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EXHIBIT 10.10
SECOND AMENDMENT TO
LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (hereinafter referred to as
the "Amendment") executed as of the 11th day of June, 1996, by and among the
HUGOTON ENERGY CORPORATION, a Kansas corporation ("Hugoton"), HUGOTON
EXPLORATION CORPORATION, a Kansas corporation ("Exploration"), AMGAS
CORPORATION, a Kansas corporation ("AmGas"), XXXXXXX GATHERING, INC., a
Delaware corporation ("Xxxxxxx") and HEC TRADING COMPANY, a Texas corporation
("Trading") (Hugoton, Exploration, AmGas, Xxxxxxx and Trading being hereinafter
referred to as the "Borrowers" and individually as a "Borrower") and BANK ONE,
TEXAS, N.A., a national banking association ("Bank One"), TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association ("TCB"), BANK OF MONTREAL
("BOM"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association
("Xxxxx Fargo"), MEESPIERSON N.V., a company incorporated under the laws of the
Netherlands ("Mees"), CREDIT LYONNAIS CAYMAN ISLAND BRANCH ("CL") and BANK OF
SCOTLAND, a Scottish banking corporation ("BOS") (Bank One, TCB, BOM, Xxxxx
Fargo, Xxxx, XX and BOS each in their capacity as a lender hereunder together
with each and every future holder of any note issued pursuant to this Agreement
are hereinafter collectively referred to as "Banks", and individually as
"Bank") and Bank One, as "Agent" and TCB, as "Co-Agent".
W I T N E S S E T H:
WHEREAS, as of September 7, 1995 the Borrowers and the Banks entered
into a Loan Agreement (the "Loan Agreement"), pursuant to the terms of which
the Banks agreed to provide a reducing revolver facility to Borrowers in
amounts of up to $250,000,000.00;
WHEREAS, as of January 22, 1996, Borrowers and Bank entered into a
First Amendment to Loan Agreement (the "First Amendment") to add Trading as a
Borrower hereunder and make certain other changes to the Loan Agreement; and
WHEREAS, Borrowers and Banks have agreed to make certain additional
amendments to the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Unless otherwise defined herein, terms used in this Amendment
shall have the meanings assigned to such terms in the Loan Agreement.
2. Section 12(f) of the Loan Agreement is hereby deleted in its
entirety and the following inserted in lieu thereof:
"(f) Dividends. The Borrowers will not declare or pay any
dividend, purchase, redeem or otherwise acquire for value any of its
stock now or hereafter outstanding, return any capital to
stockholders, or make any
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distribution of its assets to its stockholders as such, or permit any
of its Subsidiaries to purchase or otherwise acquire for value any of
its stock, except the foregoing shall not apply to (i) dividends by
Hugoton, not exceeding in any fiscal year an amount equal to 50% of
Hugoton's net income for such fiscal year as determined in accordance
with GAAP, and (ii) purchase by Hugoton of up to 1,000,000 shares of
its common stock for a price per share of not more than $10.00;
provided, however, that immediately before and after giving effect to
any such transaction no (i) default or Event of Default or (ii)
Borrowing Base Deficiency, shall exist."
3. As of the date of this Amendment, the Borrowing Base shall be
$135,000,000 and the Monthly Commitment Reduction shall be $0; provided,
however, that for the period beginning on the date of this Amendment and ending
on the next Determination Date, the last $5,000,000 of availability under the
Revolving Commitment may be used by Borrowers only for the acquisition of
proved-developed producing oil and gas reserves.
4. The obligation of the Banks hereunder to amend the Loan
Agreement as set forth above shall be subject to the following conditions
precedent:
(i) Execution and Delivery. Borrowers shall have executed
and delivered to Agent this Amendment and other required documents,
all in form and substance satisfactory to Banks;
(ii) Corporate Resolution. Agent shall have received
appropriate certified corporate resolutions for the Borrowers;
(iii) Other Documents. Agent shall have received such other
instruments and documents incidental and appropriate to the
transaction provided for herein as Agent or its counsel may reasonably
request, and all such documents shall be in form and substance
satisfactory to Agent; and
(iv) Legal Matters Satisfactory. All legal matters incident
to the consummation of the transactions contemplated hereby shall be
satisfactory to special counsel for Agent retained at the expense of
Borrowers.
5. The representations, warranties and affirmative and negative
covenants of Borrowers contained in Sections 9, 11 and 12 of the Loan
Agreement are incorporated herein by reference for all purposes. Except as
modified by this Amendment, Borrowers hereby restate and reaffirm each such
representation, warranty and affirmative and negative covenants.
6. Except to the extent its provisions are specifically amended,
modified or superseded by the First Amendment or this Amendment, the Loan
Agreement and all
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provisions thereof shall remain in full force and effect, and the same are in
all respects hereby ratified, confirmed and approved by Borrowers and the
Banks.
7. The Borrowers agree to indemnify and hold harmless the Banks
and their respective officers, employees, agents, attorneys and representatives
(singularly, an "Indemnified Party", and collectively, the "Indemnified
Parties") from and against any loss, cost, liability, damage or expense
(including the reasonable fees and out-of-pocket expenses of counsel to the
Banks, including all local counsel hired by such counsel) ("Claim") incurred by
the Banks in investigating or preparing for, defending against, or providing
evidence, producing documents or taking any other action in respect of any
commenced or threatened litigation, administrative proceeding or investigation
under any federal securities law, federal or state environmental law, or any
other statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon any acts,
practices or omissions or alleged acts, practices or omissions of the Borrowers
or their agents or arises in connection with the duties, obligations or
performance of the Indemnified Parties in negotiating, preparing, executing,
accepting, keeping, completing, countersigning, issuing, selling, delivering,
releasing, assigning, handling, certifying, processing or receiving or taking
any other action with respect to the Loan Documents and all documents, items
and materials contemplated thereby even if any of the foregoing arises out of
an Indemnified Party's ordinary negligence. The indemnity set forth herein
shall be in addition to any other obligations or liabilities of the Borrowers
to the Banks hereunder or at common law or otherwise, and shall survive any
termination of this Agreement, the expiration of the Loan and the payment of
all indebtedness of the Borrowers to the Banks hereunder and under the Notes,
provided that the Borrowers shall have no obligation under this Section 7 to
the Bank with respect to any of the foregoing arising out of the gross
negligence or willful misconduct of the Banks. The parties intend for the
provisions of this Section 7 to apply to and protect each Indemnified Party
from the consequences of strict liability imposed or threatened to be imposed
on any Indemnified Party as well as from the consequences of its own
negligence, whether or not that negligence is the sole, contributing, or
concurring cause of any Claim.
8. THIS WRITTEN SECOND AMENDMENT TO LOAN AGREEMENT REPRESENTS 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9. This Amendment may be executed in a number of identical
separate counterparts, each of which for all purposes is to be deemed an
original, but all of which shall constitute, collectively, one agreement. No
party to this Amendment shall be bound hereby until a counterpart of the
Amendment has been executed by all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed on the date first above written.
BORROWERS:
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HUGOTON ENERGY CORPORATION
By: /s/ W. XXXX XXXXXX
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W Xxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
HUGOTON EXPLORATION CORPORATION
By: /s/ W. XXXX XXXXXX
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W. Xxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
AMGAS CORPORATION
By: /s/ W. XXXX XXXXXX
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W. Xxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
XXXXXXX GATHERING, INC.
By: /s/ W. XXXX XXXXXX
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W. Xxxx Xxxxxx,
Executive Vice President and
Chief Financial Officer
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HEC TRADING COMPANY
By: /s/ W. XXXX XXXXXX
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W. Xxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
AGENT:
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BANK ONE, TEXAS, N.A
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, Vice President
CO-AGENT:
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TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx, Vice President
BANKS:
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BANK ONE, TEXAS, N.A.
a national banking association
By: /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Vice President
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ XXXX XXXXX
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Xxxx Xxxxx, Vice President
BANK OF MONTREAL
BY: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Director
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, Vice President
MEESPIERSON N.V.
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx, Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ PASCAL POUPELLE
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Pascal Poupelle, Senior Vice President
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BANK OF SCOTLAND
By: /s/ XXXXXXXXX XXXXXXXX
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Xxxxxxxxx Xxxxxxxx, Vice President
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