EXHIBIT 10.58
FIRST AMENDMENT
TO SECOND LIEN CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND LIEN CREDIT AGREEMENT (this "AMENDMENT")
is dated as of December 28, 2007 and is entered into by and among PACIFIC ENERGY
ALASKA OPERATING LLC, as Borrower ("BORROWER"), PACIFIC ENERGY ALASKA HOLDINGS,
LLC, as Holdings ("HOLDINGS"), CERTAIN FINANCIAL INSTITUTIONS listed on the
signature pages hereto (the "LENDERS"), SILVER POINT FINANCE, LLC, as
administrative agent (together with its permitted successor in such capacity,
"ADMINISTRATIVE AGENT"), and X. XXXX & COMPANY ("X. XXXX"), and is made with
reference to that certain SECOND LIEN CREDIT AGREEMENT, dated as of August 24,
2007 (as amended through the date hereof, the "CREDIT AGREEMENT") by and among
Borrower, Holdings, Administrative Agent and X. Xxxx, as Documentation 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, Pacific Energy Resources Ltd. has requested that the Lenders
(the "PERL LENDERS") under the Credit and Guaranty Agreement dated as of
November 30, 2006 among Pacific Energy Resources Ltd., certain subsidiaries of
Pacific Energy Resources Ltd., the PERL Lenders, X. Xxxx & Company, as Lead
Arranger and Syndication Agent and X. Xxxx & Company, as Administrative Agent
(as amended, through the date hereof, the "PERL CREDIT AGREEMENT") agree to
amend certain provisions of the PERL Credit Agreement, which amendments would
have the effect of deferring certain mandatory prepayments under the Credit
Agreement;
WHEREAS, the PERL Lenders or their Affiliates, are also Lenders under
the Credit Agreement and have required that, as a condition to consenting the
amendments and waivers requested under the PERL Credit Agreement, the Loan
Parties agree to the amendments to the Credit Agreement as provided for herein;
WHEREAS, the Pacific Energy Resources Ltd. and the Loan Parties that
are Subsidiaries of Pacific Energy Resources Ltd. are "Credit Parties" under the
PERL Credit Agreement and will benefit from the amendments to the PERL Credit
Agreement and are therefore willing to agree to the amendments set forth herein.
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 AMENDMENT TO SECTION 1.01
(a) The definition of "Maturity Date" in Section 1.01 is hereby amended
in its entirety and replaced with the following:
"MATURITY DATE" shall mean February 24, 2012.
1.2 AMENDMENT TO SECTION 2.11
(a) Section 2.11(d) is hereby amended and restated in its entirety as
follows:.
All prepayments of any Tranche B-1 Loan under this Section
2.11 shall be subject to Section 2.15 and, if any such
prepayment is made on or prior to February 24, 2010 (the
"MAKE-WHOLE EXPIRY DATE"), the Borrower shall pay to the
Agent, for the benefit of all Lenders entitled to a portion of
such prepayment, an amount equal to (x) the excess of (1) the
present value at such time of (A) the principal amount of such
Tranche B-1 Loan plus (B) all required interest payments due
on such Tranche B-1 Loan through the Make-Whole Expiry Date,
computed using a discount rate equal to the Treasury Rate plus
50 basis points, over (y) the principal amount of such Tranche
B-1 Loan. All prepayments under this Section 2.11 shall be
accompanied by accrued and unpaid interest on the principal
amount to be prepaid to but excluding the date of payment.
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 "FIRST AMENDMENT
EFFECTIVE DATE"):
A. EXECUTION. Administrative Agent shall have received a counterpart
signature page of this Amendment duly executed by each of the Loan Parties and
the Lenders.
B. FEES. The Administrative Agent shall have received all invoiced fees
and other amounts due and payable on or prior to the First 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 Borrower hereunder.
C. NECESSARY CONSENTS. Each Loan 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 First 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
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F. OTHER DOCUMENTS. Administrative Agent and Lenders shall have
received such other documents, information or agreements regarding the Loan
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 Loan 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 Loan Party, which is a 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 Loan Documents.
B. AUTHORIZATION OF AGREEMENTS. Each Loan 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 Loan Documents to which it is a
party and to authorize the consummation of the transactions contemplated thereby
and the performance of its obligations thereunder. Borrower is duly authorized
to borrow funds under the Credit Agreement.
C. NO CONFLICT. The execution and delivery by the Loan Parties of this
Amendment and the Amended Agreement and the other Loan 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 Loan Party, or (C) any agreement, judgment, license, order or
permit applicable to or binding upon any Loan Party, (ii) result in the
acceleration of any Indebtedness owed by any Loan Party, or (iii) result in or
require the creation of any Lien upon any assets or properties of any Loan Party
except as expressly contemplated in the Loan Documents. Except as expressly
contemplated in the Loan 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
Loan Party of the Amendment or to consummate any transactions contemplated by
the Amended Agreement and the other Loan 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 Loan
Party of this Amendment and the performance by Borrower of the Amended Agreement
and the other Loan 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 Loan Parties party thereto and
are legal, valid and binding obligations of each Loan 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.
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F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in ARTICLE III of the
Amended Agreement are and will be true and correct in all material respects on
and as of the First 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 (as defined in the Second Lien Guaranty and the Second
Lien Guarantee and Collateral Agreement, dated as of August 24, 2007 among the
Borrower, Holdings and the subsidiaries of the Borrower) is referred to herein
as a "CREDIT SUPPORT PARTY" and collectively as the "CREDIT SUPPORT PARTIES",
and the Loan 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
First 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.
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SECTION V. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the First 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 Loan 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 Loan 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 Loan 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 CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
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.
PACIFIC ENERGY ALASKA OPERATING LLC,
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 RESOURCES LTD,
by /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: President
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
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SILVER POINT FINANCE, LLC, as Administrative Agent
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
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SPCP Group, L.L.C., as Lender
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
8
Field Point I, Ltd., as Lender
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
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Field Point III, Ltd., as Lender
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
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SPF CDO I, Ltd., as Lender
by /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
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X. Xxxx & Co., as Lender
by /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Attorney In Fact
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