Exhibit 4.1
EXECUTION COPY
AMENDMENT NO. 1
Dated as of June 9, 2006
to
AMENDED AND RESTATED
SENIOR CREDIT AGREEMENT
Dated as of February 7, 2006
THIS AMENDMENT NO. 1 ("Amendment") is made as of June 9, 2006 by and
among Quest Cherokee, LLC and Quest Resource Corporation, as borrowers (the
"Borrowers"), the financial institutions from time to time parties thereto (the
"Lenders") and Guggenheim Corporate Funding, LLC, as administrative agent (the
"Administrative Agent") under that certain Amended and Restated Credit Agreement
dated as of February 7, 2006 by and among the Borrowers, the Lenders and the
Administrative Agent (as amended, restated or otherwise modified from time to
time, the "Credit Agreement"). Defined terms used herein and not otherwise
defined herein shall have the respective meanings given to them in the Credit
Agreement.
WHEREAS, the Borrowers, the Lenders party hereto and the
Administrative Agent have agreed to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders party hereto and the Administrative Agent have agreed to
the following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 2 below, the Credit Agreement is
hereby amended as follows:
(a) Exhibit F-4 of the Credit Agreement is hereby amended by deleting
the Exhibit now contained therein and substituting therefor Exhibit F-4
attached hereto.
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definition of "Approved Counterparty" now contained therein and to
substitute the following therefor:
"Approved Counterparty" means (a) any revolving lender
party to the Senior Credit Agreement or any Affiliate of such lender
or (b) any other Person approved by the Administrative Agent whose
long term senior unsecured debt rating is A/A2 by S&P or Xxxxx'x (or
their equivalent) or higher or (c) any other Person whose
obligations under a Swap Agreement are guaranteed by a
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Person whose long term senior unsecured debt rating is A/A2 by S&P
or Xxxxx'x (or their equivalent or higher) or (d) any other Person
approved by the Administrative Agent".
(c) Section 1.01 of the Credit Agreement is hereby amended to delete
the definition of "Intercreditor Agreement" now contained therein and to
substitute the following therefor:
"'Intercreditor Agreement' means the Second Amended and
Restated Intercreditor Agreement among the Administrative Agent, the
Second Lien Term Loan Agreement administrative agent, the Third Lien
Term Loan Agreement administrative agent, the Borrowers, the
Guarantors and BP Corporation North America Inc. substantially in
the form of Exhibit F-4 or an intercreditor agreement substantially
similar entered into in connection with Permitted Refinancing Debt."
(d) Section 1.01 of the Credit Agreement is hereby further amended by
adding a new defined term as follows:
"'Third Lien Term Loan Agreement' means that certain
Third Lien Term Loan Agreement among the Borrowers, GCF as the Third
Lien Term Loan Agreement administrative agent, and the lenders party
thereto, and any "Loan Documents" (as defined therein) executed in
connection therewith, in each case as hereafter amended or
supplemented."
(e) Section 7.09 of the Credit Agreement is hereby amended by deleting
the heading and all of the language now contained therein and substituting
therefor the following:
"[Intentionally omitted]".
(f) Section 8.12(a) and (b) are hereby amended by deleting the
reference currently contained therein to "January 1" and substituting
therefor "December 31".
(g) Section 9.02(f) of the Credit Agreement is hereby amended by
adding the following immediately after the reference to "Wholly-Owned
Subsidiaries": "or the Administrative Agent on behalf of the "Lenders" and
"Swap Counterparties" (as such terms are defined in the Intercreditor
Agreement)"; and is further amended to add the following immediately to the
end thereof: "or the Intercreditor Agreement".
(h) Section 9.02 of the Credit Agreement is hereby amended to add the
following at the end of clause (h):
"and Debt under the Third Lien Term Loan Agreement and
any guarantees thereof, the principal amount of which Debt does not
exceed $75,000,000 in the aggregate."
(i) Section 9.03 of the Credit Agreement is hereby amended by adding a
new clause (j) immediately after clause (i) as follows:
"(j) Liens on Property securing the Third Lien Term Loan
Agreement permitted by Section 9.02(h), provided, however, that (i)
such Liens securing the Third Lien Term Loan Agreement and any
guarantees thereof are subordinated pursuant to the Intercreditor
Agreement, (ii) each and every Lien securing the Third Lien Term
Loan Agreement shall be subordinate to the liens securing the
Indebtedness, this Agreement and the other Loan Documents, and (iii)
no Lien shall be granted on any Property to secure the Third Lien
Term Loan Agreement unless the Lien is also being granted to secure
the Indebtedness, this Agreement and the other Loan Documents."
(j) Section 9.04(b) of the Credit Agreement is hereby amended by
deleting the reference to "the Maturity Date" now contained therein and
substutiting therefor the following: "the earlier of the Maturity Date or
the payment in full of the Indebtedness".
(k) Section 9.04 of the Credit Agreement is hereby amended by adding a
new clause (c) as follows:
"(c) Redemption of Third Lien Term Loan Agreement;
Amendment of Third Lien Term Loan Documents. The Borrowers will not,
and will not permit any Subsidiary to, prior to the date that is
ninety-one (91) days after the earlier of the Maturity Date or the
payment in full of the Indebtedness: call, make or offer to make any
optional or voluntary Redemption of or otherwise optionally or
voluntarily Redeem (whether in whole or in part) the Third Lien Term
Loan Agreement except in connection with any Permitted Financing
Debt in respect thereof."
(l) Section 9.16 of the Credit Agreement is hereby amended by
inserting immediately after the reference to "the Second Lien Term Loan
Agreement" the following: ", the Third Lien Term Loan Agreement".
2. Conditions of Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction of the conditions precedent that the
Administrative Agent shall have received (i) counterparts of this Amendment
duly executed by the Borrowers, the Lenders and the Administrative Agent
and the Reaffirmation attached hereto duly executed by the Guarantors, and
(ii) such other instruments and documents as are reasonably requested by
the Administrative Agent.
3. Representations and Warranties of the Borrowers. The Borrowers
hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement as amended hereby,
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
(b) As of the date hereof and giving effect to the terms of this
Amendment, (i)
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there exists no Default or Event of Default and (ii) the representations
and warranties of the Borrowers set forth in the Credit Agreement and each
other Loan Document shall be true and correct in all material respects as
of the date hereof (except those representations and warranties which are
limited to a specific date, which are true and correct in all material
respects as of such date and those representations and warranties already
qualified with respect to materiality, which shall be true and correct in
all respects).
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, each reference to the
Credit Agreement in the Credit Agreement or any other Loan Document shall
mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Administrative
Agent or the Lenders, nor constitute a waiver of any provision of the
Credit Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
6. Headings. Section 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.
7. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
BORROWERS: QUEST CHEROKEE, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------------
Xxxxx X. Xxxx,
Chief Executive Officer
QUEST RESOURCE CORPORATION
By: /s/ Xxxxx X. Xxxx
---------------------------------
Xxxxx X. Xxxx,
Chief Executive Officer
ADMINISTRATIVE AGENT: GUGGENHEIM CORPORATE FUNDING,
LLC, as Administrative Agent, Syndication
Agent,
Sole Lead Arranger and Sole Bookrunner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
LENDERS: XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
LENDERS: MIDLAND NATIONAL LIFE INSURANCE COMPANY
By: Midland Advisors Company as its Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
LENDERS: NORTH AMERICAN COMPANY FOR LIFE AND HEALTH
INSURANCE
By: Midland Advisors Company as its Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
LENDERS: ORPHEUS HOLDINGS LLC
By: Guggenheim Investment Management, LLC
as Manager
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
LENDERS: ORPHEUS FUNDING LLC
By: Guggenheim Investment Management, LLC
as Manager
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
LENDERS: KENNECOTT FUNDING LTD.
By: Guggenheim Investment Management, LLC
as Collateral Manager
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
LENDERS: SANDS POINT FUNDING LTD.
By: Guggenheim Investment Management, LLC
as Collateral Manager
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
REAFFIRMATION
Dated as of June 9, 2006
Reference is hereby made to the Amended and Restated Credit Agreement,
dated as of February 7, 2006 (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"), by and among
Quest Cherokee, LLC and Quest Resource Corporation as borrowers (the
"Borrowers"), the financial institutions from time to time parties thereto (the
"Lenders") and Guggenheim Corporate Funding, LLC, as administrative agent (the
"Administrative Agent"). Capitalized terms not otherwise defined herein shall
have the meaning ascribed thereto in the Credit Agreement.
Each of the undersigned reaffirms the terms and conditions of the Guaranty
and each other Loan Document executed by it and acknowledges and agrees that the
Guaranty and each other Loan Document executed by it remains in full force and
effect and is hereby ratified, reaffirmed and confirmed. Each reference to the
Credit Agreement contained in the Guaranty and each other Loan Document shall be
a reference to the Credit Agreement as the same may from time to time hereafter
be amended, modified, supplemented or restated.
*******
IN WITNESS WHEREOF, this Reaffirmation has been duly executed as of the
day and year first above written.
X-X Gas Gathering, L.L.C.
Ponderosa Gas Pipeline Company, Inc.
Producers Service Incorporated
Quest Energy Service, Inc.
Quest Oil & Gas Corporation
STP Cherokee, Inc.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
Bluestem Pipeline, LLC
By: Quest Cherokee, LLC, its sole member
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
Quest Cherokee Oilfield Service, LLC
By: Quest Cherokee, LLC, its sole member
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
