Notes" shall mean those certain 8 3/8%
Senior Subordinated Notes due 2012 in an aggregate amount of
$250,000,000 issued or to be issued under the Subordinated Indenture by
the Company with covenants and default provisions no more restrictive
than this Agreement and all obligations relating thereto.
"Subordinated Indenture" shall mean that certain indenture
dated as of December 10, 2001 between the Company and Wachovia Bank,
National Association (formerly known as First Union National Bank), as
Trustee, as supplemented by the First Supplemental Indenture dated as
of August 13, 2002.
"Subordinated Note Offering" means the offering of the Senior
Subordinated Notes by the Company, the proceeds of which will be used
to finance the merger outlined in the Merger Agreement.
2
"Third Amendment" shall mean the Third Amendment Agreement
dated as of August 22, 2002, among the Company, various Banks and the
Agent pertaining to this Agreement.
1.2 Section 2.08. Section 2.08 of the Agreement is hereby
amended by adding the following language to the end of the second sentence in
clause (b) of such Section before the period at the end of such sentence:
(including, without limitation, consideration of and adjustment for interest
rates and Debt existing at that particular time)
Section 2.08 of the Agreement is hereby further amended by adding the following
new clause (f) after clause (e) of Section 2.08:
(f) From the date of Third Amendment to the earlier of (i) the
Acquisition Date or (ii) the first Redetermination Date after August
22, 2002 (the "November 2002 Redetermination Date"), the amount of the
Calculated Borrowing Base shall be $525,000,000. Provided that the
Acquisition Date occurs prior to the November 2002 Redetermination, the
Calculated Borrowing Base shall be $660,000,000 from the Acquisition
Date to the November 2002 Redetermination Date. In the event that the
Acquisition Date has not occurred by the November 2002 Redetermination
Date, but does occur subsequent to such date, a Calculated Borrowing
Base will be determined in accordance with Section 2.08(b) and Section
2.08(d) based upon the Engineering Reports and other information
provided to Agent (including information regarding Properties of EEX)
with respect to the November 2002 Redetermination Date.
1.3 Section 9.01. Section 9.01 of the Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (l) of such Section,
(ii) deleting the period at the end of clause (m) of such Section and adding the
phrase "; and" at the end of such clause, and (iii) adding the following clause
(n) after clause (m) of such Section:
(n) the EGB Notes.
1.4 Section 9.02. Section 9.02 of the Agreement is hereby
amended by (i) deleting the word "and" at the end of clause (d) of such Section
and (ii) adding the following clauses (f) and (g) after clause (e) of such
Section:
(f) Liens on the EEX Infrastructure Assets securing the EGB
Notes; and
(g) Liens arising as a result of the escrow of the proceeds of
the Subordinated Note Offering pursuant to the Subordinated Indenture
until the earlier to occur of (i) the Acquisition Date or (ii) the date
the Senior Subordinated Notes are redeemed or repaid.
3
1.5 Section 9.03. Clause (j) of Section 9.03 of the Agreement
is hereby amended by inserting the following parenthetical after the amount
"$40,000,000" in such Section:
(to the extent that such investments are made solely by the issuance of
common stock of the Company, the amount of such investment for purposes
of this clause (j) shall be deemed to be zero)
1.6 Section 9.15. Section 9.15 of the Agreement is hereby
amended by inserting the parenthetical "(other than EEX Infrastructure Assets)"
after the reference to "Oil and Gas Properties" in such Section.
1.7 New Schedule 7.14. Upon the Acquisition Date, the Company
will deliver to the Agent and the Banks a new Schedule 7.14, which will list (i)
the EEX Subsidiary, (ii) Newfield Petroleum UK Limited, (iii) Newfield UK
Holdings Limited and (iv) Newfield North Sea Limited as "Active Subsidiaries" of
the Company. Upon receipt of such schedule by the Agent and the Banks, such new
Schedule 7.14 will replace the existing Schedule 7.14 of the Agreement in its
entirety.
2. Miscellaneous.
2.1 Amendments, Etc. No amendment or waiver of any provision
of this Amendment, nor consent to any departure by the Company therefrom, shall
in any event be effective unless effected in accordance with Section 12.04 of
the Agreement.
2.2 Governing Law. This Amendment and the Agreement as amended
hereby shall be governed by and construed in accordance with the laws of the
State of New York.
2.3 Preservation. Except as specifically modified by the terms
of this Amendment, all of the terms, provisions, covenants, warranties and
agreements contained in the Agreement (including, without limitation, exhibits
thereto) or any of the other documents executed in connection with the Agreement
remain in full force and effect. Terms used herein which are not defined herein
and are defined in the Agreement, as amended hereby, are used herein as defined
in the Agreement, as amended hereby.
2.4 Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
2.5 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Amendment and to agree to the various
matters set forth herein. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Agreement as amended hereby.
4
2.6 Representations. The Company hereby represents and
warrants to the Agent and the Banks that the representations and warranties
contained in Section 7 of the Agreement, as amended hereby, are true and correct
on and as of the date hereof (after giving effect to the amendment to Schedule
7.14 of the Agreement for Newfield Petroleum UK Limited, Newfield UK Holdings
Limited and Newfield North Sea Limited described in Section 1.7 above), unless
such representation or warranty was expressly limited to an earlier date (which
representation or warranty remains true as to such earlier date) or except as
such representations and warranties are modified to give effect to transactions
expressly permitted by the Agreement, as amended hereby, or in the case of
Section 7.15 of the Agreement, changes of which the Agent has been notified.
2.7 Authority, etc. The Company hereby represents and warrants
to the Agent and the Banks that (i) this Amendment has been duly executed and
delivered by the Company, (ii) the execution, delivery and performance of this
Amendment and the performance of, and consummation of the transactions
contemplated by, the Agreement, as amended hereby, are within the power of the
Company, have been duly authorized by all necessary corporate action, do not
contravene (A) the charter or by-laws of the Company, (B) any applicable rule,
regulation, order, writ, injunction or decree, or (C) law or any material
contractual restriction binding on or affecting the Company, and will not result
in or require the creation or imposition of any Lien prohibited by the
Agreement, (iii) this Amendment and the Agreement, as amended hereby, constitute
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as such enforceability
may be limited by any applicable bankruptcy, reorganization, insolvency,
moratorium or similar law affecting creditors' rights generally, and (iv) no
authorization, consent, license or approval of, or other action by, and no
notice to or filing with, any governmental authority, regulatory body or other
Person is required for the due execution, delivery and performance of this
Amendment or the performance of the Agreement, as amended hereby, or for the
consummation of the transactions contemplated thereby.
2.8 Default. Without limiting any other event which may
constitute an Event of Default, in the event any representation or warranty set
forth herein shall be untrue in any material respect when made, such event shall
constitute an "Event of Default" under the Agreement, as amended hereby.
2.9 Effectiveness. This Amendment shall become effective, as
of the date first above written, when it shall have been executed by the
Company, the Agent and the Banks.
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COMPANY:
NEWFIELD EXPLORATION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
AGENT:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK (formerly The
Chase Manhattan Bank), as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANKS:
JPMORGAN CHASE BANK (formerly The
Chase Manhattan Bank)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, NATIONAL ASSOCIATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director, Capital Markets
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BNP PARIBAS
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
UFJ BANK LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MIZUHO BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President and Manager
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
BANK OF OKLAHOMA, N.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
NATEXIS BANQUES POPULAIRES
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Senior Vice President and
Regional Manager
COMERICA BANK-TEXAS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President
