AMENDMENT NO. 4 (Amended and Restated Credit Agreement)
AMENDMENT NO.
4
(Amended
and Restated Credit Agreement)
This Amendment No. 4 ("Agreement") dated as
of June 30, 2009 ("Effective Date") is
among Abraxas Energy Partners, L.P., a Delaware limited partnership ("Borrower"), the
lenders party to the Credit Agreement described below from time to time as
Lenders, and Société Générale, as Administrative Agent (in such capacity, the
"Administrative
Agent") and as Issuing Lender (in such capacity, the "Issuing
Lender").
RECITALS
A. The Borrower, the Lenders, the Issuing
Lender and the Administrative Agent are parties to the Amended and Restated
Credit Agreement dated as of January 31, 2008, as amended by that certain
Amendment No. 1 dated as of January 16, 2009, that certain Amendment No. 2 dated
as of April 30, 2009, and that certain Amendment No. 3 dated as of May 7, 2009
(as so amended and as the same may be further amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement";
each capitalized term defined in the Credit Agreement and used herein without
definition shall have the meaning assigned to such term in the Credit Agreement,
unless expressly provided to the contrary).
B. Contemporaneously herewith, the
Borrower, the Subordinated Agent and the Subordinated Lenders (each as defined
in the Credit Agreement) propose to make certain amendments to the Subordinated
Credit Agreement (as defined in the Credit Agreement) pursuant to that certain
Amendment No. 4 dated as of June 30, 2009 (the "Subordinated Credit
Agreement Amendment") among the Borrower, the Subordinated Agent and the
Subordinated Lenders.
C. The Borrower has proposed that it merge
with and into Abraxas Petroleum Corporation ("APC") (the "Merger"), pursuant to
a definitive merger agreement (the "Merger Agreement")
between the Borrower and APC.
D. The Borrower has requested that the
Lenders (a) consent to the Subordinated Credit Agreement Amendment and (b) make
certain amendments to the Credit Agreement as provided herein.
THEREFORE, the Borrower, the Lenders,
the Issuing Lender and the Administrative Agent hereby agree as
follows:
ARTICLE
I.
DEFINITIONS
Section
1.1 Terms
Defined Above. As used in this Agreement, each of the terms
defined in the opening paragraph and the Recitals above shall have the meanings
assigned to such terms therein.
Section
1.2 Other
Definitional Provisions.
The words "hereby", "herein", "hereinafter", "hereof", "hereto" and
"hereunder" when used in this Agreement shall refer to this Agreement as a whole
and not to any particular Article, Section, subsection or provision of
this
HOUSTON\2299132
Section
1.3 Agreement. Article,
Section, subsection and Exhibit references herein are to such Articles,
Sections, subsections and Exhibits of this Agreement unless otherwise specified.
All titles or headings to Articles, Sections, subsections or other divisions of
this Agreement or the exhibits hereto, if any, are only for the convenience of
the parties and shall not be construed to have any effect or meaning with
respect to the other content of such Articles, Sections, subsections, other
divisions or exhibits, such other content being controlling as the agreement
among the parties hereto. Whenever the context requires, reference
herein made to the single number shall be understood to include the plural; and
likewise, the plural shall be understood to include the
singular. Words denoting gender shall be construed to include the
masculine, feminine and neuter, when such construction is appropriate; and
specific enumeration shall not exclude the general but shall be construed as
cumulative. Definitions of terms defined in the singular or plural
shall be equally applicable to the plural or singular, as the case may be,
unless otherwise indicated.
ARTICLE
II.
CONSENT
Section
2.1 Consent;
Acknowledgment; Agreement. Subject to the terms of this
Agreement, the Administrative Agent and the Lenders hereby consent to the
execution and delivery of the Subordinated Credit Agreement Amendment and the
terms and conditions thereof. The consent by the Lenders and by the
Administrative Agent described in this Section 2.01 is referred to herein as the
"Consent." The Consent is contingent upon the satisfaction of the
conditions precedent described in Article VI below. Such Consent is
strictly limited to the extent described herein. Nothing contained
herein shall be construed to be a consent to or a permanent waiver of the
Sections covered by the Consent provided for herein or any other terms,
provisions, covenants, warranties or agreements contained in the Credit
Agreement or any other Loan Document. The Lenders reserve the right
to exercise any rights and remedies available to them in connection with any
other present or future defaults with respect to any provision of the Credit
Agreement or any other Loan Document. The description herein of the
Consent is based upon the information provided to the Lenders on or prior to the
date hereof, and, to the extent that material information is incorrect or
omitted with respect to any activity, event or circumstance that could result in
a Default or Event of Default, such Consent shall not be deemed to apply to such
activity, event or circumstance. The failure of the Lenders to give
notice to the Borrower of any such Defaults or Events of Default is not intended
to be nor shall be a waiver thereof. The Borrower hereby agrees and
acknowledges that the Lenders require and will require strict performance by the
Borrower of all of its obligations, agreements and covenants contained in the
Credit Agreement and the other Loan Documents pursuant to the terms thereof, and
no inaction or action regarding any Default or Event of Default is intended to
be or shall be a waiver thereof.
ARTICLE
III.
AMENDMENTS
Section
3.1 Section
1.01 of the Credit Agreement is hereby amended as follows:
(a) The
following new term is added in alphabetical order:
"Amendment No. 4 Effective
Date" means June 30, 2009.
HOUSTON\2299132
2
(b)
The defined term "May 14, 2009 Payment Amount" is deleted in its
entirety.
Section
3.2 Section
2.02(a) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(a) Borrowing
Base. The Borrowing Base in effect as of the Amendment No. 4
Effective Date has been set by the Administrative Agent and the Lenders and
acknowledged by the Borrower as $128,075,515.37. The Borrowing Base
shall be determined in accordance with the standards set forth in Section
2.02(d) and is subject to periodic redetermination or reduction pursuant to
Sections 2.02(b), 2.02(c) and 6.04(b).
Section
3.3 Section
2.02(e) of the Credit Agreement is hereby deleted in its entirety.
Section
3.4 Section
2.06 of the Credit Agreement is hereby amended to read in its entirety as
follows:
Section
2.06. Repayment of
Advances. The Borrower shall repay to the Administrative Agent
for the ratable benefit of the Lenders the outstanding principal amount of each
Advance, together with any accrued interest thereon, in installments in the
aggregate amounts and on the dates indicated as follows or on such earlier date
pursuant to Section 7.02 or Section 7.03:
|
Date
|
Amount
|
|
Maturity
Date
|
all
remaining principal, interest, fees and other amounts owing in respect of
the Advances
|
Section
3.5 Article V
of the Credit Agreement is hereby amended to add the following new Section 5.15
to the end thereof:
Section 5.15 Preliminary
Proxy Statement. On or prior to July 10,
2009, APC shall file a preliminary proxy statement pursuant to the Securities
Exchange Act of 1934, as amended, which preliminary proxy statement shall be in
form and substance satisfactory to the Administrative Agent in its sole
reasonable discretion.
Section
3.6 Section
6.05(b) of the Credit Agreement is hereby amended to add the following new
subsection (iv) to the end thereof:
(iv) with
respect to any such cash distribution, (a) the Borrower shall deposit cash in an
amount equal to such cash distribution into an account established with a Lender
(the "Designated
Escrow Account"), (b) the Administrative Agent shall have a first
priority, perfected security interest in the Designated Escrow Account on terms
and subject to documentation satisfactory to the Administrative Agent in its
sole discretion, (c) funds in an amount equal to any such cash distribution
shall be held in the Designated Escrow Account until the Subordinated Loan
Termination Date, (d) the Borrower shall not pay such cash distribution to any
of the equity holders of the Borrower until the Subordinated
HOUSTON\2299132
3
Loan
Termination Date has occurred, and (e) the Borrower hereby agrees and
acknowledges that during the existence of any Event of Default, the
Administrative Agent may apply any funds held in the Designated Escrow Account
to the Obligations in any order determined by the Administrative Agent;
and
Section
3.7 Section
7.01(c)(i) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(i)
perform or observe any covenant contained in Section 5.02(a), Section
5.06(e), Section 5.12, Section 5.13, Section 5.15, or Article VI of this
Agreement or
Section
3.8 Section
7.01 of the Credit Agreement is hereby amended to delete subsection (q)
thereof.
ARTICLE
IV.
AGREEMENT
Section
4.1 Consent
Fee. In connection with this Agreement, the Borrower agrees to
pay to the Administrative Agent for the account of the Lenders having
Commitments a consent fee in an aggregate amount equal to $2,400,000 (the "Consent Fee"), to be
distributed among such Lenders in accordance with their respective Pro Rata
Shares. The Consent Fee shall be due and payable on the Effective
Date.
ARTICLE
V.
REPRESENTATIONS
AND WARRANTIES
Section
5.1 Representations
and Warranties. The Borrower represents and warrants that: (a)
its representations and warranties contained in Article IV of the Credit
Agreement and its representations and warranties contained in the Security
Instruments, the Guaranties, and each of the other Loan Documents to which it is
a party are true and correct in all material respects on and as of the Effective
Date, as though made on and as of such date, except those representations and
warranties that speak of a certain date, which representations and warranties
were true and correct as of such date; (b) no Default has occurred and is
continuing; (c) the execution, delivery and performance of this Agreement are
within the corporate power and authority of the Borrower and have
been duly authorized by appropriate corporate action and proceedings; (d) this
Agreement constitutes the legal, valid, and binding obligation of the Borrower
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the rights of creditors generally and general principles of equity; (e) there
are no governmental or other third party consents, licenses and approvals
required in connection with the execution, delivery, performance, validity and
enforceability of this Agreement; and (f) the Liens under the Security
Instruments are valid and subsisting and secure the Borrower's obligations under
the Loan Documents.
ARTICLE
VI.
CONDITIONS
This
Agreement shall become effective and enforceable against the parties hereto upon
the occurrence of the following conditions precedent:
HOUSTON\2299132
4
Section 6.1
Documentation. The Administrative Agent shall have received
multiple original counterparts, as requested by the Administrative Agent, of
this Agreement duly and validly executed and delivered by duly authorized
officers of the Borrower, the Administrative Agent, the Issuing Lender and the
Required Lenders.
Section
6.2 Subordinated
Credit Agreement Amendment. The Administrative Agent shall
have received true and correct copies of the fully executed Subordinated Credit
Agreement Amendment and such agreement shall have become effective.
Section
6.3 Merger
Agreement. The Administrative Agent shall have received true
and correct copies of the fully executed Merger Agreement, and such agreement
shall be enforceable against the Borrower and APC in accordance with its terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, or similar law affecting creditors'
rights generally and by general principles of equity.
Section
6.4 No
Default. No Default shall have occurred and be continuing as
of the Effective Date.
Section
6.5 Representations. The
representations and warranties in this Agreement shall be true and correct in
all material respects.
Section
6.6 Fees and
Expenses. The Borrower shall have paid all fees and expenses
of the Administrative Agent's outside legal counsel and other consultants
pursuant to all invoices presented for payment on or prior to the Effective
Date.
ARTICLE
VII.
MISCELLANEOUS
Section
7.1 Effect on
Loan Documents;
Acknowledgments.
(a) The
Borrower acknowledges that on the date hereof all Obligations are payable
without defense, offset, counterclaim or recoupment.
(b) The
Administrative Agent, the Issuing Lender, and the Lenders hereby expressly
reserve all of their rights, remedies, and claims under the Loan
Documents. Nothing in this Agreement shall constitute a waiver or
relinquishment of (i) any Default or Event of Default under any of the Loan
Documents, (ii) any of the agreements, terms or conditions contained in any of
the Loan Documents, (iii) any rights or remedies of the Administrative Agent,
the Issuing Lender or any Lender with respect to the Loan Documents, or (iv) the
rights of the Administrative Agent, any Issuing Lender or any Lender to collect
the full amounts owing to them under the Loan Documents.
(c) Each of
the Borrower, the Administrative Agent, the Issuing Lender, and the Lenders does
hereby adopt, ratify, and confirm the Credit Agreement, and acknowledges and
agrees that the Credit Agreement and all other Loan Documents are and remain in
full force and effect, and the Borrower acknowledges and agrees that its
liabilities under the Credit Agreement and the other Loan Documents are not
impaired in any respect by this Agreement or the consent and amendment granted
hereunder.
HOUSTON\2299132
5
(d) This Agreement is
a Loan Document for the purposes of the provisions of the other Loan
Documents. Without limiting the foregoing, any breach of
representations, warranties, and covenants under this Agreement shall be a
Default or Event of Default, as applicable, under the Credit
Agreement.
Section
7.2 Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original and all of which, taken together, constitute a single
instrument. This Agreement may be executed by facsimile signature and
all such signatures shall be effective as originals.
Section
7.3 Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Lenders, the Borrower, the Administrative Agent, the Issuing
Lender and their respective successors and assigns permitted pursuant to the
Credit Agreement.
Section
7.4 Invalidity. In
the event that any one or more of the provisions contained in this Agreement
shall for any reason be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
Section
7.5 Governing
Law. This Agreement
shall be deemed to be a contract made under and shall be governed by and
construed in accordance with the laws of the State of New York.
Section
7.6 RELEASE. THE
BORROWER ACKNOWLEDGES THAT ON THE DATE HEREOF ALL OBLIGATIONS ARE PAYABLE
WITHOUT DEFENSE, OFFSET, COUNTERCLAIM OR RECOUPMENT. IN ADDITION,
EACH OF THE BORROWER AND ITS SUBSIDIARIES (FOR THEMSELVES AND THEIR RESPECTIVE
SUCCESSORS, AGENTS, ASSIGNS, TRANSFEREES, OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, ATTORNEYS AND AGENTS) HEREBY RELEASES ANY AND ALL CLAIMS, CAUSES
OF ACTION OR OTHER DISPUTES IT MAY HAVE AGAINST THE ADMINISTRATIVE AGENT, THE
ISSUING LENDER, ANY OF THE LENDERS, LEGAL COUNSEL TO THE ADMINISTRATIVE AGENT,
THE ISSUING LENDER OR ANY OF THE LENDERS, CONSULTANTS HIRED BY ANY OF THE
FOREGOING, OR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SHAREHOLDERS,
AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS
OF ANY KIND OR NATURE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH,
THE CREDIT AGREEMENT OR THE LOAN DOCUMENTS, IN EACH CASE WHICH MAY HAVE ARISEN
ON OR BEFORE THE DATE OF THIS AGREEMENT. EACH OF THE BORROWER AND ITS
SUBSIDIARIES HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND HAS
CONFERRED WITH ITS COUNSEL AND ADVISORS REGARDING ITS CONTENT, INCLUDING THIS
SECTION 7.6, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT, AND
HEREBY AGREES TO WAIVE ANY CLAIM THAT THE TERMS OF THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, THE RELEASES CONTAINED HEREIN) ARE INVALID OR OTHERWISE
UNENFORCEABLE.
HOUSTON\2299132
6
Section
7.7 Entire
Agreement.
THIS AGREEMENT, THE
CREDIT AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[Signature Pages
Follow]
HOUSTON\2299132
7
