FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is
entered into as of August 9, 2007, by and among PETROLEUM DEVELOPMENT
CORPORATION (the “Borrower”), CERTAIN SUBSIDIARIES OF THE BORROWER, as
Guarantors (the “Guarantors”), the LENDERS party hereto (the
“Lenders”) and JPMORGAN CHASE BANK, N.A., as Administrative Agent
(the
“Administrative Agent”). Unless the context otherwise requires
or unless otherwise expressly defined herein, capitalized terms used but
not
defined in this Amendment have the meanings assigned to such terms in the
Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS,
the Borrower, the Guarantors, the Administrative Agent and the Lenders have
entered into that certain Amended and Restated Credit Agreement dated as
of
November 4, 2005 (as amended, supplemented or otherwise modified from time
to
time, the “Credit Agreement”); and
WHEREAS,
the Borrower has requested that the Administrative Agent and the Lenders
amend
the Credit Agreement to among other things, modify certain convents, and
the
Administrative Agent and the Lenders have agreed to do so on the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, the
Borrower, the Guarantors, the Administrative Agent and the Lenders hereby
agree
as follows:
SECTION
1.
Amendments
to Credit Agreement. Subject to the satisfaction or waiver
in writing of each condition precedent set forth in Section 5 of this
Amendment, and in reliance on the representations, warranties, covenants
and
agreements contained in this Amendment, the Credit Agreement shall be amended
in
the manner provided in this Section 1.
1.1 Additional
Definitions. Section 1.01 of the Credit Agreement
shall be and it hereby is amended by inserting the following definitions
in
appropriate alphabetical order:
“Capital
Markets Event” means the receipt by Borrower of net proceeds of not less
than $200,000,000 from the issuance of Indebtedness of Borrower or Equity
Interests of Borrower on terms and conditions acceptable to the Required
Lenders
and with the prior written consent of Required Lenders.
1
“Eligible
Assignee” means any Person that qualifies as an assignee pursuant to
Section 11.04(b)(i); provided that, notwithstanding the foregoing,
“Eligible Assignee” shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.
“First
Amendment” means that certain First Amendment to Amended and Restated Credit
Agreement, dated August 9, 2007, by and among the Borrower, the Guarantors,
the Lenders and the Administrative Agent.
“Suspension
Period” means the period beginning August 9, 2007, and ending on
the earlier of (a) the occurrence of a Capital Market Event and
(b) July 1, 2008.
1.2 Amended
Definitions. Section 1.01 of the Credit Agreement
shall be and it hereby is amended by amending and restating the following
definitions to read in their entirety as follows:
“Applicable
Rate” means, with respect to any ABR Loan or Eurodollar Loan, or with
respect to the Unused Commitment Fees payable hereunder, as the case may
be, the
applicable rate per annum set forth below under the caption “ABR Spread”,
“Eurodollar Spread” or “Unused Commitment Fee Rate”, as the case may be, based
upon the Borrowing Base Usage applicable on such date, (a) for any day
other than during the Suspension Period:
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Borrowing
Base Usage:
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ABR
Spread
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Eurodollar
Spread
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Unused
Commitment Fee Rate
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Equal
to or greater than 90%
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0.375%
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1.875%
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0.375%
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Equal
to or greater than 75% and less than 90%
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0.125%
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1.625%
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0.375%
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Equal
to or greater than 50% and less than 75%
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0.000%
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1.375%
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0.375%
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Less
than 50%
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0.000%
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1.125%
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0.250%
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and
(b) for any day during the Suspension Period:
2
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Borrowing
Base Usage:
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ABR
Spread
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Eurodollar
Spread
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Unused
Commitment Fee Rate
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Equal
to or greater than 90%
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0.750%
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2.250%
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0.375%
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Equal
to or greater than 75% and less than 90%
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0.500%
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2.000%
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0.375%
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Equal
to or greater than 50% and less than 75%
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0.375%
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1.750%
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0.375%
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Less
than 50%
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0.375%
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1.500%
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0.250%
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Each
change in the Applicable Rate shall apply during the period commencing on
the
effective date of such change and ending on the date immediately preceding
the
effective date of the next change.
1.3 Termination
and Reduction of the Aggregate Revolving
Commitment. Section 2.02(d) of the Credit Agreement
shall be and it hereby is amended and restated in its entirety to read as
follows:
(d) With
respect to any sale, transfer or disposition of Borrowing Base Properties,
the
Borrowing Base shall be automatically reduced by an amount equal to the value
assigned to such Borrowing Base Properties by the Administrative Agent in
connection with the most recent Redetermination of the Borrowing Base preceding
the date of such sale (or in connection with the determination of the Initial
Borrowing Base with respect to any sale occurring prior to the first
Redetermination of the Borrowing Base).
1.4 Restricted
Payments. Section 7.06 of the Credit Agreement shall be and it
hereby is amended and restated in its entirety to read as follows:
Section
7.06. Restricted Payments. The Borrower will not,
nor will it permit any of its Restricted Subsidiaries to, declare or make,
or
agree to pay or make, directly or indirectly, any Restricted Payment, except
that (a) the Borrower may declare and pay dividends with respect to its Equity
Interests payable solely in additional shares of its common stock, (b) the
Borrower may make Restricted Payments pursuant to and in accordance with
stock
option plans or other benefit plans for management or employees of the Borrower
and its Restricted Subsidiaries in an aggregate amount not to exceed $5,000,000
in any fiscal year, (c) any Restricted Subsidiary may make Restricted Payments
to the Borrower or any Guarantor, and (d) at any time other than during the
Suspension Period and so long as no Default shall have occurred and be
continuing or would result from the making of such Restricted Payment, (i)
the
Borrower may declare and pay dividends with respect to its Equity Interests
during any fiscal year of the Borrower in an aggregate amount not to exceed
50%
of its Consolidated Net Income accrued during the period from the beginning
of
such fiscal year to the date such dividend is declared and (ii) provided
that
Borrowing Base Usage is less than 80% both before and after such Restricted
Payment, the Borrower may repurchase its Equity Interests.
3
1.5 Financial
Covenants (Consolidated Current Ratio). Section
7.11(a) of the Credit Agreement shall be and it hereby is amended and
restated in its entirety to read as follows:
(a) The
Borrower will not permit the Consolidated Current Ratio as of the end of
any
fiscal quarter ending on or after December 31, 2005 (other than any fiscal
quarter ending during the Suspension Period), to be less than 1.00 to
1.00.
1.6 Notices.
Clause (ii) of Section 11.01 of the Credit Agreement shall be
and they hereby are amended and restated in its entirety to read as
follows:
(ii) if
to the Administrative Agent or Issuing Bank, to JPMorgan Chase Bank, N.A.,
Mail
Code IL1-0010, 00 Xxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx, 00000-0000, Telecopy
No.:
(000) 000-0000, Attention: Xx Xxx, with a copy to JPMorgan Chase Bank, N.A.,
Mail Code TX2-S038, 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Telecopy No. (000)
000-0000, Attention: Jo Xxxxx Xxxxxxxxx;
SECTION
2.
Conditions. The
amendments to the Credit Agreement contained in Section 1 of this
Amendment shall be effective upon the satisfaction of each of the conditions
set
forth in this Section 2.
2.1 Execution
and Delivery. Each Credit Party, each Lender and the
Administrative Agent shall have executed and delivered this
Amendment.
2.2 Fees. The
Administrative Agent shall have received (a) for the benefit of the
Lenders, an upfront fee in an amount equal to $250,000 and
(b) all other fees and other amounts due and payable to Administrative
Agent and the Lenders on or prior to the date hereof, including all fees
due and
payable with respect to the Aggregate Commitment Increase described in
Section 2.4 hereof.
2.3 Assignments.
The assignments of a portion of the rights and
obligations under the Credit Agreement of JPMorgan Chase Bank, N.A. and BNP
Paribas to Wachovia Bank, N.A., pursuant to an Assignment and Assumption
shall
have occurred.
2.4 Aggregate
Commitment Increase. The Aggregate Commitment Increase to
$200,000,000 shall have become effective.
2.5 No
Default. No Default shall have occurred and be
continuing.
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2.6 Other
Documents. The Administrative Agent shall have received such
other instruments and documents incidental and appropriate to the transaction
provided for herein as the Administrative Agent or its special counsel may
reasonably request, and all such documents shall be in form and substance
satisfactory to the Administrative Agent.
SECTION
3. Representations
and Warranties of Borrower. To induce the Lenders to
enter into this Amendment, each Credit Party hereby represents and warrants
to
the Lenders as follows:
3.1 Reaffirmation
of Representations and Warranties/Further Assurances. After
giving effect to the amendments herein, each representation and warranty
of such
Credit Party contained in the Credit Agreement or in any other Loan Document
is
true and correct in all material respects on the date hereof (except to the
extent such representations and warranties relate solely to an earlier
date).
3.2 Corporate
Authority; No Conflicts. The execution, delivery and
performance by such Credit Party of this Amendment and all documents,
instruments and agreements contemplated herein are within such Credit Party’s
corporate or other organizational powers, have been duly authorized by necessary
action, require no action by or in respect of, or filing with, any court
or
agency of government and do not violate or constitute a default under any
provision of any applicable law or other agreements binding upon such Credit
Party or result in the creation or imposition of any Lien upon any of the
assets
of such Credit Party.
3.3 Enforceability. This
Amendment constitutes the valid and binding obligation of such Credit Party
enforceable in accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor’s rights generally, and (ii) the availability of equitable remedies may
be limited by equitable principles of general application.
SECTION
4. Miscellaneous.
4.1 Reaffirmation
of Loan Documents and Liens. Any and all of the terms and
provisions of the Credit Agreement and the Loan Documents shall, except as
amended and modified hereby, remain in full force and effect. Each
Credit Party hereby agrees that the amendments and modifications herein
contained shall in no manner affect or impair the liabilities, duties and
obligations of any Credit Party under the Credit Agreement and the other
Loan
Documents or the Liens securing the payment and performance
thereof.
4.2 Parties
in Interest. All of the terms and provisions of this
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.3 Legal
Expenses. Each Credit Party hereby agrees to pay all
reasonable fees and expenses of special counsel to the Administrative Agent
incurred by the Administrative Agent in connection with the preparation,
negotiation and execution of this Amendment and all related
documents.
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4.4 Counterparts. This
Amendment may be executed in one or more counterparts and by different parties
hereto in separate counterparts each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. However, this
Amendment shall bind no party until each Credit Party, the Lenders (or at
least
the required percentage thereof), and the Administrative Agent have executed
a
counterpart. Delivery of photocopies of the signature pages to this
Amendment by facsimile or electronic mail shall be effective as delivery
of
manually executed counterparts of this Amendment.
4.5 Complete
Agreement. THIS AMENDMENT, THE CREDIT AGREEMENT, AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS
OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
4.6 Headings. The
headings, captions and arrangements used in this Amendment are, unless specified
otherwise, for convenience only and shall not be deemed to limit, amplify
or
modify the terms of this Amendment, nor affect the meaning thereof.
[Remainder
of Page Intentionally Blank. Signature Pages
Follow.]
6
IN
WITNESS WHEREOF, the parties have caused this First Amendment to
Amended and Restated Credit Agreement to be duly executed as of the date
first
above written.
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BORROWER:
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PETROLEUM
DEVELOPMENT CORPORATION
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By:
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Name:
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Title:
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GUARANTOR:
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XXXXX
NATURAL GAS COMPANY
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By:
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Name:
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Title:
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Signature
Page
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JPMORGAN
CHASE BANK, N.A. (successor by merger to Bank One, N.A. (Illinois)),
individually and as Administrative Agent,
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By:
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Jo
Xxxxx Xxxxxxxxx
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Vice
President
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Signature
Page
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BNP
PARIBAS,
as
a Lender and as Syndication Agent
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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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Signature
Page
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WACHOVIA
BANK, N.A., as a Lender
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By:
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Xxxxxx
Xxxxxxx, Director
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Signature
Page
