First Amendment
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First
Amendment
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to
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among
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Xxx
Energy Corporation,
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as
Borrower,
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KeyBank
National Association,
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as
Administrative Agent,
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and
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The
Lenders Signatory Hereto
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Effective
as of April 14, 2008
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First
Amendment to Credit Agreement
This
First Amendment to Credit Agreement (this “First Amendment”)
executed effective as of the 14th of April, 2008 (the “First Amendment Effective
Date”) is among Xxx Energy Corporation, a corporation formed under the
laws of the State of Delaware (the “Borrower”); KeyBank
National Association, as administrative agent for the Lenders (in such capacity,
together with its successors, the “Administrative
Agent”), and the Lenders signatory hereto.
Recitals
A. The
Borrower, the Administrative Agent and the Lenders are parties to that certain
Cred it Agreement dated as of September 28, 2007 (the “Credit Agreement”),
pursuant to which the Lenders have made certain credit available to and on
behalf of the Borrower.
B. The
Borrower has requested and the Administrative Agent and the Lenders have agreed
to amend certain provisions of the Credit Agreement.
C. NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section
1. Defined
Terms. Each capitalized term which is defined in the Credit
Agreement, but which is not defined in this First Amendment, shall have the
meaning ascribed such term in the Credit Agreement. Unless otherwise
indicated, all section references in this First Amendment refer to the Credit
Agreement.
Section
2. Amendments to Credit
Agreement.
2.1
Amendments to Section
9.18. Section 9.18 is hereby amended by deleting such Section
in its entirety and replacing it with the following:
“Section
9.18 Swap
Agreements. The Borrower will not, and will not permit any
Subsidiary to, enter into any Swap Agreements with any Person other than (a)
Swap Agreements in respect of commodities (i) with an Approved Counterparty and
(ii) the notional volumes for which (when aggregated with other commodity Swap
Agreements then in effect other than basis differential swaps on volumes already
hedged pursuant to other Swap Agreements) do not exceed, as of the date such
Swap Agreement is executed, 85% of the reasonably anticipated projected
production from Proved Developed Producing Reserves for the 36 months following
the date such Swap Agreement is entered into, and 75% thereafter, for each of
crude oil and natural gas, calculated separately, and (b) Swap Agreements in
respect of interest rates with an Approved Counterparty, as follows: (i) Swap
Agreements effectively converting interest rates from fixed to floating, the
notional amounts of which (when aggregated with all other Swap Agreements of the
Borrower and its Subsidiaries then in effect effectively converting interest
rates from fixed to floating) do not exceed 50% of the
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then
outstanding principal amount of the Borrower’s Debt for borrowed money which
bears interest at a fixed rate and (ii) Swap Agreements
effectively converting interest rates from floating to fixed, the notional
amounts of which (when aggregated with all other Swap Agreements of the Borrower
and its Subsidiaries then in effect effectively converting interest rates from
floating to fixed) do not exceed the greater of $20,000,000 and 75% of the then
outstanding principal amount of the Borrower’s Debt for borrowed money which
bears interest at a floating rate, and (iii) Swap Agreements required under
Section 6.01(q) In no event shall any Swap Agreement contain any
requirement, agreement or covenant for the Borrower or any Subsidiary to post
collateral or margin to secure their obligations under such Swap Agreement or to
cover market exposures other than collateral provided for in, and upon the terms
and conditions set forth in, this Agreement and the relevant Security
Instruments.”
2.2
Section
3.05. Section 3.05 is hereby amended by adding the following
subsection (d):
“(d) Borrowing Base Increase
Fees. The Borrower agrees to pay to the Administrative Agent,
for the account of each Lender then party to this Agreement, ratably in
accordance with its Applicable Percentage, a Borrowing Base increase fee equal
to 25 bps on the amount of any increase of the Borrowing Base over the highest
Borrowing Base previously in effect, payable on the effective date of any such
increase to the Borrowing Base.”
2.3 Annex
I. Annex I is hereby amended and restated as
follows:
Aggregate
Maximum Credit Amounts
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Name
of Lender
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Maximum
Credit Amount
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KeyBank
National Association
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$57,777,778
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BNP
Paribas
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$40,000,000
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Sovereign
Bank
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$35,555,556
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Allied
Irish Bank
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$33,333,333
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M&T
Bank
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$33,333,333
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TOTAL
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$200,000,000
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Section
3. Borrowing
Base. Pursuant to Section 2.07 of the Credit Agreement, the
Borrowing Base is hereby increased from $75,000,000 to $90,000,000, until the
next Redetermination Date.
Section
4. Conditions
Precedent. The effectiveness of this First Amendment is
subject to the receipt by the Administrative Agent of the following documents
and satisfaction of the other conditions provided in this Section 4, each
of which shall be reasonably satisfactory to the Administrative Agent in form
and substance:
4.1 First
Amendment. The Administrative Agent shall have received
multiple counterparts as requested of this First Amendment from the Borrower and
each Lender.
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4.2 Payment of Outstanding
Invoices. Payment by the Borrower to the Administrative Agent
of all fees, including the Borrowing Base increase fee pursuant to Section
3.05(d) of the Credit Agreement, and other amounts due and payable on or prior
to the First Amendment Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower.
4.3 Promissory
Notes. The Administrative Agent shall have received duly
executed Notes payable to the order of each Lender in a principal amount equal
to its Maximum Credit Amount dated as of the date hereof.
4.4 No
Default. No Default or Event of Default shall have occurred
and be continuing as of the First Amendment Effective Date.
Section
5. Representations and
Warranties; Etc. The Borrower hereby affirms: (a)
that as of the date of execution and delivery of this First Amendment, all of
the representations and warranties contained in each Loan Document to which the
Borrower is a party are true and correct in all material respects as though made
on and as of the First Amendment Effective Date (unless made as of a specific
earlier date, in which case, was true as of such date); and (b) that after
giving effect to this First Amendment and to the transactions contemplated
hereby, no Defaults exist under the Loan Documents or will exist under the Loan
Documents.
Section
6. Miscellaneous.
6.1 Confirmation. The
provisions of the Credit Agreement (as amended by this First Amendment) shall
remain in full force and effect in accordance with its terms following the
effectiveness of this First Amendment.
6.2 Ratification and Affirmation
of the Borrower. The Borrower hereby expressly (i)
acknowledges the terms of this First Amendment, (ii) ratifies and affirms its
obligations under the Credit Agreement and the other Security Instruments to
which it is a party, (iii) acknowledges, renews and extends its continued
liability under the Credit Agreement and the other Security Instruments to which
it is a party remains in full force and effect with respect to the Indebtedness
as amended hereby.
6.3 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.
6.4 No Oral
Agreement. This written First Amendment, the Credit Agreement
and the other Loan Documents executed in connection herewith and therewith
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous, or unwritten oral agreements of the
parties. There are no subsequent oral agreements between the
parties.
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6.5 Governing
Law. This First 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.
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IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly
executed effective as of the date first written above.
BORROWER: XXX ENERGY CORPORATION
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By:
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/s/ Xxxxxxxx
X. Xxxxxxx
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Name:
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Xxxxxxxx
X. Xxxxxxx
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Title:
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Chief
Executive Officer
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ADMINISTRATIVE
AGENT:
KEYBANK NATIONAL ASSOCIATION
as Administrative Agent and Lender
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By:
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/s/ Xxxxx
Xxxx
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Name:
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Xxxxx
Xxxx
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Title
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Director
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First
Amendment
Signature Page - 6
LENDERS: BNP PARIBAS
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By:
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/s/ Xxxxxxx
X. Xxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Managing
Director
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By:
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/s/ Xxxxx
Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Director
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First
Amendment
Signature Page - 7
SOVEREIGN BANK
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By:
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/s/ Xxxxxx
X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Sovereign
Bank
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First
Amendment
Signature Page - 8
ALLIED IRISH BANK
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By:
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/s/
Xxxxx X’Xxxxxxxx
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Name:
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Xxxxx
X’Xxxxxxxx
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Title:
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Assistant
Vice President
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By:
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/s/
Xxxxxx X’Xxxxxxx
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Name:
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Xxxxxx
X’Xxxxxxx
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Title:
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Vice
President
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First
Amendment
Signature Page - 9
M & T BANK
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Assistant
Vice President
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First
Amendment
Signature Page - 10
