AMENDMENT NO. 4
Exhibit 10.3
AMENDMENT NO.
4
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").
RECITALS
A. The Borrower, the Lenders and the
Administrative Agent are parties to the Subordinated Credit Agreement dated as
of January 31, 2008, as amended by that certain Amendment No. 1 dated as of
January 16, 2009, Amendment No. 2 dated as of April 30, 2009, and
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 Senior Agent and the Senior Lenders (each as defined in the Credit
Agreement) propose to make certain amendments to the Senior Credit Agreement (as
defined in the Credit Agreement) pursuant to that certain Amendment No. 4
dated as of June 30, 2009 (the "Senior Credit Agreement
Amendment") among the Borrower, the Senior Agent and the Senior
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) to the extent required to make such agreement effective, consent to
the Senior Credit Agreement Amendment and (b) make certain amendments to the
Credit Agreement as provided herein.
E. The Borrower, the Administrative Agent
and the Lenders wish to, subject to the terms and conditions of this Agreement,
make certain amendments to the Credit Agreement as provided herein.
THEREFORE, the Borrower, the
Administrative Agent and the Lenders hereby agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 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.
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Section
1.02 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
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
2.01 Consent;
Acknowledgment; Agreement. Subject to the terms of this
Agreement and to the extent required to make such agreements effective, the
Administrative Agent and the Lenders hereby consent to the execution and
delivery of the Senior 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
3.01 Section
1.01 of the Credit Agreement is hereby amended as follows:
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(a) The
defined term "Maturity Date" is amended to read in its entirety as
follows:
"Maturity Date" means
August 14, 2009; provided that if an Investor Trigger Event shall occur, the
"Maturity Date" under this Agreement shall be the date on which such Investor
Trigger Event occurs.
Section
3.02 Article V
of the Credit Agreement is hereby amended to correct the section reference on
the subsection entitled "Amendment to Registration Statement" from "Section
5.15" to "Section 5.16" and to amend such subsection to read in its entirety as
follows:
Section 5.16 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
3.03 Article V
of the Credit Agreement is hereby amended to add the following new Section 5.17
to the end thereof:
Section
5.17 Warrants. On
or before August 14, 2009, the Borrower shall issue to the Lenders on a pro rata
basis warrants exercisable at an exercise price equal to $0.01 per unit, which
warrants shall (a) represent 2.5% of the Equity Interests of the Borrower
outstanding as of the date of issuance and (b) be in form and on terms
satisfactory to the Administrative Agent in its sole discretion; provided that the
Borrower shall not be required to issue such warrants if the Obligations are
repaid in full on or before the Maturity Date. This Section 5.17
shall supersede and replace the requirements of Section 4.01 of Amendment No.
3.
Section
3.04 Section
7.01(c)(i) of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
(i) perform or observe any covenant contained in Section 5.02(a), Section
5.06(e) or (q), Section 5.12, Section 5.13, Section 5.15, Section 5.16, Section
5.17, or Article VI of this Agreement or
Section
3.05 Section
7.01(o) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(o) Equity
Issuance Proceeds. The
Borrower fails to receive Equity Issuance Proceeds in immediately available
funds in an amount equal to at least $20,000,000 on or before August 14,
2009.
Section
3.06 Section
7.01(p) of the Credit Agreement is hereby amended to read in its entirety as
follows:
(p)
Merger Agreement
Termination. The Agreement and Plan of Merger dated as of June
30, 2009 by and between APC and the Borrower shall be terminated prior to the
consummation of the Merger (as defined therein).
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ARTICLE
IV.
RESERVED
ARTICLE
V.
REPRESENTATIONS
AND WARRANTIES
Section
5.01 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
V1.
CONDITIONS
This
Agreement shall become effective and enforceable against the parties hereto upon
the occurrence of the following conditions precedent:
Section
6.01 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 Lenders.
Section
6.02 Senior
Credit Agreement Amendment. The Administrative Agent shall
have received true and correct copies of the fully-executed Senior Credit
Agreement Amendment and such agreement shall have become effective.
Section
6.03 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
6.04 No
Default. No Default shall have occurred and be continuing as
of the Effective Date.
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Section
6.05 Representations
and Warranties. The representations and warranties in this
Agreement shall be true and correct in all material respects.
Section
6.06 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
7.01 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 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 or any Lender with respect to the Loan
Documents, or (iv) the rights of the Administrative Agent or any Lender to
collect the full amounts owing to them under the Loan Documents.
(c) Each of
the Borrower, the Administrative Agent 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.
(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
7.02 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
7.03 Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Lenders, the Borrower, the Administrative Agent and their
respective successors and assigns permitted pursuant to the Credit
Agreement.
Section
7.04 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.
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Section
7.05 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
7.06 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, ANY OF
THE LENDERS, LEGAL COUNSEL TO THE ADMINISTRATIVE AGENT 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 7.06, 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.
Section
7.07 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.
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