EXHIBIT 10.37
THIRD AMENDMENT
TO CREDIT AND GUARANTY AGREEMENT
This THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this "Amendment") is
dated as of October 17, 2007 and is entered into by and among PACIFIC ENERGY
RESOURCES LTD., a Delaware corporation ("Company"), CERTAIN SUBSIDIARIES OF
COMPANY, as Guarantors, CERTAIN FINANCIAL INSTITUTIONS listed on the signature
pages hereto (the "Lenders"), X. XXXX & COMPANY ("X. Xxxx"), as administrative
agent (together with its permitted successor in such capacity, "Administrative
Agent"), and, for purposes of Section IV hereof, the CREDIT SUPPORT PARTIES
listed on the signature papers hereto, and is made with reference to that
certain CREDIT AND GUARANTY AGREEMENT, dated as of November 30, 2006 (as amended
through the date hereof, the "Credit Agreement"), by and among Company, the
subsidiaries of Company named therein, the lenders party thereto, and X. Xxxx,
as Lead Arranger, Syndication Agent, and Administrative Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement after giving effect to this Amendment.
RECITALS
WHEREAS, the Credit Parties have requested that Required Lenders agree to
amend certain provisions of the Credit Agreement as provided for herein; and
WHEREAS, subject to certain conditions, Required Lenders are willing to
agree to such amendment relating to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO CREDIT AGREEMENT
1.1 Amendments to Section 2.13
(a) Section 2.13(e) is hereby amended by replacing (i) the number
$50,000,000 with the number $40,000,000, (ii) the words "September 24, 2007"
with "October 19, 2007" and (iii) the number $75,000,000 with the number
$85,000,000, in each case in the first instance such numbers or words appear
therein
1.2 Amendments to Section 5.2
(a) Section 5.2(e) is hereby amended by adding the following proviso at the
end of the first sentence thereof:
"; provided that, with respect to the calendar year 2008, such
Engineering Report shall be delivered by January 31, 2008 in lieu of March 31,
2008."
1.3 Amendments to Section 5.30
(a) Section 5.30(a) is hereby amended by replacing (i) the number
$50,000,000 with the number $40,000,000 and (ii) the words "September 24, 2007"
with October 18, 2007, in each case in the first instance such words appear
therein.
(b) Section 5.30(a) is hereby further amended by adding the following
proviso at the conclusion thereof:
"provided that, proceeds of such Capital Stock in excess of
$40,000,000 that are not otherwise used to prepay Indebtedness in respect of the
PEA Second Lien Credit Agreement shall be deposited in the Collateral Account
and may used by the Company for exploration and development and for working
capital purposes as permitted under the Approved Plan of Development or the
Pacific Alaska Approved Plan of Development or as otherwise permitted in Section
2.19."
(c) Section 5.30(b) is hereby amended in its entirety and replaced with the
following:
"Between the Second Amendment Effective Date and December 31, 2007,
the Company will have received cash proceeds (net of all fees, expenses,
commissions, discounts and all other transaction costs incurred in connection
therewith) in an amount at least equal to $85,000,000 (in addition to the
proceeds required pursuant to clause (a) above) from the sale of additional
shares of its Capital Stock and on terms reasonably satisfactory to Required
Lenders in all respects. Company will use the proceeds of such Capital Stock to
prepay Indebtedness in respect of the PEA Second Lien Credit Agreement; provided
that, proceeds of such Capital Stock in excess of $85,000,000 that are not
otherwise used to prepay Indebtedness in respect of the PEA Second Lien Credit
Agreement shall be deposited in the Collateral Account and may be used by the
Company for exploration and development and for working capital purposes as
permitted under the Approved Plan of Development or the Pacific Alaska Approved
Plan of Development or as otherwise permitted in Section 2.19."
SECTION II. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the ("Third
Amendment Effective Date"):
A. Execution. Administrative Agent shall have received a counterpart
signature page of this Amendment duly executed by each of the Credit Parties and
Required Lenders.
B. Fees. The Administrative Agent and Silver Point shall have received all
invoiced fees and other amounts due and payable on or prior to the Third
Amendment Effective Date, including, to the extent invoiced, reimbursement or
other payment of all out-of-pocket expenses required to be reimbursed or paid by
Company hereunder.
C. Necessary Consents. Each Credit Party shall have obtained all material
consents necessary or advisable in connection with the transactions contemplated
by this Amendment.
D. No Default. No event shall have occurred and be continuing that would
constitute an Event of Default or a Default.
E. Accuracy of Representations and Warranties. The representations and
warranties as set forth herein shall be true and correct in all material
respects on and as of the Third Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true and correct in all material respects on and as of such earlier date
F. Other Documents. Administrative Agent and Lenders shall have received
such other documents, information or agreements regarding Credit Parties as
Administrative Agent or Collateral Agent may reasonably request.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, each Credit Party which is a
party hereto represents and warrants to each Lender executing and delivering
this Amendment that the following statements are true and correct in all
material respects:
A. Corporate Power and Authority. Each Credit Party, which is party hereto,
has all requisite power and authority to enter into this Amendment and to carry
out the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Amendment (the "Amended Agreement") and the
other Transaction Documents.
B. Authorization of Agreements. Each Credit Party has duly taken all
company action necessary to authorize the execution and delivery by it of the
Amendment, the Amended Agreement and the other Transaction Documents to which it
is a party and to authorize the consummation of the transactions contemplated
thereby and the performance of its obligations thereunder. Company is duly
authorized to borrow funds under the Credit Agreement.
C. No Conflict. The execution and delivery by the Credit Parties of this
Amendment and the Amended Agreement and the other Transaction Documents, the
performance by each of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereby and thereby do not and will
not (i) conflict with any provision of (A) any Law, (B) the Organizational
Documents of any Credit Party, or (C) any agreement, judgment, license, order or
permit applicable to or binding upon any Credit Party, (ii) result in the
acceleration of any Indebtedness owed by any Credit Party, or (iii) result in or
require the creation of any Lien upon any assets or properties of any Credit
Party except as expressly contemplated in the Transaction Documents. Except as
expressly contemplated in the Transaction Documents no consent, approval,
authorization or order of, and no notice to or filing with, any Governmental
Authority or third party is required in connection with the execution, delivery
or performance by any Credit Party of any Amendment Document or to consummate
any transactions contemplated by the Amended Agreement and the other Transaction
Documents.
D. Governmental Consents. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by each Credit Party of
this Amendment and the performance by
Company of the Amended Agreement and the other Transaction Documents, except for
such actions, consents and approvals the failure to obtain or make which could
not reasonably be expected to result in a Material Adverse Effect or which have
been obtained and are in full force and effect.
E. Binding Obligation. This Amendment and the Amended Agreement have been
duly executed and delivered by each of the Credit Parties party thereto and are
legal, valid and binding obligations of each Credit Party which is a party
hereto or thereto, enforceable in accordance with their terms except as such
enforcement may be limited by bankruptcy, insolvency or similar Laws of general
application relating to the enforcement of creditors' rights and by general
principles of equity.
F. Incorporation of Representations and Warranties from Credit Agreement.
The representations and warranties contained in Section 4 of the Amended
Agreement are and will be true and correct in all material respects on and as of
the Third Amendment Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute a Default.
SECTION IV. ACKNOWLEDGMENT AND CONSENT
Each Guarantor is referred to herein as a "Credit Support Party" and
collectively as the "Credit Support Parties", and the Transaction Documents to
which they are a party are collectively referred to herein as the "Credit
Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guarantee or secure, as the case may be, to the fullest extent
possible in accordance with the Credit Support Documents the payment and
performance of all "Obligations" under each of the Credit Support Documents to
which is a party (in each case as such terms are defined in the applicable
Credit Support Document).
Each Credit Support Party acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
Agreement and the Credit Support Documents to which it is a party or otherwise
bound are true and correct in all material respects on and as of the Third
Amendment Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true
and correct in all material respects on and as of such earlier date.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Credit
Support Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Support Document shall be deemed to require the
consent of such Credit Support Party to any future amendments to the Credit
Agreement.
SECTION V. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other
Transaction Documents.
(i) On and after the Third Amendment Effective Date, each reference in
the Credit Agreement to "this Amendment", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Transaction Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
by this Amendment.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Transaction Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or Lender under, the Credit Agreement
or any of the other Transaction Documents.
B. Headings. Section and Subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OTHER THAN
THOSE OF THE STATE OF NEW YORK.
D. 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 and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: PACIFIC ENERGY RESOURCES LTD.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
Title: PRESIDENT
CREDIT SUPPORT PARTIES: PETROCAL ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
Title: PRESIDENT
SAN XXXXX BAY PIPELINE COMPANY
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
Title: PRESIDENT
PACIFIC ENERGY ALASKA HOLDINGS LLC
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
Title: PRESIDENT
PACIFIC ENERGY ALASKA OPERATING, LLC
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: XXXXXX XXXXX
Title: PRESIDENT
LENDERS: X. XXXX & COMPANY, as Lender
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Attorney In Fact
SPF CDO I, LTD., as Lender
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
FIELD POINT I, LTD., as Lender
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
X. XXXX & COMPANY
as Administrative Agent and a Lender
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Authorized Signatory
Xxxxx Xxxxxxxxx
Attorney In Fact
