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EXHIBIT 10.1
FIRST AMENDMENT TO
FIFTH RESTATEMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIFTH RESTATEMENT OF CREDIT
AGREEMENT (herein called this "AMENDMENT") made as of the 22nd day of June,
1998, by and among Forcenergy Inc, a Delaware corporation (formerly known as
Forcenergy Gas Exploration, Inc. and herein called "BORROWER"), ING (U.S.)
Capital Corporation, a Delaware corporation (formerly known as Internationale
Nederlanden (U.S.) Capital Corporation and herein called "AGENT"), as agent, and
the financial institutions which are signatories to this Amendment
(collectively, "LENDERS"),
RECITALS
1. Borrower, Agent and Lenders (other than General Electric Capital
Corporation) have entered into that certain Fifth Restatement of Credit
Agreement dated as of April 13, 1998 (the "ORIGINAL AGREEMENT"), for the purpose
and consideration therein expressed, whereby such Lenders became obligated to
make loans to Borrower as therein provided.
2. Borrower desires to develop its existing oil and gas properties and
to acquire additional oil and gas properties and has requested that Lenders
increase the available credit under the Original Agreement to facilitate such
development and acquisitions.
3. In connection with such increase Borrower and Lenders desire to
amend the Original Agreement as provided herein and to redetermine the Borrowing
Base and increase the Maximum Loan Amount on the terms and conditions provided
herein.
4. Borrower, Agent and the Lenders which are parties to the Original
Agreement desire to further amend the Original Agreement to make General
Electric Capital Corporation (herein called "GECC") a lender party to the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement and in
consideration of the loans which may hereafter be made by Lenders to Borrower,
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
Section 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.
Section 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 Section 1.2.
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"AMENDMENT" shall mean this First Amendment to Fifth Restatement of
Credit Agreement.
"CREDIT AGREEMENT" shall mean the Original Agreement as amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1 DEFINED TERMS.
(a) The definition of "Applicable Margin" in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"APPLICABLE MARGIN" means from the date hereof until June 30,
1998, the per annum interest rate set forth in the table below based
upon the Debt to Capitalization Ratio of Borrower as of December 31,
1997. The Applicable Margin shall be adjusted based upon the Debt to
Capitalization Ratio as of June 30, 1998 and as of the end of each
Fiscal Quarter thereafter, any such adjustment to be made effective on
the first Business Day following receipt by Agent of a certificate of
the chief financial officer of Borrower demonstrating a change in the
Debt to Capitalization Ratio for such Fiscal Quarter to an amount such
that another Applicable Margin should be applied pursuant to the table
set forth below; PROVIDED that the Applicable Margin shall never be a
negative number. Notwithstanding the foregoing, if at any time during a
Fiscal Quarter Borrower consummates an equity offering (i) the proceeds
of which are used to repay Consolidated Debt of Borrower and (ii) the
effect of which is to change the Debt to Capitalization Ratio such that
on a pro forma basis as of the end of the immediately preceding Fiscal
Quarter another Applicable Margin would apply based upon the table set
forth below, then on the first Business Day after receipt by Agent of a
certificate from the chief financial officer of Borrower demonstrating
such fact, the Applicable Margin shall be adjusted in accordance with
the table set forth below and shall remain in effect until readjusted
based upon a change in the Debt to Capitalization Ratio at the end of a
subsequent Fiscal Quarter.
In addition to the calculation of the Debt to Capitalization Ratio at
the end of each Fiscal Quarter as required above, Borrower shall
calculate the Debt to Capitalization Ratio as of April 30, 1999 and
shall deliver to Agent a certificate of the chief financial officer
certifying as to such calculation no later than May 15, 1999. If at
April 30, 1999 the Debt to Capitalization Ratio of Borrower is greater
than 65%, then the Applicable Margin shall be increased by the amount
of the Quarterly Step-Up Margin as set forth in the table below. The
Applicable Margin as so increased shall thereafter be further increased
by the amount of the Quarterly Step-Up Margin as of the end of each
subsequent Fiscal Quarter in which the Debt to Capitalization Ratio is
greater than 65%. If at the end of a Fiscal Quarter the
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Debt to Capitalization Ratio is 65% or less, the Applicable Margin will
not be increased by the Quarterly Step-Up Margin for the next
successive Fiscal Quarter.
------------------------------------------------------------------------
Debt to Capitalization Ratio Applicable Margin Quarterly Step-Up
Margin
------------------------------------------------------------------------
Greater than 80% 2.000% 0.250%
------------------------------------------------------------------------
Greater than 75% but 1.625% 0.250%
less than or equal to 80%
------------------------------------------------------------------------
Greater than 70% but 1.250% 0.125%
less than or equal to 75%
------------------------------------------------------------------------
Greater than 60% but 1.125% 0.125%
less than or equal to 70%
------------------------------------------------------------------------
Greater than 50% but 1.000% not applicable
less than or equal to 60%
------------------------------------------------------------------------
Less than or equal to 50% 0.750% not applicable
------------------------------------------------------------------------
(b) The definition of "Lenders" in Section 1.1 of the Original
Agreement is hereby amended in its entirety to read as follows:
"LENDERS" means each signatory hereto other than Borrower,
including ING, in its capacity as a lender hereunder rather than as
Agent, and each signatory to any amendment hereto (other than Borrower)
which expressly adds, substitutes or replaces any Lender hereunder, and
the successors of each as holder of a Note.
(c) The definition of "Maximum Loan Amount" in Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"MAXIMUM LOAN AMOUNT" has the following meaning:
(a) From June 22, 1998 until and including April 30,
1999, the Maximum Loan Amount means the amount of
$320,000,000.
(b) From May 1, 1999 until and including August 31,
1999, the Maximum Loan Amount means the amount of
$300,000,000.
(c) From and after September 1, 1999, the Maximum
Loan Amount means the amount of $275,000,000.
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Section 2.2 MANDATORY PREPAYMENTS. Section 2.9 of the Original
Agreement is hereby amended in its entirety to read as follows:
Section 2.9. MANDATORY PREPAYMENTS. If the aggregate unpaid
principal balance of the Loans, together with all outstanding LC
Obligations, ever exceed the Maximum Loan Amount, Borrower shall
immediately prepay the principal of the Loans in an amount at least
equal to such excess. If the aggregate unpaid principal balance of the
Loans, together with all outstanding LC Obligations, ever exceed the
Borrowing Base, Borrower shall, within forty-five (45) days after Agent
gives notice of such fact to Borrower, either (i) prepay the principal
of the Loans in an amount at least equal to such excess or (ii) grant a
first priority Lien in favor of Agent on its additional oil and gas
properties or other assets acceptable to Majority Lenders with a
collateral value satisfactory to Majority Lenders in their sole
discretion. Each prepayment of principal under this section shall be
accompanied by all interest then accrued and unpaid on the principal
amount so prepaid. Any principal or interest prepaid pursuant to this
section shall be in addition to, and not in lieu of, all payments
otherwise required to be paid under the Loan Documents at the time of
such prepayment. In the event Borrower fails to make such prepayment or
provide additional Collateral acceptable to Majority Lenders within as
provided above, such failure shall constitute an Event of Default
hereunder without any further notice to Borrower or the availability of
any additional Grace Period.
Section 2.3 DELIVERY OF SECURITY DOCUMENTS. Section 5.1 of the Original
Agreement is hereby amended by adding the following paragraph (p) immediately
after paragraph (o) where it appears at the end of such Section:
(p) SECURITY DOCUMENTS. On or before August 31, 1998 Borrower
shall have delivered to Agent Security Documents securing the
Obligations and covering those oil and gas properties of Borrower
identified by Agent that are not currently Qualified Properties and
that, when taken together with the Qualified Properties, represent not
less than eighty percent (80%) of the reserve value of all proved
reserves of Borrower. Such Security Documents shall be in form and
substance satisfactory to Agent and its counsel, duly executed and
properly acknowledged, and shall create in favor of Agent for the
benefit of Lenders first deed of trust or mortgage liens in such
properties and first priority assignments of and security interests in
the oil and gas attributable to such properties and interests and the
proceeds thereof, free and clear of all Prohibited Liens. In addition,
Borrower shall provide title opinions in form, substance and authorship
satisfactory to Agent concerning those properties that constitute a
requisite percentage of the reserve value of all such properties as
shall be agreed to by Borrower and Agent. In the event Borrower fails
to comply with this Section 5.1(p) within the time period set forth
above, such failure shall constitute an Event of Default without any
notice or opportunity to cure such Event of Default.
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Section 2.4 DEBT TO CAPITALIZATION RATIO. Section 5.2 of the Original
Agreement is hereby amended by adding the following paragraph (o) immediately
after paragraph (n) where it appears at the end of such Section:
(o) DEBT TO CAPITALIZATION RATIO. Borrower's Debt to
Capitalization Ratio will never be greater than 85%.
Section 2.5 PERCENTAGE SHARES. The "Percentage Share" and the "Share of
Maximum Loan Amount" of each Lender on the signature pages of the Original
Agreement are hereby amended in their entirety to read as set forth on the
signature pages to this Amendment.
ARTICLE III.
REDETERMINATION OF BORROWING BASE
Section 3.1 BORROWING BASE REDETERMINATION. Contemporaneously with the
execution and delivery of this Amendment by the parties hereto, the Borrowing
Base is hereby increased to $320,000,000, such redetermination to remain in
effect until the next Determination Date.
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS
Section 4.1 EFFECTIVE DATE. This Amendment shall become effective as of
the date first above written when, and only when:
(a) DELIVERY OF THIS AMENDMENT. Agent shall have received, at Agent's
office, a counterpart of this Amendment executed and delivered by Borrower, and
Majority Lenders shall have executed and delivered a counterpart of this
Amendment to Agent.
(b) UP-FRONT FEES.
(i) Lenders and Agent shall have received payment in full from
Borrower in immediately available funds of the up-front fees described
in the letter of even date herewith between Borrower and Agent.
(ii) Agent shall have received payment in full from Borrower
in immediately available funds of an arrangement fee separately agreed
to by Borrower pursuant to a fee letter agreement of even date
herewith.
(c) RENEWAL NOTES. Borrower shall have issued and delivered to each
Lender that is increasing it Percentage Share of the Maximum Loan Amount a
Renewal Promissory Note (or an original Promissory Note in the case of GECC)
with appropriate insertions, substantially in the form
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attached hereto as Exhibit A, payable to the order of each such Lender on or
before March 31, 2002 (such Notes herein collectively called the "RENEWAL
NOTES"), duly executed on behalf of Borrower, and dated the date hereof.
(d) OTHER DOCUMENTS. Agent shall have additionally received (i) 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 this Amendment and each Renewal Note and certifying
the names and true signatures of the officers of Borrower authorized to sign
this Amendment and each Renewal Note and (ii) such supporting documents as Agent
may reasonably request.
(e) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 4.1 of the Original Agreement shall be true and correct in
all material respects.
ARTICLE V.
ADDITIONAL LENDER
Section 5.1. GECC AS ADDITIONAL LENDER. Borrower and each Lender under
the Original Agreement hereby acknowledge and agree that upon satisfaction of
the conditions set forth in Section 4.1 hereof GECC shall be deemed to be a
Lender under the Credit Agreement for all purposes and shall be entitled to all
of the rights and benefits of a Lender under the Loan Documents as if GECC had
been a signatory to the Original Agreement. GECC hereby acknowledges and agrees
that upon satisfaction of the conditions set forth in Section 4.1 hereof GECC
shall be deemed to be a Lender under the Credit Agreement for all purposes and
shall have all of the duties and obligations of a Lender under the Loan
Documents as if GECC had been a signatory to the Original Agreement. Any
reference to "Lender" in any Loan Document shall be deemed to be a reference to
GECC as well as to the other Lenders which are parties to the Original
Agreement.
Section 5.2. PERCENTAGE SHARE OF GECC. The "Percentage Share" and the
"Share of Maximum Loan Amount" of GECC under the Credit Agreement shall be as
specified opposite GECC's name on the signature pages to this Amendment.
Section 5.3. NOTICES. All notices and communications to GECC shall be
made in accordance with Section 9.5 of the Credit Agreement at the address of
GECC specified opposite its name on the signature pages to this Amendment.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Section 6.1 REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Lenders to enter into this Amendment, Borrower represents and warrants to
Agent for the benefit of each Lender that:
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(a) The representations and warranties contained in Section
4.1 of the Original Agreement are true and correct in all material
respects at and as of the time of the effectiveness hereof.
(b) Borrower is duly authorized to execute and deliver this
Amendment and the Renewal Notes and is and will continue to be duly
authorized to borrow monies and to perform its obligations under the
Credit Agreement. Borrower has duly taken all corporate action
necessary to authorize the execution and delivery of this Amendment and
to issue the Renewal Notes.
(c) The execution and delivery by Borrower of this Amendment
and the performance by Borrower of its obligations hereunder and the
issuance of the Renewal Notes by Borrower do not and will not conflict
with any provision of law, statute, rule or regulation or of the
certificate of incorporation and bylaws of Borrower, or of any material
agreement, judgment, license, order or permit applicable to or binding
upon Borrower, or result in the creation of any lien, charge or
encumbrance upon any assets or properties of Borrower. Except for those
which have been obtained, 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 Borrower of this
Amendment or the issuance of the Renewal Notes.
(d) When duly executed and delivered, each of this Amendment,
the Credit Agreement and the Renewal Notes will be a legal and binding
obligation of Borrower, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by
equitable principles of general application.
(e) The audited Consolidated financial statements of Borrower
dated as of December 31, 1997 and the unaudited financial statements of
Borrower dated as of March 31, 1998 fairly present the Consolidated
financial position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for the
periods ending on such dates for Borrower. Copies of such financial
statements have heretofore been delivered to each Lender. Since March
31, 1998, no material adverse change has occurred in the financial
condition or businesses of Borrower except for changes in oil and gas
prices that affect the industry in which Borrower operates.
(f) Borrower will use the proceeds from Advances made under
the increased Borrowing Base (i) to acquire and develop oil and gas
properties, (ii) to purchase additional working interests in Australian
coalbed methane properties, (iii) to purchase overriding royalty
interests on Redoubt Shoal and (iv) to carry out its oil and gas
operations consistent with past practice.
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ARTICLE VII.
MISCELLANEOUS
Section 7.1 RATIFICATION OF AGREEMENTS. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects and shall remain
in full force and effect. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Agreement as hereby
amended. Any reference to the Notes in any other Loan Document shall be deemed
to be a reference to the Renewal Notes issued and delivered pursuant to this
Amendment been delivered to each Lender. The execution, delivery and
effectiveness of this Amendment and the Renewal Notes 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 or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement or any other Loan
Document.
Section 7.2 LOAN DOCUMENTS. This Amendment and each Renewal Note is a
Loan Document, and all provisions in the Credit Agreement pertaining to Loan
Documents apply hereto and thereto.
Section 7.3 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 7.4 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.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
FORCENERGY INC (FORMERLY
KNOWN AS FORCENERGY GAS
EXPLORATION, INC.)
By: /s/ E. Xxxxxx Xxxxx
-------------------------------------
E. Xxxxxx Xxxxx, Vice President
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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ING (U.S.) CAPITAL CORPORATION (FORMERLY
KNOWN AS INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION), AGENT AND LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ X. Xxxx Xxxxx
21.87500% $70,000,000 ---------------------------------------
X. Xxxx Grant, Senior Vice President
DEN NORSKE BANK ASA, LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ Xxxxxx Xxxxxxxx
14.06250% $45,000,000 ---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ J. Xxxxxx Xxxxxx
---------------------------------------
Name: J. Xxxxxx Xxxxxx
Title: Vice President
MEESPIERSON CAPITAL CORP., LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ Xxxxx Xxxxxx
14.84375% $47,500,000 ---------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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BANK OF SCOTLAND, LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- ------------
By: /s/ Xxxxx Xxxx Tat
15.62500% $50,000,000 ---------------------------------------
Name: Xxxxx Xxxx Tat
Title: Senior Vice President
HIBERNIA NATIONAL BANK, LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ Xxxxx Xxxxxxxx
9.37500% $30,000,000 ---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION,
LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ Xxxx X. Way
10.15625% $32,500,000 ---------------------------------------
Name: Xxxx X. Way
Title: Assistant Vice President
CREDIT AGRICOLE INDOSUEZ, LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By:
6.25000% $20,000,000 ---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, LENDER
SHARE OF
PERCENTAGE MAXIMUM
SHARE LOAN AMOUNT
---------- -----------
By: /s/ T. Xxxxxx Xxxxxxx
7.81250 % $25,000,000 ---------------------------------------
Name: T. Xxxxxx Xxxxxxx
Title: Manager - Operations
Address: 000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned hereby acknowledges and consents to the
provisions of this Amendment and the transactions contemplated herein, and
hereby ratifies and confirms the Second Restated Subsidiary Guarantee dated as
of April 13, 1998 made by each of the undersigned in favor of Agent for the
benefit of Lenders, and agrees that the guaranty of the payment and performance
of the Obligations is unimpaired hereby and shall remain in full force and
effect.
FORCENERGY ONSHORE INC.
By: /s/ E. Xxxxxx Xxxxx
---------------------------------------
E. Xxxxxx Xxxxx, Vice President
FORCENERGY INTERNATIONAL INC.
By: /s/ E. Xxxxxx Xxxxx
---------------------------------------
E. Xxxxxx Xxxxx, Vice President
FORCENERGY RESOURCES INC.
By: /s/ E. Xxxxxx Xxxxx
---------------------------------------
E. Xxxxxx Xxxxx, Vice President
FORCENERGY GOM INC.
By: /s/ E. Xxxxxx Xxxxx
---------------------------------------
E. Xxxxxx Xxxxx, Vice President
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EXHIBIT A
RENEWAL PROMISSORY NOTE
$_____________ New York, New York June , 1998
FOR VALUE RECEIVED, the undersigned, Forcenergy Inc, a Delaware
corporation (formerly known as Forcenergy Gas Exploration, Inc. and herein
called "BORROWER"), hereby promises to pay to the order of
____________________________, a ______________________________ and (herein
called "Lender"), the principal sum of __________________________________ and
No/100 Dollars ($_______________), or, if greater or less, the aggregate unpaid
principal amount of the Loan made under this Note by Lender to Borrower pursuant
to the terms of the Credit Agreement (as hereinafter defined), 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 Agent under the Credit Agreement, 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 or at such other place within
New York County, New York, as from time to time may be designated by the holder
of this Note.
This Note (a) is issued and delivered under that certain Fifth
Restatement of Credit Agreement dated April 13, 1998, as amended by a First
Amendment to Fifth Restatement of Credit Agreement of even date herewith (as so
amended, the "CREDIT AGREEMENT"), among Borrower, ING (U.S.) Capital Corporation
(formerly known as Internationale Nederlanden (U.S.) Capital Corporation), as
Agent, and the lenders (including Lender) referred to therein and is a "Note" as
defined therein, (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,
and (c) is secured by and entitled to the benefits of certain Security Documents
(as identified and defined in the Credit Agreement). 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 and to the Security
Documents for a description of the nature and extent of the security thereby
provided and the rights of the parties thereto.
This Note is given in renewal and extension of, and in substitution for
(but not in extinguishment or novation of), [DESCRIBE PREVIOUS NOTES].
For the purposes of this Note, the following terms have the meanings
assigned to them below:
EXHIBIT A - PAGE 1
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"Base Rate Payment Date" means (i) the last day of each Fiscal
Quarter, beginning June 30, 1998, and (ii) any day on which past due
interest or principal is owed hereunder and is unpaid. If the terms
hereof or of the Credit Agreement provide that payments of interest or
principal hereon shall be deferred from one Base Rate Payment Date to
another day, such other day shall also be a Base Rate Payment Date.
"Fixed Rate Payment Date" means, with respect to any Fixed
Rate Portion: (i) the day on which the related Interest Period ends
(and, if such Interest Period is three months or longer, the
three-month anniversary of the first day of such Interest Period) and
(ii) any day on which past due interest or past due principal is owed
hereunder with respect to such Fixed Rate Portion and is unpaid. If the
terms hereof or of the Credit Agreement provide that payments of
interest or principal with respect to such Fixed Rate Portion shall be
deferred from one Fixed Rate Payment Date to another day, such other
day shall also be a Fixed Rate Payment Date.
The principal amount of this Note, together with all unpaid accrued
interest hereon, shall be due and payable in full on March 31, 2002.
The Base Rate Portion of the Loan (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. On each Base Rate Payment
Date Borrower shall pay to the holder hereof all unpaid interest which has
accrued on the Base Rate Portion to but not including such Base Rate Payment
Date. Each Fixed Rate Portion of the Loan (exclusive of any past due principal
or interest) shall bear interest on each day during the related Interest Period
at the related Fixed Rate in effect on such day. On each Fixed Rate Payment Date
relating to such Fixed Rate Portion Borrower shall pay to the holder hereof all
unpaid interest which has accrued on such Fixed Rate Portion to but not
including such Fixed Rate Payment Date. All past due principal of and past due
interest on the Loan shall bear interest on each day outstanding at the Late
Payment 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, Fixed Rate, and Late
Payment Rate), this Note shall 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, in no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, 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.
EXHIBIT A - PAGE 2
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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 AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY APPLICABLE
FEDERAL LAW.
FORCENERGY INC, formerly
known as Forcenergy Gas
Exploration, Inc.
By:
---------------------------------
E. Xxxxxx Xxxxx, Vice President
EXHIBIT A - PAGE 3
