THIRD AMENDMENT TO LOAN AGREEMENT
Exhibit 10.4(c)
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to Loan Agreement (this “Amendment”) dated as of December 21, 2006, is
made among GMX Resources Inc., an Oklahoma corporation (the “Borrower”), Capital One, National
Association, a national banking association, as administrative agent (the “Agent”), and Union Bank
of California, N.A. and Capital One, National Association, as Banks (the “Banks”), who agrees as
follows:
RECITALS
A. This Third Amendment to Loan Agreement pertains to that certain Amended and Restated Loan
Agreement (Line of Credit) dated as of June 7, 2006, among the Borrower, the Agent and the Banks,
as amended by the First Amendment dated as of August 4, 2006, and the Second Amendment dated as of
August 14, 2006 (as amended, the “Loan Agreement”). As used in this capitalized terms used herein
without definition herein shall have the meanings provided in the Loan Agreement.
B. The Borrower, the Agent and the Banks desire to evidence changes to the Borrowing Base and
related provisions of the Loan Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions contained herein, and the loans
and extensions of credit heretofore, now or hereafter made to the Borrower by the Banks, the
parties hereto hereby agree as follows:
ARTICLE 1.
AMENDMENT AND AGREEMENT
1.1 The first sentence of the definition of “Amount” in Section 1.2 of the Loan Agreement is
hereby amended to change the dollar amount from $35,000,000.00 to be fifty million ($50,000,000.00)
dollars.
1.2 As of the effective date of this Amendment, the Borrowing Base is $50,000,000.00.
1.3 As of the effective date of this Amendment, the Borrowing Base does not include a Periodic
Reduction. (The Borrower expressly acknowledges that nothing in this Amendment shall be a
precedent for future redeterminations of the Borrowing Base nor a waiver of the provisions of
Subsection 2.4(c) of the Loan Agreement.)
1.4 The Borrower shall pay to the Banks in connection with this Amendment an upfront
commitment fee of one-quarter of one percent (0.25%) on the incremental increased portion of the
new Amount and Commitment Limit, equal to $37,500.00 (being 0.25% of the incremental increase of
$15,000,000.00, payable in the portions of $22,500.00 to Capital One and $15,000.00 to UBOC).
1.5 Subsection 6.3(g) of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
The Borrower’s ownership of equity interest in Endeavor, and in
Diamond, provided that the total amount of the Borrower’s investment
(both debt and equity) in Diamond at any one time (i) shall not
exceed a maximum limit of twenty one million ($21,000,000.00)
dollars until December 31, 2007, and on and after December 31, 2007
shall not exceed a maximum limit of fifteen million ($15,000,000.00)
dollars and (ii) shall not consist of more than 50% equity.
1.6 The Banks previously granted a waiver of the Borrower’s compliance with the provisions of
Subsection 6.3(g) of the Loan Agreement during the Borrower’s fiscal quarter ended September 30,
2006, with respect to the debt owing by Diamond to the Borrower. The Borrower expressly
acknowledges that such waiver shall not be a precedent for any subsequent request for a waiver of
this or any other covenant or other provision of the Loan Agreement.
ARTICLE 2.
ACKNOWLEDGMENT OF COLLATERAL
2.1 The Borrower hereby specifically reaffirms all of the Collateral Documents. The Borrower
hereby confirms and agrees that the Collateral Documents secure the Loan Agreement as amended by
this Amendment.
ARTICLE 3.
MISCELLANEOUS
3.1 The Borrower represents and warrants to the Agent and the Banks (which representations and
warranties will survive the execution of this Amendment) that (i) all representations and
warranties contained in the Loan Agreement and the Collateral Documents are true and correct on and
as of the date hereof as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of such earlier date,
(ii) no event has occurred and is continuing as of the date hereof which constitutes a Default or
Event of Default, (iii) there has not occurred any material adverse change in the Collateral or
other assets, liabilities, financial condition, business operations, affairs or circumstances of
the Borrower and the Subsidiaries taken as a whole or any other facts, circumstances or conditions
(financial or otherwise) upon which a Bank has relied or utilized in making its decision to enter
into this Amendment, and (iv) there is no defense, offset, compensation, counterclaim or
reconventional demand with respect to amounts due under, or performance of, the terms of the Notes
and the Loan Agreement. To the extent any such defense, offset, compensation, counterclaim or
reconventional demand or other causes of action by the Borrower against the Agent or any Bank might
exist, whether known or unknown, such items are hereby waived by the Borrower.
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3.2 Except as expressly modified by this Amendment, all terms and provisions of the Loan
Agreement are hereby ratified and confirmed and shall be and shall remain in full force and effect,
enforceable in accordance with its terms.
3.3 Borrower agrees to pay on demand all costs and expenses of the Agent and the Banks in
connection with the preparation, reproduction, execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder (including the reasonable fees and
expenses of counsel for the Agent). In addition, Borrower shall pay any and all stamp or other
taxes, recordation fees and other fees payable in connection with the execution, delivery, filing
or recording of this Amendment and the other instruments and documents to be delivered hereunder
and agrees to hold Agent and the Banks harmless from and against any all liabilities with respect
to or resulting from any delay or omission in paying such taxes or fees.
3.4 This Amendment may be executed in multiple separate counterparts, and it shall not be
necessary that the signatures of all parties hereto be contained on any one counterpart hereof;
each party’s signature may appear on a separate counterpart but all such counterpart taken together
shall constitute one and the same instrument. The parties specifically confirm their intent to be
bound by delivery of such signed counterparts by telecopier.
3.5 The provisions of this Amendment shall become effective if and when, and only when, (i)
each and every representation and warranty of Borrower contained in this Amendment is true,
complete and accurate, (ii) no event exists which constitutes a Default, (iii) the payment by the
Borrower of the fee under paragraph 1.4 of this Amendment, and (iv) the receipt by the Agent of a
duly executed counterpart of this Amendment. The Borrower hereby certifies by execution of this
Amendment that the foregoing conditions (i) and (ii) are satisfied and true and correct.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of
the date first above written.
| BORROWER: | GMX RESOURCES INC. | |||||||
| By: | /s/ Xxx X. Xxxxxxxxx
|
|||||||
| Name: Xxx X. Xxxxxxxxx, Xx. | ||||||||
| Title: Executive Vice President and CFO | ||||||||
| AGENT: | CAPITAL ONE, NATIONAL ASSOCIATION | |||||||
| By: | /s/ Xxxx Xxxx
|
|||||||
| Name: Xxxx Xxxx | ||||||||
| Title: Vice President | ||||||||
| BANKS: | CAPITAL ONE, NATIONAL ASSOCIATION, | |||||||
| as a Bank | ||||||||
| By: | /s/ Xxxx Xxxx
|
|||||||
| Name: Xxxx Xxxx | ||||||||
| Title: Vice President | ||||||||
| UNION BANK OF CALIFORNIA, N.A. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx
|
|||||||
| Name: Xxxxxx Xxxxxxxxx | ||||||||
| Title: Vice President | ||||||||
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