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EXHIBIT 10.5
FOURTH AMENDMENT TO FINANCING AGREEMENT
Fourth Amendment to Financing Agreement dated as of November
17, 1999 (the "Amendment"), by and between Energy Partners, Ltd., a Delaware
corporation (the "Borrower"), and Energy Income Fund, L.P., a Delaware limited
partnership ("EIF"), to that certain Financing Agreement dated as of April 15,
1998, as amended by the First Amendment to Financing Agreement dated as of June
19, 1998, the Second Amendment to Financing Agreement dated as of August 31,
1998 and the Third Amendment to Financing Agreement dated as of February 10,
1999 (as amended, the "Financing Agreement").
RECITALS
WHEREAS, EIF has funded Loans totaling $25 million under the
Financing Agreement;
WHEREAS, concurrent with the entering into of this Agreement,
Borrower is repaying $15 million of such Loans plus accrued interest and accrued
overriding royalty to EIF; and
WHEREAS, the execution and delivery of this Amendment and the
repayment contemplated by the preceding paragraph are conditions to the
consummation of an equity investment in Borrower of $60 million (the "Equity
Investment") by Evercore Capital Partners L.P. and certain of its affiliates
(the "Evercore Entities"); and
WHEREAS, this Amendment shall terminate in its entirety and
have no force and effect if Borrower is not repaid the full $15 million of such
Loans plus accrued interest and accrued overriding royalty.
NOW, THEREFORE, in consideration of the foregoing, and other
good and valuable consideration the receipt and sufficiency of which are
expressly acknowledged, the parties hereby agree as follows:
1. Capitalized terms used herein without definition shall have
the meanings specified in the Financing Agreement.
2. The definition of "Reserve Report" in Section 1.1 of the
Financing Agreement is deleted in its entirety.
3. Paragraph (B) of the definition of "Change of Control" in
Section 1.1 of the Financing Agreement is deleted in its entirety and replaced
with the following:
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"any such Acquiring Person or group in which such
Acquiring Person is a member acquires the right to appoint or
cause to be appointed or elected a majority of the directors
of Borrower or a director or directors with the authority to
prevent actions by Borrower approved by a majority of
Borrower's directors."
4. The definition of "Properties" in Section 1.1 of the
Financing Agreement is deleted in its entirety and replaced with the following:
"'Properties' shall mean all of Borrower's right,
title and interest in the Bay Xxxxxxxx Properties, the Chevron
Properties and the Xxxxxx-Xxxxx Properties."
5. The definition of "Stockholders' Agreement" in Section 1.1
of the Financing Agreement is deleted in its entirety and replaced with the
following:
"'Stockholder Agreement' means the stockholder
agreement dated November 17, 1999 among Borrower, EIF, the
Evercore Entities and the other parties named therein."
6. Section 2.1 of the Financing Agreement is deleted in its
entirety and replaced with the following:
"2.1. Loans. EIF and Borrower agree that $10,000,000
in principal amount of Loans are outstanding under this
Agreement as of November 17, 1999. No additional Loans shall
be made hereunder."
7. In Section 2.3(a), the words "twelve percent (12%)" are
deleted and replaced with "thirteen percent (13%)" and the following is added as
a second sentence:
"If principal and accrued interest outstanding under
the Loans are not repaid in full on or prior to September 30,
2000, the Base Interest shall become fourteen percent (14%)
per annum from and after such date."
8. Section 2.4 of the Financing Agreement is deleted in its
entirety and replaced with the following:
"2.4. Interest Upon Default. No additional interest
over and beyond the interest provided for in Section 2.3 of
this Agreement shall be payable upon the occurrence or during
the continuation of an Event of Default."
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9. Section 2.5 of the Financing Agreement is deleted in its
entirety and replaced with the following:
"2.5. Repayment of Principal. To the extent not
prepaid pursuant to Section 2.6, the entire principal amount
of Loans and accrued and unpaid interest shall be due and
payable on December 31, 2000."
10. Section 2.6 of the Financing Agreement is deleted in its
entirety and replaced with the following:
"2.6. Optional Prepayment. Borrower may prepay the
Loans in whole or in part at any time without penalty upon
three days written notice."
11. Sections 2.8 and 2.9 of the Financing Agreement are
deleted in their entirety.
12. Articles 3 and 6 of the Financing Agreement are deleted in
their entirety.
13. Section 4.3 of the Financing Agreement is deleted in its
entirety and replaced with the following:
"4.3. Recourse. Borrower shall be fully and
personally liable for all amounts owed to EIF with respect to
this Agreement and the Loans."
14. Section 7.3(e) of the Financing Agreement is deleted in
its entirety and replaced with the following:
"(e) By March 31 of each year, Borrower shall provide
a reserve report (with an effective date as of December 31 of
the prior year) prepared by engineers selected by Borrower and
provided to the Evercore Entities under the Stockholder
Agreement."
15. Section 7.5 of the Financing Agreement is amended by
adding the following at the beginning thereof:
"Except as contemplated by the Loan Agreement
Revolving Line of Credit dated June 23, 1999 between Borrower
and Bank One, Texas, N.A., and related documents, all as
amended from time to time (the "Bank One Facility"),"
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16. Section 7.15 of the Financing Agreement is revised by
deleting all text after the first sentence.
17. Section 7.16 of the Financing Agreement is amended by
adding the following at the beginning thereof:
"Except for payment by Borrower of dividends on the
Series A Convertible Preferred Stock, the Series B Convertible
Preferred Stock and the Series C Preferred Stock of the
Borrower,"
18. Section 7.18 of the Financing Agreement is amended by
adding the following at the beginning thereof:
"Except for liens in favor of Bank One, Texas, N.A.
under the Bank One Facility or any replacement bank under a
replacement of the Bank One Facility"
19. The second sentence of Section 7.23 of the Financing
Agreement is deleted in its entirety.
20. Sections 7.26 and 7.27 of the Financing Agreement are
amended by adding the following at the beginning thereof:
"Except as a result of the Equity Investment, a
Public Offering (as defined in the Stockholder Agreement) and
the release of the Escrow Shares (as defined in the
Stockholder Agreement),"
21. Section 7.36 of the Financing Agreement is amended by
adding the following at the beginning thereof:
"Except as a result of the Equity Investment, a
Public Offering (as defined in the Stockholder Agreement), the
release of the Escrow Shares (as defined in the Stockholder
Agreement), and the Common Stock which may be issued pursuant
to Section 8.2 of the Stockholder Agreement,"
22. Sections 7.3(j), 7.7, 7.22(a), 7.22(d), 7.30, and 7.33 are
deleted in their entirety.
23. By execution of this Amendment, the parties agree that the
Limited Personal Recourse Agreement dated as of April 15, 1998, between Xxxxxxx
X. Xxxxxxxx and EIF is hereby released in full and shall be of no further force
or effect and that Xxxxxxx X.
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Bachmann, in his individual capacity, shall be a third party beneficiary in
respect of this paragraph 23.
24. THIS AMENDMENT IS TO BE CONSTRUED UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
25. Except as expressly amended hereby, the Financing
Agreement remains in full force and effect. Any references to the Financing
Agreement in the Loan Documents shall refer to the Financing Agreement as
amended hereby.
(Signature page follows.)
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
ENERGY PARTNERS, LTD.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President and Chief Executive
Officer
ENERGY INCOME FUND, L.P.
By: EIF General Partner, L.L.C.,
its General Partner
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
A Managing Director
