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EXHIBIT 4.3.3
FIRST AMENDMENT TO AMENDED
AND RESTATED INTERCREDITOR AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
(herein called this "Amendment") made as of the ____ day of March, 1999 by and
among Inland Production Company, a Texas corporation, (herein called
"Borrower"), Inland Resources Inc., a Washington corporation (herein called
"Parent"), and ING (U.S.) Capital LLC (successor to ING (U.S.) Capital
Corporation), as Agent (herein called "Agent Lender"), the Banks signatory
hereto, TCW Asset Management Company ("Tamco"), as Agent (herein called "Agent
Noteholder"), and Trust Company of the West ("Trustco") on behalf of the
Noteholders named below.
W I T N E S S E T H:
WHEREAS, Borrower, Parent, Agent Lender, the Banks, Agent Noteholder
and Noteholders have entered into that certain Amended and Restated
Intercreditor Agreement dated as of September 11, 1998 (the "Amended
Agreement"); and
WHEREAS, the parties hereto desire to amend the Amended Agreement as
provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Agreement, the
parties hereto do hereby agree as follows:
1. Definitions. The definition of "Enforcement Action" in Section 1 of
the Amended Agreement is hereby amended to delete the word "or" immediately
preceding clause (v) thereof and adding the following immediately after clause
(v) thereof: "or (vi) the automatic acceleration of TCW Indebtedness or Bank
Indebtedness upon the occurrence of a TCW Default described in Section D.10(a),
(b) or (c) or Annex D of the TCW Agreement or a Bank Default described in
Section D.10(a), (b) or (c) of Annex D to the Bank Agreement.
2. Scheduled Bank Payments. Schedule 1 of the Amended Agreement is
hereby amended to read as Schedule 1 attached hereto.
3. Deferral of Accrued Interest. Tamco and Trustco hereby agree that
the interest on TCW Indebtedness accruing for the period beginning January 1,
1999 and ending June 29, 1999 shall be deferred and shall be due and payable,
together with interest accrued thereon at the Late Payment Rate (as defined in
the TCW Agreement), on the date that the first payment of principal due on the
TCW Indebtedness shall be payable pursuant to the TCW Agreement, as more
particularly provided in the First Amendment to the TCW Agreement.
4. Rights to Cure Defaults.
(a) Subsection 4(a) of the Amended Agreement is hereby amended
by replacing the last sentence of such Subsection 4(a) with the
following during the period
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from the effective date hereof to the later of September 30, 1999 or
the date of the cure or waiver of all defaults under the Bank Documents
or TCW Documents outstanding on September 30, 1999: "The Banks further
agree that without the consent of Agent Noteholder no Bank shall
commence or continue any Enforcement Action with respect to any Bank
Default until the earlier to occur of (i) the tenth (10th) day after
the date upon which the Agent Lender shall deliver a notice of intent
to accelerate the Bank Indebtedness (and then only if such Bank Default
remains uncured and otherwise continues to exist) and (ii) any
acceleration of the TCW Indebtedness or any enforcement by any
Noteholder of any Lien upon assets of Borrower or any Related Party in
compliance with the terms hereof."
(b) Subsection 4(b) of the Amended Agreement is hereby amended
by replacing the last sentence of such Subsection 4(b) with the
following during the period from the effective date hereof to the later
of September 30, 1999 or the date of the cure or waiver of all defaults
under the Bank Documents or TCW Documents outstanding on September 30,
1999: "The Noteholders further agree that without the consent of Agent
Lender no Noteholder shall commence or continue any Enforcement Action
with respect to any TCW Default until the earlier to occur of (i) the
tenth (10th) day after the date upon which the Agent Noteholder shall
deliver a notice of intent to accelerate the TCW Indebtedness (and then
only if such TCW Default remains uncured and otherwise continues to
exist) and (ii) any acceleration of the Bank Indebtedness or any
enforcement by any Bank of any Lien upon assets of Borrower or any
Related Party in compliance with the terms hereof."
5. Hedging Contracts. Agent Lender and the Banks hereby agree that
notwithstanding Section C.15 of Annex C of the Bank Agreement, any Related
Person may, without the consent of the Agent Lender or Banks, enter into any
forward, swap or hedging contract or agreement with respect to projected
hydrocarbon production or refined product production of any Related Person which
Agent Noteholder requests such Related Person(s) to enter into pursuant to
Subsection 5.1(g) of the TCW Agreement.
6. Counterparts. This Agreement may be separately executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
agreement.
7. Effective Date. This Agreement shall be effective concurrently with
the effective time of the First Amendment to the Bank Agreement and the First
Amendment to the TCW Agreement.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
Borrower: INLAND PRODUCTION COMPANY
By:
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Xxxx X. Xxxxxxxxxx
Chief Financial Officer
Parent: INLAND RESOURCES INC.
By:
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Xxxx X. Xxxxxxxxxx
Chief Financial Officer
Agent Noteholder: TCW ASSET MANAGEMENT COMPANY, a California
corporation, as Investment Manager under
that certain Agreement dated as of June
13, 1994, between TCW Asset Management and
Xxxxxx Xxxxxxx Group, Inc.
By:
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Xxxxxx X. Xxxxxxx
Managing Director
By:
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Xxxx XxxXxxxx
Senior Vice President
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Noteholders: TRUST COMPANY OF THE WEST, acting in its
capacity as sub-custodian for Mellon Bank
for the benefit of Account No.
CPFF873-3032
By:
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Xxxxxx X. Xxxxxxx
Managing Director
By:
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Xxxx XxxXxxxx
Senior Vice President
Agent Lender: ING (U.S.) CAPITAL LLC (successor to ING
(U.S.) Capital Corporation), in its
capacity as Agent
By:
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Xxxxxxxxxxx X. Xxxxxx
Banks: ING (U.S.) CAPITAL LLC (successor to ING
(U.S.) Capital Corporation)
By:
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Xxxxxxxxxxx X. Xxxxxx
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
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MEESPIERSON CAPITAL CORP.
By:
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Name:
Title:
By:
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Name:
Title:
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SCHEDULE 1
SCHEDULED BANK PAYMENTS
Quarterly Amount
Payment Date of Payment
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June 29, 1999 $9,472,222
Sept 29, 1999 $6,222,222
Dec 30, 1999 $6,222,222
Mar 30, 2000 $4,666,666
June 29, 2000 $4,666,666
Sept 28, 2000 $4,666,666
Dec 28, 2000 $4,666,666
Mar 29, 2001 $3,888,889
June 28, 2001 $3,888,889
Sept 27, 2001 $3,888,889
Dec 28, 2001 $3,888,889
Mar 28, 2002 $3,500,000
June 27, 2002 $3,500,000
Sept 27, 2002 $3,500,000
Dec 30, 2002 $3,500,000
Mar 28, 2003 $3,111,114
