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EXHIBIT 10.2
TENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Tenth Amendment to Amended and Restated Credit Agreement
(this "Amendment") dated as of May 27, 1999 is among XXXXXXXX ENERGY, INC., a
Delaware corporation (the "Borrower"), the banks named on the signature pages
hereto (together with their respective successors and assigns in such capacity,
the "Banks"), BANKERS TRUST COMPANY, as agent for the Banks (together with its
successors and assigns in such capacity, the "Agent") and UNION BANK OF
CALIFORNIA, N.A., as co-agent for the Banks (together with its successors and
assigns in such capacity, the "Co-Agent").
PRELIMINARY STATEMENT
A. The Borrower and the Bank Group have entered into that
certain Amended and Restated Credit Agreement dated as of August 28, 1997 as
amended by that certain First Amendment to Amended and Restated Credit Agreement
dated as of December 30, 1997, that certain Second Amendment to Amended and
Restated Credit Agreement dated as of January 14, 1998, that certain Third
Amendment to Amended and Restated Credit Agreement dated as of February 26,
1998, that certain Fourth Amendment to Amended and Restated Credit Agreement
dated as of March 24, 1998, that certain Fifth Amendment to Amended and Restated
Credit Agreement dated as of June 30, 1998, that certain Sixth Amendment to
Amended and Restated Credit Agreement dated as of November 19, 1998, that
certain Seventh Amendment to Amended and Restated Credit Agreement dated as of
March 9, 1999, that certain Eighth Amendment to Amended and Restated Credit
Agreement dated as of March 31, 1999 and that certain Ninth Amendment to Amended
and Restated Credit Agreement dated as of May 12, 1999 (as so amended, the
"Credit Agreement").
B. The Borrower and the Bank Group desire to further amend the
Credit Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties agree as follows:
Section 1. Definitions. Unless otherwise defined in this
Amendment, each capitalized term used in this Amendment has the meaning assigned
to such term in the Credit Agreement.
Section 2. Amendments. The Credit Agreement is hereby amended
as follows:
a. Section 2.07(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) On each of the dates set forth below (each a "Scheduled
Loan Paydown Date") the Borrower shall repay the Loans comprising part
of the same Borrowing in whole or ratably in part in an amount equal to
the "Scheduled Paydown Amount" set forth opposite such Scheduled Loan
Paydown Date:
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Scheduled Loan Scheduled
Paydown Date Paydown Amount
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June 18, 1999 $10,247,000
July 31, 1999 $750,000
August 15, 1999 $2,500,000
August 31, 1999 $750,000
b. Section 6.02 of the Credit Agreement is hereby amended by adding the
following subclause (l) immediately after subclause (k) of Section 6.02:
"and (l) Liens described on Schedule 6.02 securing the
Indebtedness described on Schedule 6.02 so long as such Liens have been
released and/or extinguished on or before June 18, 1999;"
c. Section 6.07 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Section 6.07. Sales of Properties. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, assign,
farm-out, lease or otherwise transfer or dispose of any Properties
other than (a) sales of Hydrocarbon production in the ordinary course
of business and sales of obsolete or worn-out equipment in the ordinary
course of business, (b) sales or transfers of Properties by any of the
Borrower's wholly-owned Subsidiaries to the Borrower or any such other
wholly-owned Subsidiary, (c) the sale of the Xxxxxxxx Divestiture
Properties; provided that with respect to any such sale of Xxxxxxxx
Divestiture Properties (i) the sale is consummated on or before June
18, 1999, (ii) the cash sales proceeds received by the Borrower for
each group of Xxxxxxxx Divestiture Properties is not less than the
Minimum Sales Price for such group of Xxxxxxxx Divestiture Properties
as set forth on Schedule 6.07, (iii) at least 60% of the sales proceeds
from such sale is applied to partially repay the Loans and (iv) the
remaining sales proceeds are applied by the Borrower toward the payment
of (y) existing Indebtedness and obligations of the Borrower and/or (z)
the costs and expenses of operating, maintaining and developing its Oil
and Gas Properties, and (d) the sale of the Rocky Mountain Divestiture
Properties; provided that with respect to any such sale of Rocky
Mountain Divestiture Properties (i) the sale is consummated on or
before June 18, 1999, (ii) the cash sales price for each group of Rocky
Mountain Divestiture Properties is not less than the Minimum Sales
Price for such group of Rocky Mountain Divestiture Properties as set
forth on Schedule 6.07, (iii) at least 60% of the cash sales proceeds
received by the Borrower at closing for each group of Rocky Mountain
Divestiture Properties is applied to partially repay the Loans, (iv)
the remaining cash sales proceeds received by the Borrower at closing
for each group of Rocky Mountain Divestiture Properties are applied by
the Borrower toward the payment of (y) existing Indebtedness and
obligations of the Borrower and/or (z) the costs and expenses of
operating, maintaining and developing its Oil and Gas Properties, (v)
the cash sales proceeds to be received by the Borrower at closing for
each group of Rocky Mountain Divestiture Properties is not less than
75% of the total cash sales price for such group of Rocky Mountain
Divestiture Properties (vi) the Agent, in its sole discretion, shall
have approved of the terms of the sale of each group of Rocky Mountain
Divestiture Properties, (vii) 100% of the cash sales proceeds received
by the Borrower after closing for each group of Rocky Mountain
Divestiture Properties is applied to partially repay the Loans
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and (viii) the Borrower shall have granted a first priority Lien in
favor of the Agent as security for the Obligations on such post-closing
cash sales proceeds and the Borrower's rights thereto pursuant to
Security Documents satisfactory in form and substance to the Agent."
d. Section 9.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Section 9.01. Amendments, Etc. Subject to the last sentence
of this Section 9.01, no amendment or waiver of any provision of this
Agreement, any Note or any other Loan Document, or consent to any
departure by any Person herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Borrower and the Majority Banks, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following:
(a) waive any of the conditions specified in Article III, (b) increase
the Commitments of the Banks or subject the Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (e) release the Borrower or
any other Person from its payment obligations to the Bank Group,
regardless of whether such obligations are those of a primary obligor,
a guarantor or surety, or otherwise, (f) authorize the Agent to release
Liens against a substantial portion of any collateral covered by the
Security Documents, (g) take action which expressly requires the
signing of all the Banks pursuant to the terms of this Agreement, (h)
reduce the Commitment Percentages or the aggregate unpaid principal
amount of the Notes, or the number of Banks, as the case may be,
required for the Agent or the Banks or any of them to take any action
under this Agreement or reduce the percentage of Majority Banks or (i)
amend this Section 9.01; provided, further, that no amendment, waiver
or consent shall (1) unless in writing and signed by the Co-Agent in
addition to the Banks required above to take such action, effect the
rights or duties of the Co-Agent under this Agreement or any other Loan
Documents and (2) unless in writing and signed by the Agent in addition
to the Banks required above to take such action, affect the rights or
duties of the Agent under this Agreement or any other Loan Document.
Notwithstanding the foregoing, (y) the Agent may (without the consent
of the Banks) release the Lien created under the Security Documents on
any assets of the Borrower or any of its Subsidiaries if the sale of
such assets is permitted under Section 6.07 and (z) any waiver of any
Default or Event of Default under Sections 7.01(c), (d), (e), (f), (g)
or (m) or any Default that with the giving of notice or the lapse of
time or both could become an Event of Default under Sections 7.01(c),
(d), (e), (f), or (m) shall become effective for the specific instance
and for the specific purpose for which given if such waiver is in
writing and signed by the Borrower and the Required Banks."
e. The following defined terms are hereby added to Annex A to the
Credit Agreement in their appropriate alphabetical order:
"DJ Basin Field" means the xxxxx described on Exhibit A-10
attached hereto and the Oil and Gas Properties directly related or
attributable to such xxxxx.
"Xxxxxxxx Field" means the xxxxx described on Exhibit A-11
attached hereto and the Oil and Gas Properties directly related or
attributable to such xxxxx.
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"Required Banks" means at any time (a) the Agent, regardless
of the amounts held and (b) Banks holding at least seventy-one percent
(71%) of the then aggregate unpaid principal amount of the Loans or, if
no Loans are outstanding, Banks having Commitment Percentages in the
aggregate equal to at least seventy-one percent (71%).
"Rocky Mountain Divestiture Properties" means the DJ Basin
Field and Xxxxxxxx Field."
f. Schedule 6.07 of the Credit Agreement is hereby amended in its
entirety to read the same as Schedule 6.07 attached to this Amendment.
g. The Credit Agreement is further amended by adding the Exhibits A-10
and A-11 and Schedule 6.02 attached to this Amendment as Exhibits A-10 and A-11
and Schedule 6.02 to the Credit Agreement.
Section 3. Limited Waiver of Credit Agreement. The Bank Group
hereby waives compliance by the Borrower with Sections 9(a) and 9(b) of the
Eighth Amendment to Amended and Restated Credit Agreement dated as of March 31,
1999 until June 18, 1999. The Bank Group hereby waives compliance by the
Borrower with the last sentence of Section 5.11 of the Credit Agreement until
June 18, 1999. The Bank Group hereby waives, until June 18, 1999, the Default
under Section 7.01(e) of the Credit Agreement resulting from the Borrower's
failure to pay BTCo. an amount equal to $368,900 that became due on May 5, 1999
under a certain Bank Group Derivative between the Borrower and BTCo. The
foregoing waivers are limited to the above described matters and time period,
shall expire on June 18, 1999, and shall not be construed as a waiver of any
provision of the Credit Agreement or any other Loan Document with respect to any
other matter or as a waiver of any other current or future Default or Event of
Default under the Credit Agreement. The Bank Group reserves the right to
exercise any rights or remedies with respect to any other such current or future
Default or Event of Default under the Credit Agreement. The foregoing waiver of
Section 7.01(e) of the Credit Agreement shall not be deemed as a waiver of any
right or remedy of BTCo. with respect to any Bank Group Derivative between the
Borrower and BTCo. or as a release or forgiveness by BTCo. of any amount at any
time owing by the Borrower to BTCo. in respect of any such Bank Group
Derivative.
Section 4. Limitations of Amendments. THE AMENDMENTS TO THE
CREDIT AGREEMENT AND WAIVERS SET FORTH HEREIN SHALL NOT (A) ESTABLISH A COURSE
OF DEALING BETWEEN THE BORROWER AND THE BANK GROUP, (B) BE CONSIDERED A NORMAL
AND CUSTOMARY PRACTICE BY ANY MEMBER OF THE BANK GROUP, OR (C) OBLIGATE ANY BANK
TO AGREE TO ANY OTHER AMENDMENT IN THE FUTURE FOR ANY PURPOSE. THE BORROWER
FURTHER ACKNOWLEDGES THAT THE AMENDMENTS SET FORTH HEREIN ARE AN ACCOMMODATION
TO THE BORROWER, MADE AT ITS REQUEST, AND THAT NO SIMILAR ACCOMMODATION IS
PRESENTLY CONTEMPLATED OR CAN BE EXPECTED IN THE FUTURE.
Section 5. Ratification. The Borrower hereby ratifies and
confirms all of the Obligations under the Credit Agreement (as amended hereby)
and the other Loan Documents. All references in the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement as amended hereby and as the
same may be amended, supplemented, restated or otherwise modified and in effect
from time to time in the future.
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Section 6. Effectiveness. This Amendment shall become
effective in accordance with the terms of the Credit Agreement.
Section 7. Representations and Warranties. The Borrower hereby
represents and warrants to the Bank Group that (a) the execution, delivery and
performance of this Amendment has been duly authorized by all requisite
corporate action on the part of the Borrower, (b) each of the Credit Agreement
(as amended hereby) and the other Loan Documents to which it is a party
constitutes a valid and legally binding agreement enforceable against the
Borrower in accordance with its terms except, as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity, (c) the
representations and warranties by the Borrower contained in the Credit Agreement
as amended hereby and in the other Loan Documents are true and correct on and as
of the date hereof in all material respects as though made as of the date
hereof, (d) no Default or Event of Default exists under the Credit Agreement (as
amended hereby) or any of the other Loan Documents.
Section 8. Choice of Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 9. Final Agreement. THE CREDIT AGREEMENT (AS AMENDED
HEREBY) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by its officers thereunto duly authorized as of the
date first above written.
XXXXXXXX ENERGY, INC.
By:
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Name:
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Title:
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BANKERS TRUST COMPANY,
as Agent and Bank
By:
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Name:
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Title:
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UNION BANK OF CALIFORNIA, N.A.,
as Co-Agent and Bank
By:
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Name:
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Title:
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By:
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Name:
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Title:
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DEN NORSKE BANK ASA,
as Bank
By:
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Name:
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Title:
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By:
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Name:
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Title:
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XXXXX FARGO BANK (TEXAS), N.A.,
as Bank
By:
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Name:
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Title:
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SCHEDULE 6.02
1. Oil and Gas Lien filed by Rock Tool Company covering the Xxxxx XxXxxxxx
#1 Well in Xxxx County, Texas and claiming indebtedness owed in the
amount of $69,072.14.
2. Oil and Gas Lien recorded in Volume 177, Page 629 of the real property
records of Lavaca County, Texas, filed by Xxxxx Xxxxxx Company, Inc.
covering the Xxxx-Xxxxxxxx #5 Well in Lavaca County, Texas and claiming
indebtedness owed in the amount of $179,216.33.
3. Oil and Gas Liens recorded in Book 351, Page 968 of the real property
records of Eddy County and Book 370, Page 878 of the real property
records of Xxxxxx County, New Mexico, filed by Xxxxxx Geophysical,
covering the Harpo Prospect and claiming indebtedness owed in the
amount of $521,883.05.
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SCHEDULE 6.07
XXXXXXXX DIVESTITURE PROPERTIES
GROUP MINIMUM SALES PRICE
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Bone Pile Field $ 249,300
Xxxxxxxx Lease $ 000,000
Xxxxxx Xxxxx Xxxxx $ 657,900
Davan Unit $ 585,000
Hillboldt Gas Unit #1 $ 63,000
Xxxxxxx E and F Lease $ 20,700
Natural Buttes Field $ 1,462,500
Xxxxx Peak Field $ 856,800
World Field $ 5,940,000
ROCKY MOUNTAIN DIVESTITURE PROPERTIES
GROUP MINIMUM SALES PRICE
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DJ Basin Field $ 5,500,000
Xxxxxxxx Field $ 7,600,000
