EXHIBIT 10.1
FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made and entered into effective as of October 29, 2004, by and
among PETROQUEST ENERGY, L.L.C., a Louisiana limited liability company
("Borrower"); PETROQUEST ENERGY, INC., a Delaware corporation ("PEI" );
PITTRANS, INC., an Oklahoma corporation ("Pittrans," who along with PEI are
collectively, the "Guarantors"); BANK ONE, NA, a national banking association,
(individually as a lender and as agent, ("Bank One").
R E C I T A L S:
WHEREAS, Borrower, Guarantors, Bank One and Union Bank of California
entered into an Amended and Restated Credit Agreement dated May 14, 2003 (which
as the same may have been and be amended from time to time is herein called the
("Credit Agreement"), pursuant to which Borrower amended and restated a
previously existing credit facility dated May 11, 2001; and
WHEREAS, Union Bank of California has, by Assignment dated December 23,
2003, assigned and conveyed to Bank One all of its interest in the Credit
Agreement; and
WHEREAS, Borrower, Guarantors and Bank One desire to amend the Credit
Agreement as herein set forth.
NOW THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Except as otherwise provided below, unless the
context hereof indicates otherwise, all capitalized terms used herein shall have
the same meaning as such capitalized terms are defined in the Credit Agreement.
(a) The following defined terms set forth in Article I of the
Credit Agreement are hereby amended as follows:
"Borrowing Base Reduction Amount" means (a) $1,500,000 for
each of December 1, 2004 and January 1, 2005; (b) for each month
commencing February 1, 2005 until the next semi-annual Borrowing
Base redetermination pursuant to Section 2.2.2, $2,000,000, and
(c) for each month thereafter, such amount as designated by 100%
of the Lenders in a notice to Borrower from time to time in
connection with each successive scheduled semi-annual Borrowing
Base redetermination pursuant to Section 2.2.2 or successive
unscheduled Borrowing Base redetermination pursuant to Section
2.2.3.; provided however, if 100% of the Lenders fail to timely
designate a new Borrowing Base Reduction Amount, then the
Borrowing Base Reduction
Amount most recently in effect will continue in effect until
100% of the Lenders designate a new Borrowing Base Reduction
Amount."
2. Amendments to the Credit Agreement. The Credit Agreement is,
effective the date hereof, and subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Section 6.32 Subordinated Indebtedness to the Credit
Agreement is hereby amended in its entirety to read as follows:
"6.32. Subordinated Indebtedness. The Borrower will promptly
provide the Agent with copies of all documentation, notices and
reports provided by or on behalf of the Borrower, Guarantor or
any Subsidiary to the Subordinated Lenders. On or before the date
the financial statements are due pursuant to Sections 6.1(i) and
(ii) hereof, the Borrower shall deliver to the Agent a
certificate, executed by an Authorized Officer of the Borrower,
setting forth the outstanding balance of the Subordinated
Indebtedness as of the last day of the preceding month. The
Borrower will not, and will not permit the Guarantor or any
Subsidiary to, make any (i) payments on the principal amount of
any Subordinated Indebtedness; (ii) payments of interest on the
Subordinated Indebtedness after the occurrence of a Unmatured
Default or a Default; (iii) amendment or modification to the
Subordinated Credit Agreement or any other agreement evidencing
or governing any Subordinated Indebtedness without the prior
written consent of the Required Lenders; or (iv) directly or
indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any portion of the
Subordinated Indebtedness without the prior written consent of
the Required Lenders."
3. Conditions Precedent to Effectiveness of Amendment. This
Amendment shall become effective when, and only when, the Agent and Lenders
shall have received counterparts of this Amendment executed by Borrower and
Guarantors and when, and only when, each of the conditions below have been
satisfied to the satisfaction of the Agent and Lenders:
(a) Counterparts of this Amendment duly executed by Borrower,
Guarantors and Lenders;
(b) There shall not have been, in the sole judgment of Lenders,
any material adverse change in the financial condition, business or
operations of Borrower or Guarantors;
(c) Payment by Borrower of the fees and expenses of counsel to
Lenders in connection with the preparation and negotiation of this
Amendment and all documents and instruments contemplated hereby; and
(d) The execution and delivery of such additional documents and
instruments which the Agent and its counsel may deem necessary to
effectuate this Amendment or any document executed and delivered to
Lenders in connection herewith or therewith.
4. epresentations and Warranties of Borrower. Borrower represents
and warrants as follows:
(a) Borrower and Guarantors are each duly authorized and
empowered to execute, deliver and perform this Amendment and all other
instruments referred to or mentioned herein to which it is a party, and
all action on its part requisite for the due execution, delivery and
the performance of this Amendment has been duly and effectively taken.
This Amendment, when executed and delivered, will constitute valid and
binding obligations of Borrower and Guarantors, as the case may be,
enforceable against such party in accordance with its terms. This
Amendment does not violate any provisions of the Articles of
Organization or limited liability agreement of Borrower, the
Certificate of Incorporation or By-Laws of Guarantors, or any contract,
agreement, law or regulation to which Borrower or Guarantors are
subject, and does not require the consent or approval of any regulatory
authority or governmental body of the United States or any state;
(b) After giving affect to this Amendment, the representations
and warranties contained in the Credit Agreement, as amended hereby,
and any other Loan Documents executed in connection herewith or
therewith are true, correct and complete on and as of the date hereof
as though made on and as of the date hereof;
(c) After giving affect to this Amendment, no event has occurred
and is continuing which constitutes a Default or Unmatured Default; and
(d) When duly executed and delivered, each of this Amendment and
the Credit Agreement will be legal and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as
limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by
equitable principles of general application.
5. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of Section 2 hereof, on and after the
date hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import,
and each reference in the Loan Documents shall mean and be a reference
to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and the Note(s), and all other instruments securing or guaranteeing
Borrower's obligations to Lenders, including the Collateral Documents,
as amended (collectively, the "Security Instruments") shall remain in
full force and effect and are hereby ratified and confirmed. Without
limiting the generality of the foregoing, the Security Instruments and
all collateral described therein
do and shall continue to secure the payment of all obligations of
Borrower and Guarantors under the Credit Agreement and the Note(s), as
amended hereby, and under the other Security Instruments.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Lender under any of the Security
Instruments, nor constitute a waiver of any provision of any of the
Security Instruments.
6. Waiver. As additional consideration for the execution, delivery
and performance of this Amendment by the parties hereto and to induce Lenders to
enter into this Amendment, Borrower and Guarantors each warrants and represents
to Lenders that no facts, events, statuses or conditions exist or have existed
which, either now or with the passage of time or giving of notice, or both,
constitute or will constitute a basis for any claim or cause of action against
Lenders or any defense to (i) the payment of any obligations and indebtedness
under the Note(s) and/or the Security Instruments, or (ii) the performance of
any of its obligations with respect to the Note(s) and/or the Security
Instruments, and in the event any such facts, events, statuses or conditions
exist or have existed, Borrower unconditionally and irrevocably waives any and
all claims and causes of action against Lenders and any defenses to its payment
and performance obligations in respect to the Note(s) and the Security
Instruments.
7. Costs and Expenses. Borrower agrees to pay on demand all costs
and expenses of Lenders in connection with the preparation, reproduction,
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, including the reasonable fees and out-of-pocket
expenses of counsel for Lenders. In addition, Borrower shall pay any and all
fees payable or determined to be payable in connection with the execution and
delivery, filing or recording of this Amendment and the other instruments and
documents to be delivered hereunder, and agrees to save Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omitting to pay such fees.
8. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
9. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas.
10. Final Agreement. THIS WRITTEN AMENDMENT 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed in multiple counterparts, each of which is an original
instrument for all purposes, all as of the day and year first above written.
"BORROWER"
PETROQUEST ENERGY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
"GUARANTORS"
PETROQUEST ENERGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
PITTRANS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
"LENDERS"
BANK ONE, NA,
As the Agent, a Lender and LC Issuer
By: /s/ Xxxxxxx Xxxxxxxxx-Xxxxx
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Xxxxxxx Xxxxxxxxx-Xxxxx
Managing Director
