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EXHIBIT 10.2
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
BY AND AMONG
ATP OIL & GAS CORPORATION,
AS BORROWER,
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
AS AGENT,
AND
THE LENDERS SIGNATORY HERETO
EFFECTIVE AS OF JUNE 30, 2000
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FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "First
Amendment") executed effective as of the 30th day of June, 2000 (the "Effective
Date"), is by and among ATP OIL & GAS CORPORATION, a corporation formed under
the laws of the State of Texas (the "Borrower"); each of the lenders that is a
signatory hereto or which becomes a signatory hereto and to the hereinafter
described Credit Agreement as provided in Section 12.06 of the Credit Agreement
(individually, together with its successors and assigns, a "Lender" and,
collectively, the "Lenders"); and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a
national banking association (in its individual capacity, "Chase"), and as agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, Agent and Lenders are parties to that certain
Amended and Restated Credit Agreement dated as of September 21, 1999 (the
"Credit Agreement"), pursuant to which the Lenders agreed to make loans to and
extensions of credit on behalf of the Borrower;
WHEREAS, the Borrower, and the Lenders desire to amend the Credit Agreement
in the particulars hereinafter provided; and
WHEREAS, Bank United has joined as a Lender;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01 Terms Defined Above. As used in this First Amendment, each
of the terms "Borrower", "Credit Agreement", "Effective Date", "First
Amendment", and "Lenders" shall have the meaning assigned to such term
hereinabove.
Section 1.02 Terms Defined in Credit Agreement. Each term defined in the
Credit Agreement and used herein without definition shall have the meaning
assigned to such term in the Credit Agreement, unless expressly provided to the
contrary.
Section 1.03 Other Definitional Provisions.
(a) The words "hereby", "herein", "hereinafter", "hereof", "hereto"
and "hereunder" when used in this First Amendment shall refer to this First
Amendment as a whole and not to any particular Article, Section, subsection
or provision of this First Amendment.
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(b) Section, subsection and Exhibit references herein are to such
Sections, subsections and Exhibits to this First Amendment unless otherwise
specified.
ARTICLE II. AMENDMENTS TO CREDIT AGREEMENT
The Borrower, the Agent, and the Lenders agree that the Credit Agreement is
hereby amended, effective as of the Effective Date, in the following
particulars.
Section 2.01 Amendments and Supplements to Definitions.
(a) The following terms, which are defined in Section 1.02 of the
Credit Agreement, are hereby amended in their entirety to read as follows:
"Agreement" shall mean this Credit Agreement, as amended and
supplemented by the First Amendment and as the same may from time to time
be further amended or supplemented.
"Assignment" shall mean that certain Assignment between Chase Bank of
Texas, National Association, and Bank United, dated as of June 30, 2000.
"Monthly Date" shall mean the last day of each calendar month;
provided, however, if any such is not a Business Day, such Monthly Date
shall be the next succeeding Business Day.
(b) Section 1.02 of the Credit Agreement is hereby further amended and
supplemented by adding the following new definitions where alphabetically
appropriate, which read in their entirety as follows:
"Aquila Financing" shall mean the Borrower's Non-Recourse Debt
financing by Aquila Energy Capital Corporation dated April 9, 1999, as
supplemented on June 23, 1999 and November 3, 1999, in the approximate
amount of $91,213,300.00.
"Aquila Financing Event" shall mean the occurrence of any Oil and Gas
Property being added or subtracted as collateral security for the Aquila
Financing or any increase in the principal amount of the Aquila Financing.
"First Amendment" shall mean that certain First Amendment to Amended
and Restated Credit Agreement dated as of June 30, 2000, by and among the
Borrower, the Agent and the Lenders.
Section 2.02 Amendments to Article II.
(a) Section 2.08(a) of the Credit Agreement is hereby amended by deleting
the last sentence thereof and by adding thereto a new last sentence to read in
its entirety as follows:
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"During the period from and after June 30, 2000 until the next
redetermination pursuant to Section 2.08(d) or adjustment pursuant to
Sections 8.08(c) or 9.15, the amount of the Borrowing Base shall be
$39,000,000.";
(b) Section 2.08(d) of the Credit Agreement is hereby supplemented by the
addition of a new paragraph to be added at the end of Section 2.08(d) to read in
its entirety as follows:
"In addition, after the occurrence of any Aquila Financing Event, the
Required Lenders shall have the right to redetermine the amount of the
Borrowing Base as it relates to the Aquila Financing Event."
(c) Section 2.08(e) of the Credit Agreement is hereby supplemented by
adding to the end of the first sentence in Section 2.08(e) the following:
"by letter or by the use of the form attached hereto as Schedule 2.08."
(d) Section 2.08(f)(ii) of the Credit Agreement is hereby amended by
deleting Section 2.08(f)(ii) and substituting therefor the following:
"(ii) automatic Borrowing Base reductions on each Monthly Date by the
following amounts ("Scheduled Borrowing Base Reductions"):
(A) $2,250,000 on July, August, September and October, 2000 Monthly
Date; and
(B) $1,000,000 on the November, 2000 Monthly Date and each Monthly
Date thereafter;
provided, however, the foregoing Scheduled Borrowing Base Reductions shall
be redetermined in conjunction with each redetermination of the Borrowing
Base pursuant to this Section 2.08 and notice thereof will be given to the
Borrower in accordance with Section 2.08(e).
Section 2.03 Amendment to Article VII. Schedule 7.14 is hereby amended
by deleting Schedule 7.14 and replacing it with Schedule 7.14 attached to the
First Amendment.
Section 2.04 Amendments to Article VIII.
(a) Section 8.08(a) of the Credit Agreement is hereby supplemented in the
first sentence thereof by the addition of the following language to be added at
the end of such first sentence which reads in its entirety as follows:
"; provided, however, the Agent may designate certain lower value Oil and
Gas Properties as to which updated title information is not required."
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(b) Article VIII of the Credit Agreement is hereby supplemented by the
addition of a new Section 8.11 which reads in its entirety as follows:
"Section 8.11 Notice Regarding Aquila Financing. The Borrower shall
forthwith give the Agent written notice of the occurrence of any Aquila
Financing Event."
Section 2.05 Amendments to Article IX.
(a) Section 9.01(g) is hereby supplemented by the addition of the following
language after the words "Hedging Agreements with" in line 1 of Section 9.01(g):
"Aquila Risk Management Corporation, Ashland Chemical Company Energy
Services, Enron North America Corp. or"
(b) Section 9.15 is amended in part by the deletion of the proviso
contained at the end of Section 9.15.
Section 2.06 Amendments to Article XII.
Article XII is supplemented by the addition of a new Section 12.18 which
reads in its entirety as follows:
"Section 12.18 Release of Collateral. The release of any
collateral upon which a Lien has been granted pursuant to the Security
Instruments shall require the approval of all of the Lenders."
Section 2.07 Amendment to Annex I. Annex I to the Credit Agreement is
hereby replaced with Annex I attached hereto. Accordingly, all references in
the Credit Agreement, to Annex I shall be deemed to be references to Annex I
attached to this First Amendment.
ARTICLE III. CONDITIONS
The enforceability of this First Amendment against the Agent and the
Lenders is subject to the satisfaction of the following conditions precedent:
Section 3.01 Loan Documents. The Agent shall have received multiple
original counterparts, as requested by the Agent, of this First Amendment
executed and delivered by a duly authorized officer of the Borrower, the Agent,
and each Lender;
Section 3.02 Corporate Proceedings of Loan Parties. The Agent shall have
received multiple copies, as requested by the Agent, of the resolutions, in form
and substance reasonably satisfactory to the Agent, of the Board of Directors of
the Borrower, authorizing the execution, delivery and performance of this First
Amendment, the Notes and any other Security Instrument to which they are
respectively a party, each such copy being attached to an original certificate
of the
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Secretary or an Assistant Secretary of the Borrower, dated as of the Effective
Date, certifying (i) that the resolutions attached thereto are true, correct and
complete copies of resolutions duly adopted by written consent[s] or at a
meeting of the Board of Directors, (ii) that such resolutions constitute all
resolutions adopted with respect to the transactions contemplated hereby, (iii)
that such resolutions have not been amended, modified, revoked or rescinded as
of the Effective Date, (iv) that the [respective] articles of incorporation and
bylaws of the Borrower have not been amended or otherwise modified since the
effective date of the Credit Agreement, except pursuant to any amendments
attached thereto, and (v) as to the incumbency and signature of the officers of
the Borrower executing this First Amendment, the Notes and/or any Security
Instrument executed pursuant hereto.
Section 3.03 Representations and Warranties. Except as affected by the
transactions contemplated in the Credit Agreement and this First Amendment, each
of the representations and warranties made by the Borrower in or pursuant to the
Security Instruments, including the Credit Agreement, shall be true and correct
in all material respects as of the Effective Date, as if made on and as of such
date.
Section 3.04 No Default. No Default or Event of Default shall have
occurred and be continuing as of the Effective Date.
Section 3.05 No Change. As of the Effective Date, no event shall have
occurred since September 21, 1999, which, in the reasonable opinion of the
Lenders, could have a material adverse effect on the condition (financial or
otherwise), business, operations or prospects of the Borrower.
Section 3.06 Security Instruments. All of the Security Instruments shall
be in full force and effect and provide to the Agent the security intended
thereby to secure the Indebtedness, as amended and supplemented hereby. The
Agent shall have received all additional Security Instruments (or supplements
thereto) requested by the Agent in connection with the increase in the Borrowing
Base set forth in Section 2.08(a).
Section 3.07 Other Instruments or Documents. The Agent or any Lender or
counsel to the Agent shall receive such other instruments or documents as they
may reasonably request.
ARTICLE IV. MISCELLANEOUS
Section 4.01 Adoption, Ratification and Confirmation of Credit Agreement.
Each of the Borrower, the Agent, and the Lenders does hereby adopt, ratify and
confirm the Credit Agreement, as amended hereby, and acknowledges and agrees
that the Credit Agreement, as amended hereby, is and remains in full force and
effect.
Section 4.02 Successors and Assigns. This First Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted pursuant to the Credit Agreement.
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Section 4.03 Counterparts. This First Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts, and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument and shall be enforceable as of the Effective Date upon the execution
of one or more counterparts hereof by the Borrower, the Agent and the Lenders.
In this regard, each of the parties hereto acknowledges that a counterpart of
this First Amendment containing a set of counterpart execution pages reflecting
the execution of each party hereto shall be sufficient to reflect the execution
of this First Amendment by each necessary party hereto and shall constitute one
instrument.
Section 4.04 Number and Gender. Whenever the context requires, reference
herein made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the singular. Words
denoting sex shall be construed to include the masculine, feminine and neuter,
when such construction is appropriate; and specific enumeration shall not
exclude the general but shall be construed as cumulative. Definitions of terms
defined in the singular or plural shall be equally applicable to the plural or
singular, as the case may be, unless otherwise indicated.
Section 4.05 Entire Agreement. This First Amendment constitutes the
entire agreement among the parties hereto with respect to the subject hereof.
All prior understandings, statements and agreements, whether written or oral,
relating to the subject hereof are superseded by this First Amendment.
Section 4.06 Invalidity. In the event that any one or more of the
provisions contained in this First Amendment shall for any reason be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this First Amendment.
Section 4.07 Titles of Articles, Sections and Subsections. All titles or
headings to Articles, Sections, subsections or other divisions of this First
Amendment or the exhibits hereto, if any, are only for the convenience of the
parties and shall not be construed to have any effect or meaning with respect to
the other content of such Articles, Sections, subsections, other divisions or
exhibits, such other content being controlling as the agreement among the
parties hereto.
Section 4.08 Governing Law. This First Amendment shall be deemed to be a
contract made under and shall be governed by and construed in accordance with
the internal laws of the State of Texas.
THIS FIRST AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED HEREBY, THE NOTES,
AND THE OTHER SECURITY INSTRUMENTS 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.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the Effective Date.
BORROWER: ATP OIL & GAS CORPORATION
By:
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Name: T. Paul Bulmahn
Title: President
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LENDER AND AGENT: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By:
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Name: Robert C. Mertensotto
Title: Managing Director
Address for Notices:
Chase Bank of Texas, National Association
600 Travis, 20th Floor
Houston, Texas 77002
Telecopier No.: 713/216-4117
Telephone No.: 713/216-8869
Attention: Peter Licalzi
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LENDERS: BANK UNITED
By:
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Name: Gardner W. Cannon
Title: Senior Vice President
Address for Notices:
Bank United
3200 Southwest Freeway, Suite 2906
Houston, TX 77027
Telecopier No.: 713/543-6986
Telephone No.: 713/543-5528
Attention: David W. Phillips
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SCHEDULE 2.08
FORM OF NOTICE
BORROWING BASE
AND SCHEDULED BORROWING BASE REDUCTIONS
ATP Oil & Gas Corporation
Amended and Restated Credit Agreement
dated as of September 21,1999 ("Credit Agreement")
From and after , the Borrowing Base
shall be $ , subject to adjustments and
redeterminations pursuant to the Credit Agreement.
Scheduled Borrowing Base Reductions shall automatically occur on each
Monthly Date by the following amounts:
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AGENT:
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SCHEDULE 7.14
ATP Energy, Inc.
4600 Post Oak Place
Houston, TX 77027
ATP Oil & Gas (UK) Limited
4600 Post Oak Place
Houston, TX 77027
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ANNEX I
LIST OF MAXIMUM CREDIT AMOUNTS
MAXIMUM
CREDIT
NAME OF LENDER PERCENTAGE SHARE AMOUNT
-------------- ----------------- --------------
Chase Bank of Texas, National
Association 62.5% $25,000,000.00
Bank United 37.5% $15,000,000.00
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