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EXHIBIT 10.28
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this
"First Amendment") is entered into as of the 7th day of March, 2001 (the
"Effective Date"), by and among EXCO Resources, Inc., a Texas corporation
("Borrower"), Bank of America, N.A., as Administrative Agent ("Administrative
Agent"), and the financial institutions parties hereto as Banks ("Banks").
WITNESSETH
WHEREAS, Borrower, Administrative Agent and Banks are parties to that
certain Amended and Restated Credit Agreement dated as of September 22, 2000 (as
amended, the "Credit Agreement") (unless otherwise defined herein, all terms
used herein with their initial letter capitalized shall have the meaning given
such terms in the Credit Agreement); and
WHEREAS, pursuant to the Credit Agreement, Banks have made a Revolving
Loan to Borrower and provided certain other credit accommodations to Borrower;
and
WHEREAS, Borrower has requested that the Borrowing Base be increased
and other provisions in the Credit Agreement be amended; and
WHEREAS, subject to and upon the terms and conditions set forth herein,
Banks have agreed to Borrower's requests.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed,
Borrower, Administrative Agent and Banks hereby agree as follows:
SECTION 1 Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this First Amendment, and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
Credit Agreement shall be amended effective as of the Effective Date in the
manner provided in this Section 1.
1.1 Additional Definition. Section 2.1 of the Credit Agreement
shall be amended to add the definition of "First Amendment" thereto, which shall
read in full as follows:
"First Amendment" means that certain First Amendment to
Amended and Restated Credit Agreement dated as of March 7, 2001 among
Borrower, Administrative Agent and Banks.
1.2 Amendment to Definition. The definition of "Loan Papers"
contained in Section 2.1 of the Credit Agreement shall be amended to read in
full as follows:
"Loan Papers" means this Agreement, the First Amendment, the
Notes, all Mortgages now or at any time hereafter delivered pursuant to
Section 7.1, and all other certificates, documents or instruments
delivered in connection with this Agreement, as the foregoing may be
amended from time to time.
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1.3 Defaults. Section 13.1(c) of the Credit Agreement is
amended to read in full as follows:
"(c) Borrower shall fail to observe or perform any covenant or
agreement contained in Section 8.3 or Articles 11 or 12 of this
Agreement, or Section 3.10 of the First Amendment."
1.4 New Schedule 1. Schedule 1 attached to the Credit
Agreement shall be replaced in its entirety by Schedule 1 attached to this First
Amendment.
SECTION 2 Borrowing Base Effective as of the Effective Date. In
reliance on the representations, warranties, covenants and agreements contained
in this First Amendment, upon the satisfaction of each condition precedent set
forth in Section 3 hereof (evidenced by a written notice to that effect from
Administrative Agent to Borrower), the Borrowing Base shall be increased from
$45,000,000 to $60,000,000 and shall remain at $60,000,000 until the next
Redetermination thereafter. Borrower and Banks agree that the Redetermination
provided for in this Section 2 shall not be construed or deemed to be a Special
Redetermination for purposes of Section 6.3 of the Credit Agreement.
SECTION 3 Conditions Precedent to Increase of Borrowing Base. The
increase in the Borrowing Base pursuant to Section 2 hereof is subject to the
satisfaction of each of the following conditions precedent on or before the
Effective Date:
3.1 Completion of STB Acquisition. Borrower shall have
completed the acquisition (the "STB Acquisition") of the STB Properties
substantially in accordance with the terms of that certain Purchase and Sale
Agreement dated February 21, 2001, by and between Borrower and STB Energy, Inc.
(as amended, the "STB Acquisition Agreement"). As used herein, the term "STB
Properties" means the Mineral Interests to be acquired by Borrower pursuant to
the STB Acquisition Agreement.
3.2 Additional Security. To the extent required by Section 7.1
of the Credit Agreement, Borrower shall execute and deliver to Administrative
Agent, for the ratable benefit of each Bank, Mortgages in form and substance
acceptable to Administrative Agent granting, evidencing and perfecting a first
and prior Lien (subject only to Permitted Encumbrances) covering and encumbering
Proved Mineral Interests owned by Borrower (after giving effect to the Xxxxxx
Acquisition and the STB Acquisition) which are not the subject of existing
valid, enforceable, and perfected first priority Liens (subject to Permitted
Encumbrances) in favor of Administrative Agent for the ratable benefit of each
Bank (including, without limitation, the STB Properties and the Xxxxxx
Properties) (collectively the "Subject Properties"). As used herein, the term
"Xxxxxx Properties" means the Mineral Interests acquired (the "Xxxxxx
Acquisition" and, together with the STB Acquisition, collectively the "Subject
Acquisitions") by Borrower pursuant to that certain Purchase and Sale Agreement,
dated effective November 1, 2000, between Xxxxxx Leases L.L.C. and Xxxxxx
Drilling Co., Inc., as seller, and Xxxxxxx Petroleum Corporation, as buyer (as
amended, the "Xxxxxx Acquisition Agreement"). Borrower shall also deliver to
Administrative Agent such opinions of counsel as Administrative Agent shall deem
necessary or appropriate to verify the
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validity, perfection and priority of the Liens created by such Mortgages and
such other matters regarding such Mortgages as Administrative Agent shall
reasonably request.
3.3 Title Review. Administrative Agent and its counsel shall
have completed a review of title (including opinions of title) to that portion
of the Subject Properties which results in Administrative Agent and its counsel
having reviewed title to Proved Mineral Interests with a Recognized Value equal
to or not less than eighty percent (80%) of the Recognized Value of all Proved
Mineral Interests owned by Borrower (after giving effect to the Subject
Acquisitions). Such review shall not have revealed any condition or circumstance
which would reflect that the representations and warranties contained in Section
9.9 of the Credit Agreement are inaccurate in any respect.
3.4 Environmental Review. Administrative Agent and its counsel
shall have been provided with, and shall have completed a review of, the
environmental reports required by Section 10.13 of the Credit Agreement with
respect to the Subject Properties, and such review shall not have revealed any
condition or circumstance which would reflect that, upon completion of the
Subject Acquisitions, the representations and warranties contained in Section
9.14 of the Credit Agreement are inaccurate in any respect.
3.5 Material Agreements. Administrative Agent shall have been
provided with a fully executed copy of the Xxxxxx Acquisition Agreement and the
STB Acquisition Agreement and all other material documents, instruments and
agreements executed and/or delivered by Borrower or any of its Subsidiaries in
connection with the Subject Acquisitions, together with a certificate from an
Authorized Officer of Borrower certifying that such copies are accurate and
complete and represent the complete understanding and agreement of the parties
with respect to the subject matter thereof.
3.6 New Notes. Administrative Agent shall have received a Note
payable to the order of each Bank (as applicable), each in the amount of such
Bank's Commitment as reflected on the new Schedule 1 attached to this First
Amendment.
3.7 Borrowing Base Increase Fee. Administrative Agent shall
have received, for the benefit of each Bank (as applicable), all fees due and
payable pursuant to Section 3.9 of the Credit Agreement in connection with the
increase in the Borrowing Base pursuant to Section 2 hereof.
3.8 Resolutions. Borrower shall have provided Administrative
Agent with copies of resolutions and comparable authorizations approving this
First Amendment and any other Loan Papers to be executed or delivered pursuant
hereto and authorizing the transactions contemplated by this First Amendment and
any other Loan Papers to be executed or delivered pursuant hereto, duly adopted
by the Board of Directors of Borrower accompanied by a certificate of the
Secretary or comparable Authorized Officer of Borrower that such copies are true
and correct copies of resolutions duly adopted at a meeting of or (if permitted
by applicable Law and, if required by such Law, by the Bylaws of Borrower) by
the unanimous written consent of the Board of Directors of Borrower, and that
such resolutions constitute all the resolutions adopted with respect to such
transactions, have not been amended, modified or revoked in any respect, and are
in full force and effect as of the date hereof.
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3.9 No Default. No Default or Event of Default shall have
occurred which is continuing.
3.10 Hedging Requirement. In addition to existing Oil and Gas
Hedge Transactions currently in place under the Credit Agreement, not later than
March 31, 2001 (the "Hedge Date"), Borrower shall additionally enter into Oil
and Gas Hedge Transactions with respect to production from the STB Properties
constituting Proved Producing Mineral Interests which shall in all events
provide for hedging of not less than seventy-five percent (75%) of Borrower's
and its Subsidiaries' anticipated production of Hydrocarbons (with respect to
such properties) for a period of not less than twenty-four (24) months (such
period to be measured from the effective date of each separate Oil and Gas Hedge
Transaction), and such Oil and Gas Hedge Transactions to otherwise be on terms
and conditions satisfactory to Administrative Agent and Banks. In the event
Borrower fails to timely comply with the provisions of this Section 3.10 ,
and/or such Oil and Gas Hedge Transactions are not otherwise effected by the
Hedge Date, notwithstanding anything to the contrary contained in the Credit
Agreement, this First Amendment or any other Loan Paper, including, without
limitation, Article 6 of the Credit Agreement, Required Banks shall have the
right, exercisable promptly following the Hedge Date, to make a Redetermination
of the Borrowing Base. Borrower and Banks agree that any such Redetermination of
the Borrowing Base pursuant to this Section 3.10 shall not be construed or
deemed to be a Special Redetermination for purposes of Section 6.3 of the Credit
Agreement.
3.11 Other Documents. Administrative Agent shall have been
provided with such other documents, instruments and agreements, and Borrower
shall have taken such actions, as Administrative Agent may reasonably require in
connection with this First Amendment and the transactions contemplated hereby.
SECTION 4 Representations and Warranties of Borrower. To induce Banks
and Administrative Agent to enter into this First Amendment, Borrower hereby
represents and warrants to Banks and Administrative Agent as follows:
4.1 Reaffirm Existing Representations and Warranties. Each
representation and warranty of Borrower contained in the Credit Agreement and
the other Loan Papers is true and correct on the date hereof and will be true
and correct after giving effect to the amendments set forth in Section 1 hereof.
4.2 Due Authorization; No Conflict. The execution, delivery
and performance by Borrower of this First Amendment are within Borrower's
corporate powers, have been duly authorized by all necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not violate or constitute a default under any provision of
applicable law or any Material Agreement binding upon Borrower or the
Subsidiaries of Borrower or result in the creation or imposition of any Lien
upon any of the assets of Borrower or the Subsidiaries of Borrower except
Permitted Encumbrances.
4.3 Validity and Enforceability; Extension of Liens. This
First Amendment constitutes the valid and binding obligation of Borrower
enforceable in accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor's rights generally, and (ii) the availability of equitable remedies may
be limited by equitable principles of general application.
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4.4 No Default or Event of Default. No Default or Event of
Default has occurred which is continuing.
4.5 Acquisition Documents. No material rights or obligations
of any party to any of the Subject Acquisition Documents have been waived and
neither Borrower, any of its Subsidiaries, nor, to the best knowledge of
Borrower, any other party to any of such Subject Acquisition Documents, is in
default of its obligations thereunder. Each of the Subject Acquisition Documents
is a valid, binding and enforceable obligation of the parties thereto in
accordance with its terms and is in full force and effect. Each representation
and warranty made by Borrower, and to the best knowledge of Borrower, by the
applicable seller in the Subject Acquisition Documents (a) was true and correct
when made, and (b) will be true and correct on the Effective Date. As used
herein, the term "Subject Acquisition Documents" means the Xxxxxx Acquisition
Agreement, the STB Acquisition Agreement, and all agreements, assignments,
deeds, conveyances, certificates and other documents and instruments now or
hereafter executed and delivered by or between Borrower and the applicable
seller thereunder pursuant to the Xxxxxx Acquisition Agreement and the STB
Acquisition Agreement (as applicable), or in connection with the Xxxxxx
Acquisition or the STB Acquisition (as applicable).
SECTION 5 Miscellaneous.
5.1 Reaffirmation of Loan Papers. Any and all of the terms and
provisions of the Credit Agreement and the Loan Papers shall, except as amended
and modified hereby, remain in full force and effect. The amendments
contemplated hereby shall not limit or impair any Liens securing the
Obligations, each of which are hereby ratified, affirmed and extended to secure
the Obligations as they may be increased pursuant hereto.
5.2 Parties in Interest. All of the terms and provisions of
this First Amendment shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns.
5.3 Legal Expenses. Borrower hereby agrees to pay on demand
all reasonable fees and expenses of counsel to Administrative Agent incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of this First Amendment and all related documents.
5.4 Counterparts. This First Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this First Amendment until all parties have executed a
counterpart. Facsimiles shall be effective as originals.
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5.5 Complete Agreement. THIS FIRST AMENDMENT, THE CREDIT
AGREEMENT AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
OR AMONG THE PARTIES.
5.6 Headings. The headings, captions and arrangements used in
this First Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this First
Amendment, nor affect the meaning thereof.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their respective authorized officers on the date and year
first above written.
BORROWER:
EXCO RESOURCES, INC.,
a Texas corporation
By:/s/ J. XXXXXXX XXXXXX
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Name: J. Xxxxxxx Xxxxxx,
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Title: Vice President and Chief Financial Officer
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By:/s/ XXXXXX X. XXXXX
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Xxxxxx Xxxxx,
Managing Director
BANKS:
BANK OF AMERICA, N.A., a national banking
association
By:/s/ XXXXXX X.XXXXX
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Xxxxxx Xxxxx,
Managing Director
BANK ONE, N.A., a national banking
association
By:/s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx,
Vice President
BANK OF TEXAS, N.A., a national banking
association
By:/s/ XXX XXXXXXX
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Xxx Xxxxxxx,
Senior Vice President
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SCHEDULE 1
FINANCIAL INSTITUTIONS
Closing Fee
Commitment (paid on Closing
Bank Commitment Amount Percentage Date)
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Bank of America, N.A $56,250,000 37.50% $ 50,625
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Bank One, N.A $46,875,000 31.25% $14,062.50
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Bank of Texas, N.A $46,875,000 31.25% $14,062.50
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Domestic Lending Eurodollar Lending
Banks Office Office Address for Notice
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Bank of America, N.A 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000 Fax No. (000) 000-0000 Fax No. (000) 000-0000
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Bank One, N.A. 0000 Xxxx Xxxxxx, 0xx Xxxxx 0000 Xxxx Xxxxxx, 0xx Xxxxx 0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000 Fax No. (000) 000-0000 Fax No. (000) 000-0000
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Bank of Texas, N.A. 0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx
Xxxxx 0000 Xxxxx 0000 Xxxxx 0000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000 Fax No. (000) 000-0000 Fax No. (000) 000-0000
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Administrative Agent Address for Notice
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Bank of America, N.A. 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
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