FIFTH AMENDMENT TO AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT
Exhibit
10.38
Execution
Copy
FIFTH
AMENDMENT TO AMENDED AND RESTATED
This
FIFTH AMENDMENT TO AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT (“Amendments”), dated
as of December 11, 2009, is by and among Energy XXI Gulf Coast, Inc., a Delaware
corporation (the “Borrower”), the
lenders party to the First Lien Credit Agreement described below (the “Lenders”), and The
Royal Bank of Scotland plc, as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”), and the other parties in the capacities herein
identified.
RECITALS
WHEREAS,
the Borrower, the Lenders, the Administrative Agent and certain other Persons
are parties to the Amended and Restated First Lien Credit Agreement, dated as of
June 8, 2007, as modified by the Consent Regarding Amended and Restated First
Lien Credit Agreement dated as of July 27, 2007, as amended by that certain
First Amendment to Amended and Restated First Lien Credit Agreement dated
effective as of November 19, 2007, as amended by that certain Waiver, Consent
and Second Amendment to Amended and Restated First Lien Credit Agreement dated
effective as of December 1, 2008, as amended by the Third Amendment to Amended
and Restated First Lien Credit Agreement dated as of April 6, 2009, as modified
by the Waiver and Consent to Amended and Restated First Lien Credit Agreement
dated as of June 30, 2009 and as amended and modified by the Waiver, Consent and
Fourth Amendment to Amended and Restated First Lien Credit Agreement dated as of
September 11, 2009 (as so modified, and as amended, supplemented, amended and
restated or otherwise modified from time to time, the “First Lien Credit
Agreement”); and
WHEREAS,
the Borrower has requested that the Administrative Agent, the Issuer, and the
Lenders amend the First Lien Credit Agreement in certain respects as set forth
herein.
NOW
Therefore, in consideration of the premises and the mutual covenants,
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
Section
1. Definitions.
Capitalized terms used herein but not defined herein shall have the meanings as
given them in the First Lien Credit Agreement, unless the context otherwise
requires.
Section
2. Amendments to First Lien
Credit Agreement. The First Lien Credit Agreement is hereby amended as
follows:
(a) Section 2.2. The
first sentence of Section 2.2 of the First Lien Credit Agreement is hereby
amended and restated in its entirety as follows:
“Unless
previously terminated, the Loan Commitments shall terminate on the Loan
Commitment Termination Date and on such date the Loan Commitment Amount shall be
zero and the Letter of Credit Commitment shall terminate on the Letter of Credit
Commitment Termination Date and on such date the Letter of Credit Commitment
Amount shall be zero.
(b) Section 2.6. Section
2.6 of the First Lien Credit Agreement is hereby amended and restated in its
entirety as follows:
“SECTION
2.6. Issuance Procedures and
Provisions. By delivering to the Administrative Agent an Issuance Request
on or before noon, New York time, on a Business Day, the Borrower may from time
to time irrevocably request on not less than three nor more than ten Business
Days’ notice, in the case of an initial issuance of a Letter of Credit and not
less than three Business Days’ prior notice, in the case of a request for the
extension of the Stated Expiry Date of a standby Letter of Credit (in each case,
unless a shorter notice period is agreed to by the Issuer, in its sole
discretion), that an Issuer issue, or extend the Stated Expiry Date of, a Letter
of Credit in such form as may be requested by the Borrower and approved by such
Issuer, solely for the purposes described in Section 7.1.7; provided that no
extension shall (i) cause a Letter of Credit to expire on a date that is later
than the Letter of Credit Commitment Termination Date or (ii) (unless otherwise
agreed to by the Issuer in its sole discretion) be for a period in excess of one
year. Each Letter of Credit shall by its terms be stated to expire on a date
(its “Stated Expiry
Date”) no later than the earlier to occur of (a) the Letter of Credit
Commitment Termination Date or (b) (unless otherwise agreed to by an Issuer, in
its sole discretion), one year from the date of its issuance; provided, however,
that a Letter of Credit may, upon the request of the Borrower and subject to the
agreement of the Issuer to the terms thereof, include a provision whereby unless
the Issuer shall notify the beneficiary to the contrary such Letter of Credit
may be renewed automatically for additional consecutive periods of 12 months or
less (but in no event beyond the Letter of Credit Commitment Termination Date).
Each Issuer will make available to the beneficiary thereof the original of the
Letter of Credit that it issues.”
(c) The
Disclosure Schedule to the First Lien Credit Agreement is hereby amended by
deleting Item 6.19(a) thereof in its entirety and replacing it in its entirety
with Item 6.19(a) to the Disclosure Schedule attached hereto as Annex
I.
Section
3. Conditions to
Effectiveness. This Amendment shall be deemed effective (subject to the
conditions herein contained) as of the date (the “Effective Date”) upon
the Administrative Agent’s receipt of counterparts hereof duly executed by the
Borrower, the Administrative Agent, the Issuers and the Required
Lenders.
Section
4. Redetermination of Borrowing
Base. The Borrower and the Lenders hereby agree that effective as of the
Effective Date, the Borrowing Base shall be equal to $199,000,000 until such
time as the Borrowing Base is redetermined or otherwise adjusted pursuant to the
terms of the First Lien Credit Agreement. The Borrower and the Lenders hereby
agree that this determination of the Borrowing Base shall be deemed to be the
determination as required under Section 2.8.2 of the
First Lien Credit Agreement in regards to the Reserve Report dated June 30,
2009.
2
Section
5. Representations and
Warranties. The Borrower hereby represents and warrants that
after giving effect hereto:
(a) the
representations and warranties of the Obligors contained in the Loan Documents
(other than Section 6.17 of the First Lien Credit Agreement solely with respect
to the Xxxxxx Hedging Agreement (as defined in the Second Amendment)) are true
and correct in all material respects, other than those representations and
warranties that expressly relate solely to a specific earlier date, which shall
remain correct in all material respects as of such earlier date;
(b) the
execution, delivery and performance by the Borrower and each other Obligor of
this Amendment and the other Loan Documents have been duly authorized by all
necessary corporate or other action required on their part and this Amendment,
along with the First Lien Credit Agreement and other Loan Documents, constitutes
the legal, valid and binding obligation of each Obligor a party thereto
enforceable against them in accordance with its terms, except as its
enforceability may be affected by the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors
generally;
(c) neither
the execution, delivery and performance of this Amendment by the Borrower and
each other Obligor, the performance by them of the First Lien Credit Agreement
nor the consummation of the transactions contemplated hereby does or shall
contravene, result in a breach of, or violate (i) any provision of any Obligor’s
certificate or articles of incorporation or bylaws or other similar documents,
or agreements, (ii) any law or regulation, or any order or decree of any court
or government instrumentality, or (iii) any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which any Obligor or any of its
Subsidiaries is a party or by which any Obligor or any of its Subsidiaries or
any of their property is bound, except in any such case to the extent such
conflict or breach has been waived by a written waiver document, a copy of which
has been delivered to Administrative Agent on or before the date
hereof;
(d) no
Material Adverse Effect has occurred since June 30, 2009; and
(e) no
Default or Event of Default or Borrowing Base Deficiency has occurred and is
continuing.
Section
6. Loan Document:
Ratification.
(a) This
Amendment is a Loan Document.
(b) The
Borrower and each other Obligor hereby ratifies, approves and confirms in every
respect all the terms, provisions, conditions and obligations of the First Lien
Credit Agreement and each of the other Loan Documents (other than the Xxxxxx
Hedging Agreement (as defined in the Second Amendment)), including without
limitation all Mortgages, Security Agreements, Guaranties, Control Agreements
and other Security Documents, to which it is a party.
3
Section
7. Costs And Expenses.
As provided in Section 10.3 of the First Lien Credit Agreement, the Borrower
agrees to reimburse Administrative Agent for all fees, costs, and expenses,
including the reasonable fees, costs, and expenses of counsel or other advisors
for advice, assistance, or other representation, in connection with this
Amendment and any other agreements, documents, instruments, releases,
terminations or other collateral instruments delivered by the Administrative
Agent in connection with this Amendment.
Section
8. GOVERNING LAW. THIS
AMENDMENT SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES
OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section
9. Severability. Any
provision of this Amendment that is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Amendment or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section
10. Counterparts. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any party hereto may
execute this Amendment by signing one or more counterparts. Any signature hereto
delivered by a party by facsimile or electronic transmission shall be deemed to
be an original signature hereto.
Section
11. No Waiver. The
express waivers set forth herein are limited to the extent expressly provided in
this Amendment and, except as expressly set forth in this Agreement, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any default of the Borrower or any other Obligor or any right, power
or remedy of the Administrative Agent or the other Secured Parties under any of
the Loan Documents, nor constitute a waiver of (or consent to departure from)
any terms, provisions, covenants, warranties or agreements of any of the Loan
Documents. The parties hereto reserve the right to exercise any rights and
remedies available to them in connection with any present or future defaults
with respect to the First Lien Credit Agreement or any other provision of any
Loan Document.
Section
12. Successors and
Assigns. This Amendment shall be binding upon the Borrower and
its successors and permitted assigns and shall inure, together with all rights
and remedies of each Secured Party hereunder, to the benefit of each Secured
Party and the respective successors, transferees and assigns.
Section
13. Entire
Agreement. THIS AMENDMENT, THE FIRST LIEN CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature
Pages Follow]
4
In
Witness Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of the
date first written above.
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BORROWER:
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ENERGY
XXI GULF COAST, INC.
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By:
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/s/ Xxx Xxxxxxxx
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Xxx
Xxxxxxxx
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| Title: |
President
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Annex
I
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ADMINISTRATIVE AGENT,
ISSUERS AND LENDERS:
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THE
ROYAL BANK OF SCOTLAND plc, as
Administrative
Agent, Issuer and Lender
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By:
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/s/ Xxxx Xxxxxxx
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Name:
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Xxxx
Xxxxxxx
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Title:
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Vice
President
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BNP
PARIBAS, as Issuer and Lender
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Managing
Director
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By:
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/s/
XXXX XXXXXXXX
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Name:
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XXXX
XXXXXXXX
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Title:
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DIRECTOR
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BMO
CAPITAL MARKETS FINANCING, INC., as Lender
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By:
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Name:
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Title:
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COMPASS
BANK (as successor in interest to Guaranty Bank, FSB), as
Lender
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By:
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Name:
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Title:
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AMEGY
BANK NATIONAL ASSOCIATION, as Lender
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By:
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/s/ Xxxx Xxxxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxxxx
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Title:
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Assistant
Vice President
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XXX
XXXX XX XXXX XXXXXX, as Lender
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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Managing
Director
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XXXXXX
COMMERCIAL PAPER INC., as Lender
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By:
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Name:
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Title:
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0
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XXXXXXX
XXXXXXXX (XXXXX) LLC, as Lender
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By:
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/s/ XXXXX X. XXXXX
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Name:
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XXXXX
X. XXXXX
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Title:
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AUTHORIZED
SIGNATORY
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CAPITAL
ONE, NATIONAL ASSOCIATION,
as
Lender
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By:
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/s/ Xxxxx Xxxx
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Name:
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Xxxxx
Xxxx
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Title:
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Senior
Vice President
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NATIXIS,
as Lender
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By:
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/s/ Liana Tchernysheva
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Liana
Tchernysheva
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Director
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By:
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/s/ Xxxxx X. Xxxxxxx,
III
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Xxxxx
X. Xxxxxxx, III
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Managing
Director
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ALLIED
IRISH BANKS p.l.c., as Lender
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By:
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/s/ Xxxxxx Xxxx
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Name:
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Xxxxxx
Xxxx
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Title:
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Vice
President
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By:
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/s/ Xxxxx
Xxxxxxxx
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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Assistant
Vice President
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CREDIT
SUISSE AG, CAYMAN ISLANDS
BRANCH
as Lender
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By:
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/s/ Xxxxxxx Xxxxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxxxx
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Title:
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Vice
President
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx
Xxxxxxxx
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Title:
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Associate
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UBS
LOAN FINANCE LLC, as Lender
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Associate
Director
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By:
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/s/ Xxxx
X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Associate
Director
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WHITNEY
NATIONAL BANK, as Lender
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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Officer
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ACKNOWLEDGED
AND AGREED AS OF
THE
DATE FIRST ABOVE WRITTEN:
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ENERGY
XXI GOM, LLC
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By:
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/s/ Xxx Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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President
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ENERGY
XXI TEXAS ONSHORE, LLC
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By:
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/s/ Xxx Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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President
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ENERGY
XXI ONSHORE, LLC
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By:
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/s/ Xxx Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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President
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16
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ACKNOWLEDGED
AND AGREED AS OF
THE
DATE FIRST ABOVE WRITTEN IN ITS
CAPACITY
AS GUARANTOR UNDER ITS
LIMITED
RECOURSE GUARANTY AND
GRANTOR
UNDER ITS PLEDGE
AGREEMENT
AND IRREVOCABLE PROXY
DELIVERED
IN CONNECTION WITH THE
FIRST
LIEN CREDIT AGREEMENT:
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ENERGY
XXI U.S.A., INC
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By:
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/s/ Xxx Xxxxxxxx
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Name:
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Xxx
Xxxxxxxx
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Title:
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President
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17
ANNEX
I
Item
6.19(a) of Disclosure Schedule
DEPOSIT
ACCOUNTS OF BORROWER AND EACH SUBSIDIARY
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Obligor
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Depository
Institution
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Account
Number
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Borrower
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Compass
Bank
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3804623571
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Borrower
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Amegy
Bank National Association
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0053059839
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Borrower
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Amegy
Bank National Association
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0953059839
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EXXI
GOM
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Compass
Bank
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3804623704
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EXXI
GOM
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Compass
Bank
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3804629479
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EXXI
GOM
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Compass
Bank
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3804626392
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Energy
XXI Onshore, LLC
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Compass
Bank
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3804623696
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Energy
XXI Gulf Coast, Inc.
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The
Royal Bank of Scotland plc
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RBSEXC
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Annex
I
