THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit
4.1
THIRD
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This
THIRD AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this
"Amendment"), dated as of November 6, 2007 (this
"Effective Date"), is by and among Gastar Exploration Ltd., an
Alberta corporation (the "Company"), Field Point III, Ltd., a
Delaware limited liability partnership ("Field III"), Field
Point IV, Ltd., a Delaware limited partnership ("Field IV"),
SPF CDO I, Ltd., a Delaware limited partnership ("SPF I"),
Wayzata Recovery Fund, LLC, a Delaware limited liability company
("Wayzata"), Cyrus Opportunities Master Fund II, Ltd., a
Delaware limited partnership ("Cyrus" and together with SPCP,
SPF I and Wayzata, the "Buyers" with each being a
"Buyer"). Capitalized terms used in this Amendment
but not defined herein have the meaning set forth in the Securities Purchase
Agreement (as defined below).
PRELIMINARY
STATEMENT
WHEREAS,
Company, Promethean Asset Management L.L.C., a Delaware limited liability
company, as collateral agent ("Former Collateral Agent"), HFTP
Investments LLC, a Delaware limited liability company ("HFTP"),
Promethean I Master Ltd. (formerly known as GAIA Offshore Master Fund, Ltd.),
a
Cayman Islands corporation ("Prom I"), Promethean II Master,
L.P., a Cayman Islands exempted limited partnership ("Prom
II"), Leonardo, L.P., a Cayman Islands limited partnership
("Xxxxxxxx" and together with HFTP, Prom I, and Prom II,
"Sellers" with each being a "Seller"),
Wayzata, for itself and as successor in interest to Wayland Recovery Fund,
LLC,
and Cyrus, as successor in interest to Cyrus Opportunities Fund, L.P. and Cyrus
Opportunities II, L.P., were parties to the Securities Purchase Agreement dated
as of June 16, 2005, as amended by the First Amendment to Securities Purchase
Agreement dated September 6, 2005 and the Consent and Omnibus Amendment to
Transaction Documents dated January 5, 2006 (as so amended, the
"Securities Purchase Agreement"), whereby, among other things,
initial and additional senior secured notes issued by the Company were purchased
for an aggregate principal amount of $73,000,000 (the
"Notes");
WHEREAS,
pursuant to a Note Sale Agreement dated May 18, 2007 (the
"NSA"), each of SPF I and SPCP Group, LLC, a Delaware limited
liability company ("SPCP"), purchased, among other things, the
rights, title and interests of the Sellers in and to the Notes held by such
Sellers and became a "Buyer" for purposes of the Securities Purchase Agreement;
WHEREAS,
pursuant to certain assignment agreements, SPCP assigned all of its interests
in
the Notes to each of Field III and Field IV, and each of Field III and Field
IV
and became a "Buyer" for purposes of the Securities Purchase
Agreement
WHEREAS,
in connection with the NSA, Former Collateral Agent resigned and each Buyer
appointed Silver Point Finance, LLC as the new Collateral Agent (the
"Collateral Agent") under the Securities Purchase Agreement and
related security documents; and
WHEREAS,
the Company and each Buyer desires to amend the Securities Purchase Agreement
as
provided herein;
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1. Amendments to
Securities Purchase Agreement:
(a) The
fourth sentence of Section 3(a) of the Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
As
used
in this Agreement, “Material Adverse Effect” means any material
adverse effect on (I) the business, properties, assets, operations, results
of
operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole, (II) the transactions contemplated hereby, (III)
the agreements and instruments to be entered into in connection herewith, (IV)
the authority or ability of the Company or any Subsidiary to perform its
obligations under the Transaction Documents or (V) the Liens of the Collateral
Agent (as defined in the Security Agreement referred to in the Notes) on the
Collateral (as defined in the Security Agreement) or the priority of such
Liens.
(b) The
last sentence of Section 3(s) of the Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
“Property
Material Adverse Effect” means any material adverse effect on the
business, properties, assets, operations, results of operations or condition
(financial or otherwise) of any Real Property of the Company and its
Subsidiaries, taken as a whole, that could (alone or together with any other
events, occurrences and/or conditions) cause or result in (x) a decrease of
at
least $2,500,000 of revenues from production of the Company and its
Subsidiaries, taken as a whole or (y) a diminution in the value of any Real
Property by at least $2,500,000.
(c) Section
4(c) of the Securities Purchase Agreement is hereby amended and restated in
its
entirety to read as follows:
Reporting
Status. Until the latest of (i) the date that is one (1) year after
the date as of which the Investors (as that term is defined in the Registration
Rights Agreement may sell all of the Shares issued hereunder without
restriction pursuant to rule 144(k) promulgated under the 1933 Act (or successor
thereto), (ii) the date on which no Notes remain outstanding, (iii) the date
that is the last day on which any Notes or Shares may be issued hereunder,
the
Company shall timely file all periodic reports or current reports described
in
Section 7(a)(vii) of the Note that are required to be filed pursuant to
applicable securities laws in the United States, and the Company shall not
terminate its status as an issuer required to file Securities Law Documents
(excluding those to be filed in Canada) under applicable laws in the United
States even if such laws would otherwise permit such termination; provided,
however, that the Company shall not be obligated hereby to maintain such status
at any time after a Change of Control, so long as no Notes are outstanding
and
no Notes may be issued hereunder.
(d) The
penultimate sentence of Section 4(i) of the Securities Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
As
soon
as available but in any event on or before each of (i) the date on which the
Company is required to file its Periodic Report on Form 10-K and (ii) the date
on which the Company is required to file its Periodic Report on Form 10-Q for
the quarter ending June 30th of each
year (as
the date for such filings may be extended as permitted by Rule 12b-25 under
the
1934 Act pursuant to a timely filed Form 12b-25), the Company shall furnish
to
the Collateral Agent and, upon written request, any Buyer, an Independent
Reserve Report (as defined in the Notes) dated effective as of the preceding
December 31 or June 30, as applicable; provided, however, that any
such request by such Buyer shall constitute a waiver, with respect to any
material non-public information regarding the Company and its Subsidiaries
contained in such Independent Reserve Report, of the restriction herein on
the
Company's disclosure to a Buyer of material non-public information.
(e) Section
4(n), clause (a)(VI), of the Securities Purchase Agreement is hereby amended
and
restated in its entirety to read as follows:
(VI)
reimbursement obligations at any one time in respect of letters of credit or
lines of credit issued by one or more financial institutions for the account
of
the Company or any of its Subsidiaries in connection with the Company’s
establishment and maintenance of a Hedged (as defined in Section 4(r)) position
with respect to, at any time, a maximum of 75% of the Company’s estimate of its
proved producing oil and gas reserves anticipated to be produced for the
succeeding 24 calendar months on a rolling 24 calendar-month basis, so long
as
the aggregate amount of all such letters of credit and lines of credit does
not
exceed $5,000,000 at any one time.
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(f) Section
4(o), clause (i), of the Securities Purchase Agreement is hereby amended and
restated in its entirety to read as follows
(i)
except for Permitted Investments (as defined herein) in which the holders of
the
Notes have a valid, perfected first priority security interest, make any loans
to, or investments in, any other person or entity, including through lending
money, deferring the purchase price of property or services (other than trade
accounts receivable on terms of ninety (90) days or less), purchasing any note,
bond (excluding surety and similar bonds obtained by the Company and its
Subsidiaries in the ordinary course of their business to the extent permitted
by
clause (a)(IV) of Section 4(n)), debenture or similar instrument, entering
into
any letter of credit (except as permitted by clause (a)(VI) or (a)(VII) of
Section 4(n)), guaranteeing (or taking any action that has the effect of
guaranteeing) any obligations of any other person or entity, or acquiring any
equity securities of, or other ownership interest in, or making any capital
contribution to any other entity (provided, however, that, (A) the
Company and its Subsidiaries may make capital contributions to (1) domestic
Subsidiaries so long as the Company and its Subsidiaries comply with Section
4(t)(vi) and (2) foreign Subsidiaries so long as the Company and its
Subsidiaries comply with Section 4(t)(vi) and the amount of all capital
contributions made to foreign Subsidiaries does not exceed $7,500,000 in the
aggregate and (B) the Company and its U.S. and Canadian Subsidiaries may make
loans to each other to the extent the incurrence of the Indebtedness represented
by such loans would be permitted by Section 4(n)(a)(III) and not otherwise
be prohibited by Section 4(n)),
(g) Section
4(o), clause (ii), of the Securities Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
(ii) invest
in, participate in, lease, purchase, obtain or otherwise acquire any real
property, facilities, or oil, gas or other mineral drilling, exploration or
development rights, concessions, working interests or participation interests
(collectively, "Interests"), and shall not have done any of the
foregoing since April 30, 2005, unless (A) with respect to Interests located
in
Australia, all investments, participations, leases, purchases or acquisitions
together with capital contributions permitted under Section 4(o)(i) and made
to
foreign Subsidiaries organized under the laws of Australia do not exceed
$50,000,000 in the aggregate at any one time and such Interests remain free
and
clear of any Lien in favor of any third party (other than Permitted Liens),
(B)
with respect to Interests located in Kansas, California or Canada, the Buyers
or
Collateral Agent are provided a valid, perfected first priority security
interest in such Interests in accordance with Section 4(t)(vii) of this
Agreement and (C) with respect to any other Interests, the Buyers or the
Collateral Agent are provided with a valid, perfected first priority security
interest in such Interests on or prior to the date that is (I) ten (10) days
after the date on which the investments, participations, leases,
purchases or acquisitions exceed $2,000,000 in the aggregate at any one time
and
(II) concurrently with any investment, participation, lease, purchase or
acquisition that individually exceeds $2,000,000,
(h) Section
4(p) of the Securities Purchase Agreement is hereby amended and restated in
its
entirety to read as follows:
Restriction
on Purchases, Payments or Dividends. From the date of this
Agreement until the first date following the Initial Closing Date on which
no
Notes are outstanding, the Company shall not, and shall not permit any of its
Subsidiaries to:
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(i) declare,
set aside or pay any dividends on or make any other distributions (whether
in
cash, stock, equity securities or property) in respect of any capital stock
(including the Common Shares as defined in the Notes) or issue or authorize
the
issuance of any other securities in respect of, in lieu of, or in substitution
for any capital stock or establish or set any record date with respect to any
of
the foregoing; provided, however that:
(A) any
Subsidiary may declare, set aside or pay any dividends on or make any other
distributions (whether in cash, stock, equity securities or property) in respect
of any of its capital stock that is held solely by the Company or by a U.S.
or
Canadian Subsidiary so long as (1) all of the equity of such Subsidiary
(excluding directors' qualifying shares to the extent that the issuance thereof
is required by law), is controlled and directly or indirectly owned by the
Company, (2) such Subsidiary is party to the Guaranty and the Security
Agreement, and (3) the holders of the Notes have a valid, perfected first
priority security interest in substantially all of the assets of such Subsidiary
(other than assets located in Australia or as provided in Section
4(o)(ii));
(B) the
Company may issue or authorize the issuance of any preferred stock with the
prior written consent of the holders of at least two-thirds (2/3) of the
aggregate principal of the Notes then outstanding (which consent will not be
unreasonably withheld); and
(C) the
Company may declare cash dividends on preferred stock of the Company so long
as
the Company has delivered an officer's certificate certifying that no Default
(as defined in Section 4(u)(i)) exists or would be caused thereby and
demonstrating that, immediately before and after giving effect to such dividend,
no Reserve Test Failure exists or would exist, or
(ii) purchase,
redeem or otherwise acquire, directly or indirectly, any shares in the Company's
capital or any shares of the capital stock of any of its Subsidiaries, except
repurchases of unvested shares at cost in connection with the termination of
the
employment relationship with any employee pursuant to share option or purchase
agreements in effect on the date of this Agreement, or cashless exercise of
options by employees under existing share options or purchase agreements, in
each case as set forth on Schedule 3(c).
(i) The
first sentence of Section 4(r) of the Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
Except
as
set forth in the following sentence, none of the Company’s estimate of its oil
and gas reserves shall be protected from price fluctuations using derivatives,
fixed price agreements and/or volumetric production payments
("Hedged"). As of each date
(a “Determination Date”) that is the end of a quarterly or
annual period covered by a Periodic Report filed, or required to be filed,
by
the Company with the SEC or under Canadian Securities Laws, as the case may
be,
from the date of this Agreement until the first date following the Initial
Closing Date on which no Notes are outstanding, the Company may maintain a
Hedged position with respect to no more than 75% of the Company’s estimate of
its proved producing oil and gas reserves anticipated to be produced for each
rolling 24-month period commencing immediately after such Determination
Date.
(j) Section
4(t)(i) and Section 4(t)(ii) of the Securities Purchase Agreement is hereby
amended and restated in their entirety to read as follows:
(i) All
Production Proceeds (as defined in the Mortgages) received by Company or any
of
its Subsidiaries shall initially be deposited in a Deposit Account that is
covered by an Account Control Agreement (as defined in the Security Agreement)
(the "Segregated Account"). The Company shall, and
shall cause each Subsidiary to, use its best efforts to provide that all
Production Proceeds in the Segregated Account consisting of (A) payment of
oil
or gas proceeds received on account of, or for the benefit of, any third-party
owner of oil or gas interests, including royalty, rentals, overriding royalties
and third party working interest payments, or (B) taxes, charges, costs and
expenses that are required to be paid on account of such Production Proceeds
on
account of, or for the benefit of, any third-party owner of oil or gas interests
(the items in clauses (A) and (B), the "Third-Party Production
Proceeds") be periodically (and in no event less frequently than
monthly) transferred to a Deposit Account of the Company or one of its
Subsidiaries that is not covered by an Account Control Agreement (the
"Third Party Production Account").
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(ii) The
Company shall not, and shall not permit its Subsidiaries to, deposit funds
other
than Third Party Production Proceeds in the Third Party Production
Account. The Company shall provide written notice to the holders of
the Notes and the Collateral Agent as to which Deposit Account is the Segregated
Account. If the Company or any Subsidiary uses funds from a Deposit
Account other than the Third Party Production Account to pay Third-Party
Production Proceeds, then the Company or such Subsidiary shall promptly (and
in
any event within 3 Business Days) transfer funds from the Third Party Production
Account to the Segregated Account in an amount equal to such Third-Party
Production Proceeds so transferred from such Deposit Account other than the
Third Party Production Account.
(k) Section
4(t)(vi) of the Securities Purchase Agreement is hereby amended and restated
in
its entirety to read as follows
(vi) Immediately
upon creation of a direct or indirect Subsidiary or acquisition of an equity
interest in any entity, the Company shall (A) immediately pledge, or cause
its
Subsidiaries to pledge, to the Buyers (1) 100% of the equity interests
of each newly formed direct or indirect domestic Subsidiary, (2) 65%
of the equity interests of each newly formed direct or indirect foreign
Subsidiary, and (3) 100% of the equity interests held by the Company and its
Subsidiaries in any other entity, in each case, including any securities
representing such equity interests and in accordance with the terms of the
applicable Pledge Agreement, (B) cause such newly formed domestic Subsidiary
or
other entity (other than any foreign Subsidiary) to enter into the Guaranty
and
(C) cause such newly formed domestic Subsidiary or other entity (other than
any
foreign Subsidiary) to enter into the Security Agreement and such other Security
Documents as necessary to grant to the Buyers a valid, perfected first priority
security interest in, and lien on, substantially all of the assets of such
Subsidiary (other than assets located in Australia or as provided in Section
4(n)(d) or 4(o)(ii)), and comply with the terms thereof.
(l) Section
4(u)(i) of the Securities Purchase Agreement is hereby amended and restated
in
its entirety to read as follows:
(i) Neither
the Company nor any of its Subsidiaries shall sell, transfer, farm-out, assign
or otherwise dispose of any Real Property (and any of the Collateral used in
connection with the operation of such Real Property) without the prior written
consent of the holders of at least two-thirds (2/3) of the aggregate principal
of the Notes then outstanding (a "Real Property Disposition"),
except in a good faith, arm's length transaction with Persons who are not
Related Parties, providedthat (1) the consideration for the Real
Property Disposition does not consist, in whole or in part, of any Indebtedness
of the Company or any of its Subsidiaries (or the forgiveness, cancellation
or
termination of any such Indebtedness), (2) the net cash proceeds of the Real
Property Disposition are immediately deposited into the Segregated Account,
or,
if any of the consideration consists of Real Property or other assets, the
Buyers or the Collateral Agent are provided with a valid, perfected first
priority security interest therein within two (2) Business Days of the Real
Property Disposition, and (3) immediately before and immediately after giving
effect to the Real Property Disposition, no Reserve Test Failure, Event of
Default, or event which, with the passage of time or the giving of notice or
both, would constitute an Event of Default (such event, a
"Default") shall exist (any such Real Property Disposition, a
"Permitted Real Property Disposition").
Upon
a
Permitted Real Property Disposition, each of the Buyers shall, and shall cause
the Collateral Agent (if applicable), at the Company's sole expense, to promptly
release any Lien encumbering that portion of the Real Property and any of the
Collateral used in connection with the operation of such Real Property that
is
sold, transferred, farmed-out, assigned, or disposed of, provided that the
Company and each applicable Subsidiary shall deliver to the Buyers or their
collateral agent (if applicable) a written notice from the Company and each
applicable Subsidiary, which notice shall contain no material non-public
information, (I) requesting the release of the Liens encumbering the Real
Property and Collateral sold, transferred, farmed-out, assigned or disposed
of,
(II) describing the proposed Real Property and Collateral sold, transferred,
farmed-out, assigned or disposed of, (III) stating the purchase price or other
property to be received in consideration for such sale or disposition of such
Real Property and Collateral, (IV) if there is to be a substitution of Real
Property or other assets for the Real Property (and any related collateral)
that
is subject to the Real Property Disposition, specifying the Real Property or
other assets intended to be substituted therefor, (V) attaching an officer's
certificate in form and substance reasonably acceptable to the Buyers certifying
that the Permitted Real Property Disposition is in compliance with each of
the
requirements of the immediately preceding paragraph and including details of
the
calculations and components of the Reserve Test Failure calculations, (VI)
attaching the form of release requested by the Company or its applicable
Subsidiary to be authorized or, if necessary, executed by the Buyers (or their
collateral agent, as applicable) and (VII) stating whether any Disposition
Redemption Offer is required pursuant to Section 4(b) of the
Notes.
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(m) Section
4(aa) of the Securities Purchase Agreement is hereby amended and restated in
its
entirety to read as follows:
Title
Opinions. Prior to the Company's or any of its Subsidiaries'
drilling of any well on any of the Hydrocarbon Property (as defined in the
Mortgages) that it operates, the Company or such Subsidiary will obtain a
customary drilling title opinion with respect to such Hydrocarbon Property
(as
defined in the Mortgages). The Company shall promptly provide the
Collateral Agent and, upon written request, any Buyer with a copy of such
drilling title opinion subject to such Buyer's execution of a confidentiality
agreement reasonably acceptable to the Company with respect thereto;
provided, however, that any such request by a Buyer shall
constitute a waiver, with respect to any material non-public information
regarding the Company and its Subsidiaries contained in such drilling title
opinion, of the restriction herein on the Company's disclosure to such Buyer
of
material non-public information. Upon the request of the Collateral
Agent, the Company and any of its Subsidiaries shall use commercially reasonable
efforts to obtain and provide copies of any other title opinions with respect
to
Real Property that is a Producing Property which the Company or its Subsidiaries
has access to or is entitled to receive or request.
(n) The
second sentence of Section 9(e) of the Securities Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
No
provision of this Agreement may be amended, modified or supplemented other
than
by an instrument in writing signed by the Company and the Buyers holding at
least two-thirds (2/3) of the aggregate principal amount of the Notes then
outstanding.
(o) Schedule
3(a) of the Securities Purchase Agreement is hereby replaced with the
Schedule 3(a) attached hereto. Schedule 3(c) -
Capitalization of the Securities Purchase Agreement is hereby replaced with
the Schedule 3(c) - Capitalization attached
hereto. Schedule 3(h) – Litigation of the Securities Purchase
Agreement is hereby replaced with the Schedule 3(h) attached
hereto. Schedule 3(w) – Transactions with Affiliates of the
Securities Purchase Agreement is hereby replaced with the Schedule 3(w) –
Transactions with Affiliates attached hereto. Schedule 3(bb) –
Outstanding Indebtedness; Liens of the Securities Purchase Agreement is
hereby replaced with the Schedule 3(bb) – Outstanding Indebtedness; Liens
attached hereto. With respect to Real Property located in Texas and
Australia only, Schedule 3(cc) – Real Property of the Securities Purchase
Agreement is hereby replaced with the Schedule 3(cc) – Real Property
attached hereto.
Section
2. Representations
and Warranties. The Company represents and warrants that
(a) the execution, delivery and performance of this Amendment are within
the corporate power and authority of the Company and have been duly authorized
by appropriate proceedings, (b) the Liens of the Collateral Agent under the
Security Documents (as defined in the Notes) are valid and subsisting and
secure, among other things, the Company's obligations under the Notes,
(c) this Amendment constitutes the legal, valid, and binding obligation of
the Company, 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,
(d) the representations and warranties of the Company contained in the
Securities Purchase Agreement, the Notes and the Security Documents after giving
effect to the amendments contemplated hereby and in the Notes as amended and
restated as of the date hereof are true and correct as of the date hereof,
and
(e) after giving effect to the amendments contemplated hereby and in the Notes
as amended and restated as of the date hereof, no Event of Default has occurred
and is continuing as of the date hereof (other than the Events of Default
specified in the Waiver dated as of the date hereof and made by the Buyers
in
favor of the Company); provided, however, notwithstanding clause (d) above,
the
Company makes no representation and warranty as to the truth or correctness
of
the second and third sentences of the representation and warranty contained
in
Section 3(f) of the Securities Purchase Agreement.
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Section
3. Effectiveness. The
Securities Purchase Agreement shall be amended as provided in this Amendment
on
the date first set forth above when:
(a) Buyer
Documentation. Each Buyer shall have received each of the
following:
(1) Note
Certificates (in the principal amounts as such Buyer shall request) in the
form
of the attached Exhibit A representing such principal amount of the Notes
that such Buyer has purchased under or in connection with the Securities
Purchase Agreement;
(2) the
Boards of Directors of the Company and the other Loan Parties shall have adopted
resolutions authorizing the execution and delivery of this Amendment and the
Transaction Documents listed on Schedule I hereto and in a form
reasonably acceptable to such Buyer (the
"Resolutions");
(3) a
certificate evidencing the incorporation and good standing of the Company and
each Loan Party in such entity's state or other jurisdiction of incorporation
or
organization issued by the Secretary of State (or other applicable authority)
of
such state or jurisdiction of incorporation or organization as of a date within
ten (10) days of the Effective Date;
(4) a
secretary's certificate of the Company and each other Loan Party, dated as
of
the Effective Date, certifying as to (i) the Resolutions, (ii) the
organizational documents of the Company and such Subsidiary, as the case may
be
and certified as of a date within ten (10) days of the Effective Date by the
applicable governmental authority of the applicable jurisdiction, and (iii)
the
by-laws, limited partnership agreement or limited liability company agreement
of
the Company and such Subsidiary, as the case may be; and
(5) an
executed copy of the Amendment Fee Letter dated as of the Effective Date (the
"Fee Letter").
(b) Collateral
Agent Documentation. The Collateral Agent shall have received
each of the following:
(1) One
fully executed original of each of the Notes and six (6) fully executed
originals of each of the other Transaction Documents listed on Schedule I
hereto; and
(2) copies
of such title opinions with respect to the Hydrocarbon Property (as defined
in
the Mortgages) as have been prepared prior to the date of this Agreement and
which the Company or its Subsidiaries have in their possession.
(c) Fees. The
Company shall pay to each Buyer for its own respective accounts fees in the
amounts and at the times specified in the Fee Letter. Such fees shall
be fully earned when paid and shall not be refundable for any reason
whatsoever. The Company shall pay to the Collateral Agent and the
Buyers all of their respective reasonable, out-of-pocket costs and expenses
incurred in connection with the transactions evidenced by this Amendment
(including reasonable fees and out-of-pocket expenses and fees owing to their
respective counsels).
7
(d) Satisfaction
of Conditions. To the extent that the satisfaction of the
conditions in this Section 3 is subject to the Buyers or the Collateral Agent
finding documents or other deliverables to be satisfactory or acceptable, such
documents or other deliverables shall be deemed satisfactory or acceptable
if
delivered on or prior to the date of this Amendment unless the Buyers or the
Collateral Agent shall have given written notice to the Company on or before
the
date of this Amendment of any deficiencies therein.
Section
4. Post-Closing
Covenant.
(a) The
Company covenants and agrees with the Buyers that the Company shall deliver
to
the Collateral Agent, not later than 7 days after the date hereof (or such
later
date agreed to by the Majority Holders as defined in the Notes), (i) restricted
account agreements with Xxxxx Fargo Bank, National Association in form and
substance satisfactory to the Collateral Agent, (ii) a securities account
control agreement with Xxxxx Fargo Brokerage Services, LLC in form and substance
satisfactory to the Collateral Agent, (iii) the opinion of Burnet, Xxxxxxxxx
& Xxxxxx LLP, which opinion will address, among other things, laws of the
Provinces of Alberta and the federal laws of Canada applicable to the
transactions contemplated hereby, in form, scope and substance reasonably
satisfactory to the Buyers, (iv) the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP,
which opinion will address, among other things, laws of the State of Michigan
applicable to the transactions contemplated hereby and the security interests
provided pursuant to the Security Agreement and the other Security Documents,
in
form, scope and substance reasonably satisfactory to the Buyers, and (v) the
opinion of Xxxxxx & Xxxxxx L.L.P., which opinion will address, among other
things, laws of the States of Delaware, New York and Texas applicable to the
transactions contemplated hereby and the security interests provided pursuant
to
the Security Agreement and the other Security Documents, in form, scope and
substance reasonably satisfactory to the Buyers.
(b) The
Company covenants and agrees with the Buyers that the Company shall deliver
to
the Collateral Agent, not later than 60 days after the date hereof (or such
later date agreed to by the Majority Holders as defined in the Notes), (i)
an
amended Schedule 3(cc) – Real Property of the Securities Purchase Agreement with
respect to Real Property located in Wyoming and Montana, (ii) amended and
restated mortgages or deeds of trust, as the case may be, granting a
first-priority securing interest in the Real Property of the Company and its
Subsidiaries located in Montana, Wyoming and West Virginia, in each case in
form
and substance satisfactory to the Collateral Agent, (iii) a pledge agreement
governed by Australian law and in form and substance reasonably satisfactory
to
the Collateral Agent pledging 65% of the equity interests of Gastar Power Pty
Ltd. and such other documents required to perfect the security interest of
the
Collateral Agent therein and (iv) a legal opinion of Australian counsel in
form
and substance reasonably satisfactory to the Majority Holders addressing the
security interests provided pursuant to the pledge agreement referenced in
clause (b)(iii) above.
Notwithstanding
anything to the contrary in the Notes, the Company's failure to timely satisfy
the covenants and agreements in this Section 4 shall be an Event of Default
under the Notes.
Section
5. Signatures;
Counterparts. Facsimile transmissions of any executed original
document and/or retransmission of any executed facsimile transmission shall
be
deemed to be the same as the delivery of an executed original. At the
request of any party hereto, the other parties hereto shall confirm facsimile
transmissions by executing duplicate original documents and delivering the
same
to the requesting party or parties. This Amendment may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Section
6. Headings. The
headings in this Amendment are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
Section
7. No Additional
Sale Election Notice. This Amendment shall in no way be construed
as an Additional Sale Election Notice.
8
Section
8. Ratification
and
Confirmation of the Securities Purchase Agreement. The Company
hereby adopts, ratifies and confirms the Securities Purchase Agreement, as
amended hereby, and acknowledges and agrees that the Securities Purchase
Agreement, as amended hereby, is and remains in full force and
effect. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Buyer under
the Securities Purchase Agreement or the other Transaction Documents, nor
constitute an amendment or waiver of any other provision of the Transaction
Documents. All references to the Securities Purchase Agreement in any
other document, instrument, agreement or writing shall hereafter be deemed
to
refer to the Securities Purchase Agreement as modified by this
Amendment.
Section
9. Entire
Agreement. The Securities Purchase Agreement, as amended by this
Amendment, supersedes all other prior oral or written agreements between each
Buyer, the company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein.
Section
10. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties and their respect successors and assigns.
Section
11. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE
WITH, AND ENFORCED UNDER, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
[Signature
pages follow.]
9
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their respective officers hereunto duly authorized as of the
date first above written.
|
COMPANY:
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
|
Name: Xxxxxxx
X. Xxxxxxx
|
||
|
Title: Vice
President and Chief Financial
Officer
|
||
10
|
BUYERS:
|
||
|
FIELD
POINT III, LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
FIELD
POINT IV, LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
SPF
CDO I, LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
CYRUS
OPPORTUNITIES MASTER FUND II, LTD.
|
||
|
By:
|
Cyrus
Capital Partners, L.P.
|
|
|
Its:
|
Investment
Manager
|
|
|
By:
|
Cyrus
Capital Partners GP, LLC,
|
|
|
Its:
|
General
Partner
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
WAYZATA
RECOVERY FUND, LLC
|
||
|
By:
|
Wayzata
Investment Partners LLC
|
|
|
Its:
|
Manager
|
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
11
