FIRST AMENDMENT TO
MEMORANDUM OF UNDERSTANDING
---------------------------
THIS FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING (this "Agreement") is
entered into effective this 6th day of August, 1999 (the "Effective Date"), by
and among the undersigned holders (the "Noteholders") of those certain 13.5%
Senior Secured Notes issued by Xxxxxx Petroleum Corporation ("FPC"), the
undersigned holders of the Series A Cumulative Preferred Stock (the "Preferred
Stockholders") of FPC, FPC, appearing herein through XxXxxx X. Xxxxxx
(individually, "Xxxxxx") its sole holder of all of the issued and outstanding
shares of common stock of FPC and Xxxxxx, individually.
W I T N E S S E T H:
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WHEREAS, FPC, Xxxxxx, the Noteholders, and the Preferred Stockholders are
parties to Memorandum of Understanding dated effective April 27, 1999 (the
"Memorandum");
WHEREAS, the Memorandum contemplated the filing by the Company of a
voluntary petition for relief under Chapter 11 of the United States Bankruptcy
Code after the solicitation of consents to a prepackaged plan of reorganization;
WHEREAS, the parties desire to amend the Memorandum to provide that, in
lieu of soliciting consents to a prepackaged plan of reorganization, the Company
will file a voluntary petition for relief under Chapter 11 of the United States
Bankruptcy Code and thereafter submit to the Bankruptcy Court for approval and
confirmation the Plan of Reorganization attached hereto as Exhibit A (the
"Plan"); and
WHEREAS, the parties further desire to amend the Memorandum to provide a
limited waiver by the Company of the exclusive period provided to the Company by
the Bankruptcy Code with respect to the filing by the Noteholders and the
Preferred Stockholders of the Plan, subject to the terms and conditions set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. TITLE 11 PROCEEDING. FPC agrees to file within five (5) business days
after the Effective Date a voluntary petition for relief under Chapter 11 of the
United States Bankruptcy Code (the "Bankruptcy Proceedings") in the United
States District Court in and for the Eastern District of Louisiana. The date of
the filing of the Bankruptcy Proceedings shall be hereinafter referred to as the
"Restructuring Date."
2. THE PLAN. The Company agrees to file within five (5) days after the
Restructuring Date the Plan and related documents, including without limitation,
a disclosure statement, and by the execution hereof, each of the undersigned
Noteholders and Preferred Stockholders agrees to vote for the Plan, provided it
complies in all material respects with the terms of the Plan attached to this
Agreement.
3. WAIVER OF EXCLUSIVITY PERIOD. If the Company fails to file the Plan
within fifteen (15) days after the Restructuring Date, the Company agrees that
the Noteholders and the Preferred Stockholders, acting by the vote required by
paragraph 20 of the Memorandum, may file the Plan in the Bankruptcy Proceeding.
The foregoing agreement is intended by the Company as a waiver of the Company's
exclusive right pursuant to Section 1121 of the Bankruptcy Code to file a plan
within 120 days after the order for relief in the Bankruptcy Proceedings, which
waiver is expressly limited to the filing of the Plan by the Noteholders and the
Preferred Stockholders upon satisfaction of the conditions set forth in the
first sentence of this Section 3, and is not intended to permit the filing
during the exclusive period of other plans of reorganization by the Noteholders
and the Preferred Stockholders under any circumstances.
4. AMENDMENT OF PLAN. The provisions of the Memorandum that would have
required, as part of the Plan, the formation of a new corporation to which FPC
would transfer certain assets and liabilities or economic interests, which new
corporation would then distribute securities to the Noteholders, the Preferred
Stockholders, and Xxxxxx, are deleted in their entirety. The parties agree that
all consideration to be issued to the Noteholders, the Preferred Stockholders,
and Xxxxxx pursuant to the Plan will be issued by FPC. The provisions of the
Memorandum that would have required as part of the Plan, the issuance of
warrants to XxXxxx Xxxxxx in exchange for FPC Common Stock will be replaced with
a requirement that such warrants be issued to XxXxxx Xxxxxx as part of his
management incentive package.
5. NO OTHER AMENDMENT. Except as otherwise specifically provided herein,
the Memorandum will remain in full force and effect.
6. DEFINITIONS. Capitalized terms not defined herein shall have the
meanings set forth in the Memorandum.
[REMAINDER OF PAGE IS BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth next to their signatures below, to be effective on the Effective Date.
NOTEHOLDERS:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
Notes Held: $2,500,000.00 TCW/CRESCENT MEZZANINE TRUST
Preferred Stock: 38,540 shares TCW/CRESCENT MEZZANINE INVESTMENT
PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
Its General Partner or Managing Director
By: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
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TCW SHARED OPPORTUNITY FUND II, L.P.
Notes Held: $2,500,000.00
Preferred Stock Held: 115,623 shares By: TCW Asset Management Company,
Its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST, L.P.
Notes Held: $23,250,000.00 By: TCW Advisors (Bermuda), Ltd.
As General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company,
As Investment Advisor
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
Notes Held: $1,000,000.00 XXXXX UNIVERSITY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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XXXXXXXXX & COMPANY, INC.
Notes Held: $10,500,000.00
By: /s/ Xxxxxx X. Xxxxxxx-Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx-Xxxxxx
Title: Senior Vice President
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NORTHSTAR HIGH TOTAL RETURN FUND
Notes Held: $5,000,000.00
By: /s/ Xxxxxxx Aurigamma
------------------------------------
Name: Xxxxxxx Aurigama
Title: Vice President
NORTHSTAR HIGH TOTAL RETURN FUND II
Notes Held: $2,000,000.00
By: /s/ Xxxxxxx Aurigamma
-------------------------------------
Name: Xxxxxxx Aurigama
Title: Vice President
NORTHSTAR BALANCE SHEET
OPPORTUNITIES FUND
Notes Held: $1,000,000.00
By: /s/ Xxxxxxx Aurigamma
------------------------------------
Name: Xxxxxxx Aurigama
Title: Vice President
XXXX INVESTMENT GROUP, LTD.
Notes Held: $4,970,000.00
By: /s/ Xxxxx X. XxXxxxx
------------------------------------
Name: Xxxxx X. XxXxxxx
Title: XXXX Industries
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XXXXXX:
/s/ XxXxxx X. Xxxxxx
----------------------------------------
XxXxxx X. Xxxxxx
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XXXXXX PETROLEUM CORPORATION
By: /s/ XxXxxx X. Xxxxxx
-------------------------------------
XxXxxx X. Xxxxxx
Sole Stockholder and President
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Exhibit "A"
PLAN OF REORGANIZATION
Omitted From Filing
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Exhibit "B"
FORM OF ADOPTION AGREEMENT
This Adoption Agreement (this "Adoption") is executed pursuant to the terms
of that certain Memorandum of Understanding dated as of __________, 1999, a copy
of which is attached hereto and is incorporated herein by reference (the
"Memorandum of Understanding"), by the Transferee ("Transferee") executing this
Adoption. By execution of this Adoption, the Transferee agrees as follows:
1. Acknowledgment. Transferee acknowledges that the Transferee is subject
to the terms and conditions of the Memorandum of Understanding. All defined
terms used herein are intended to have the meanings ascribed to them in the
Memorandum of Understanding.
2. Joinder. Transferee hereby joins in and agrees to be bound by the
Memorandum of Understanding with the same force and effect as if the Transferee
were originally a party thereto. Transferee agrees that the Notes or Preferred
Stock acquired by the Transferee shall be bound by and subject to the terms of
the Memorandum of Understanding pursuant to the terms thereof.
Executed and dated this the _____ day of ____________.
[TRANSFEREE]
By: ___________________________________
Name:
Title:
_______________________________________
Please Print Name Here
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