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EXHIBIT 10.20
FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED LOAN AGREEMENT
DATED SEPTEMBER 23, 1996
BY AND BETWEEN SABA PETROLEUM COMPANY, ET AL.
AND BANK ONE, TEXAS, N.A.
This First Amendment to the First Amended and Restated Loan Agreement
dated September 23, 1996 (this "First Amendment") by and between SABA PETROLEUM
COMPANY, a Colorado corporation (the "Borrower") et al., and BANK ONE, TEXAS,
N.A., a national banking association (the "Bank") , is entered into on this 5th
day of November, 1996.
W I T N E S S E T H:
Borrower and Bank have entered into a First Amended and Restated Loan
Agreement dated September 23, 1996, (the "Loan Agreement").
Borrower has requested that Bank amend certain provisions of the Loan
Agreement, and the Bank has agreed to such amendments to the extent expressly
set forth herein.
NOW, THEREFORE, in consideration of the promises herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the Borrower and the Bank, and each intending to be legally
bound hereby, the parties agree as follows:
I. Specific Amendments to Loan Agreement.
Article I is hereby amended by adding or replacing, as
applicable, the following definitions:
"EAMC" means Energy Asset Management Company, L.L.C., an Arkansas
limited liability company.
"First Amendment" means the First Amendment to this Agreement executed
by Borrower and Bank on November 5, 1996.
"Former MV Partners" means XxXxxx Ventures, Inc. and Rockbridge Oil &
Gas, Inc.
"Guarantor (s)" means, individually and collectively, Saba Energy of
Texas, Incorporated, a Texas corporation, Saba Petroleum, Inc., a California
corporation, Saba Petroleum of Michigan, Inc., a Michigan corporation, and MV
Ventures, G.P., a Texas general partnership.
"Guaranty" means, with respect to each Guarantor other than MV
Ventures, the guaranty of such Guarantor of all of Borrower's Obligations to
the Bank, executed pursuant to the
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Prior Loan Agreement, as ratified pursuant to this Agreement, and with respect
to MV Ventures, its guaranty executed pursuant to the First Amendment.
"MV Acquisition" means the closing of the MV Purchase and Sale
Agreement.
"MV Partnership Agreement" means that certain partnership agreement
executed on November 1, 1995, between the Former Partners, as subsequently
amended.
"MV Purchase and Sale Agreement" means that certain Purchase and Sale
Agreement dated October 8, 1996, between the Former Partners, as Sellers, and
SETI and EAMC, as Buyers, pursuant to which SETI and EAMC acquired MV Ventures
and became the sole partners therein.
"MV Ventures" means that certain Texas general partnership formally
known as MV Ventures, G.P., formed pursuant to the MV Partnership Agreement.
"Revolving Commitment Limit" means $16,000,000.00 as of the date of
this Agreement, and such different amounts as are subsequently established,
from time to time, pursuant to Section 2.19 hereof.
"SETI" means Saba Energy of Texas, Incorporated, a Texas corporation,
which is a wholly-owned subsidiary of Borrower.
Section 2.03 is amended by inserting the following text after the
second sentence of such section:
Effective as of the closing of the First Amendment, Borrowing Base I
is redetermined to be Fourteen Million and No/100 Dollars
($14,000,000.00), which shall thereafter decline in the amount of
$250,000.00, monthly, beginning on December 1, 1996, and at the
beginning of each successive month thereafter until the effective date
of the next redetermination of the Borrowing Base as set forth in
this Section.
Article III is hereby amended by adding the following new Section 3.13
thereto:
3.13 Closing of First Amendment. Prior to the funding of
any Loans that are based on the increased Loan availability resulting
from the increase in the Borrowing Base pursuant to the First
Amendment, in addition to Borrower satisfying the requirements of the
other applicable Sections of Article III, the Bank shall have
received:
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(a) satisfactory evidence that SETI and EAMC have closed
the MV Acquisition, subject only to payment to the Former Partners of
an aggregate cash sum not to exceed $3,836,571.35, and that upon the
Bank's advance of Loan proceeds sufficient to fund such payment, such
transaction shall have been consummated.
(b) satisfactory evidence that:
- the Former Partners have amended the MV Partnership Agreement to
correctly designate the name of "MV Ventures, G.P.," and to include
provisions adequate to insure that the sale of the partnership from
the Former Partners to SETI and EAMC shall not cause a dissolution of
the partnership,
- SETI and EAMC have acquired MV Ventures free and clear of all liens,
claims and encumbrances (including, but not limited to, releases
obtained at least one day prior to closing of the First Amendment of
any of the foregoing held or claimed by Compass Bank, Lexas Oil,
L.L.C., or LCO Company),
- MV Ventures has Marketable Title to its Oil and Gas Properties, as
described in the MV Purchase and Sale Agreement, and
- SETI and EAMC have amended the MV Partnership Agreement to designate
SETI as Managing Partner and to grant the Managing Partner full
complete power and authority to manage the business of the
Partnership.
(c) a Guaranty, in form and substance satisfactory to the
Bank, pursuant to which MV Ventures shall guaranty the Obligations of
Borrower to Bank.
(d) a mortgage of the Oil and Gas Properties of MV
Ventures, in form and substance satisfactory to the Bank, pursuant to
which the Oil and Gas Properties of MV Ventures are mortgaged to
secure the Obligations of Borrower to the Bank and MV Ventures'
obligations under its Guaranty to the Bank.
(e) a security agreement, in form and substance
satisfactory to the Bank, pursuant to which SETI pledges it
partnership interest in MV Ventures, and in the contracts, accounts
and
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proceeds associated therewith or resulting therefrom, to the Bank to
secure the Obligations of Borrower and the Guaranty of SETI.
(f) UCC-1 Financing Statements, in form and substance
satisfactory to the Bank, relating to the instruments identified in
clauses (d) and (e), above.
(g) Transfer order letters, in form and substance
satisfactory to the Bank, from MV Ventures to the Bank covering MV
Ventures' interest in production from its Oil and Gas Properties.
(h) a certificate of the secretary or assistant secretary
of SETI, both in its own capacity and in its capacity as managing
partner of MV Ventures, attesting to the adoption of resolutions by
SETI and the adoption of a unanimous consent by SETI and EAMC, as the
sole partners of MV Ventures, authorizing the transactions evidenced
by the First Amendment.
(i) a Compliance Certificate executed by Borrower.
(j) a Request for Advance executed by Borrower.
(k) such other documents and instruments as Bank may
reasonably request.
The terms "satisfactory evidence" or "evidence satisfactory to the
Bank," as used in this section 3.13, means evidence satisfactory to
the Bank, in its sole discretion.
Section 8.04 is hereby amended to change to address and fax number of
Borrower and each Guarantor to:
c/o Saba Petroleum Company
000 X. Xxxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
II. Reaffirmation of Representations and Warranties. To induce the Bank
to enter into this First Amendment, the Borrower and each Guarantor hereby
reaffirms, as of the date hereof, its representations and warranties contained
in Article IV of the Loan Agreement and in all other documents executed pursuant
thereto, and additionally represents and warrants as follows:
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A. The execution and delivery of this First Amendment
and the performance by the Borrower and each Guarantor of its
obligations under this First Amendment are within the Borrower's and
each Guarantor's power, have been duly authorized by all necessary
corporate action, have received all necessary governmental approval
(if any shall be required), and do not and will not contravene or
conflict with any provision of law or of the charter or by-laws of the
Borrower or any Guarantor or of any agreement binding upon the
Borrower or any Guarantor.
B. The Loan Agreement as amended by this First Amendment
represents the legal, valid and binding obligations of the Borrower
and each Guarantor, enforceable against each in accordance with their
respective terms subject as to enforcement only to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally.
C. No Event of Default or Unmatured Event of Default has
occurred and is continuing as of the date hereof.
III. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Loan Agreement shall have the same meanings herein.
IV. Reaffirmation of Loan Agreement. This First Amendment shall be deemed
to be an amendment to the Loan Agreement, and the Loan Agreement, as further
amended hereby, is hereby ratified, approved and confirmed in each. and every
respect. All references to the Loan Agreement herein and in any other
document, instrument, agreement or writing shall hereafter be deemed to refer
to the Loan Agreement as amended hereby.
V. Entire Agreement. The Loan Agreement, as hereby further amended,
embodies the entire agreement between the Borrower, the Guarantors and the Bank
and supersedes all prior proposals, agreements and understandings relating to
the subject matter hereof. The Borrower and each Guarantor certifies that it
is relying on no representation, warranty, covenant or agreement except for
those set forth in the Loan Agreement as hereby further amended and the other
documents previously executed or executed of even date herewith.
VI. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. This First Amendment has been entered
into in Xxxxxx County, Texas, and it shall be performable for all purposes in
Xxxxxx County, Texas. Courts within the State of Texas shall have jurisdiction
over any and all disputes between the Borrower and the Bank, whether in law or
equity, including, but not limited to, any and all disputes arising out of or
relating to this First Amendment or any other
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Loan Document; and venue in any such dispute whether in federal or state court
shall be laid in Xxxxxx County, Texas.
VII. Severability. Whenever possible each provision of this First
Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this First Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this First Amendment.
VIII. Execution in Counterparts. This First Amendment may be executed in
any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument, and any signed counterpart shall be deemed delivered by the party
executing such counterpart if sent to any other party hereto by electronic
facsimile transmission.
IX. Section Captions. Section captions used in this First Amendment are
for convenience of reference only, and shall not affect the construction of
this First Amendment.
X. Successors and Assigns. This First Amendment shall be binding upon
the Borrower, each Guarantor and the Bank and their respective successors and
assigns, and shall inure to the benefit of the Borrower, each Guarantor and the
Bank, and the respective successors and assigns of the Bank.
XI. Non-Application of Chapter 15 of Texas Credit Codes. The provisions
of Chapter 15 of the Texas Credit Code (Vernon's Texas Civil Statutes, Article
5069-15) are specifically declared by the parties hereto not to be applicable
to the Loan Agreement as hereby further amended or any of the other Loan
Documents or to the transactions contemplated hereby.
XII. Notice. THIS FIRST AMENDMENT TOGETHER WITH THE LOAN AGREEMENT, AND
THE OTHER LOAN DOCUMENTS REPRESENT 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.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed as of the day and year first above written.
BORROWER
SABA PETROLEUM COMPANY
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx,
Chief Financial Officer
BANK
BANK ONE, TEXAS, N.A.
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Vice President
GUARANTORS:
SABA ENERGY OF TEXAS, INCORPORATED
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
SABA PETROLEUM, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx,
Chief Financial officer
SABA PETROLEUM OF MICHIGAN, INC.
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
MV VENTURES, G. P.
By: SABA ENERGY OF TEXAS, INCORPORATED,
Managing Partner
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx,
President
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