EXHIBIT 10.39
FIFTH AMENDMENT
TO CREDIT AND GUARANTY AGREEMENT
This FIFTH AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this
"AMENDMENT") is dated as of January 15, 2008 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 the words "January
15, 2008" with "January 22, 2008" in the first instance such words appear
therein.
1.2 AMENDMENTS TO SECTION 5.30
(a) Section 5.30(b) is hereby amended by replacing the words "January
15, 2008" with "January 22, 2008" in the first instance such words appear
therein.
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 ("FIFTH
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 Fifth
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 Fifth 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
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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 Fifth 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
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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
Fifth 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 Fifth 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.
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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.]
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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
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X. XXXX & COMPANY, as Administrative
Agent
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Authorized Signatory
Xxxxx Xxxxxxxxx
Attorney in Fact
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/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
FIELD POINT I, LTD., as Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
