EXHIBIT 10.1
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made and entered into effective as of October 14, 2004, by and
among PETROQUEST ENERGY, L.L.C., a Louisiana limited liability company
("Borrower"); PETROQUEST ENERGY, INC., a Delaware corporation ("Guarantor");
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, Guarantor, 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, Guarantor 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 the Required 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 the Required 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 the Required Lenders designate a new Borrowing
Base Reduction Amount."
"Guarantor" means individually and collectively (i)
PetroQuest Energy, Inc., a Delaware corporation; (ii)
Pittrans, Inc., an Oklahoma corporation; and (iii) their
respective successors and assigns.
"Required Lenders" means (i) Lenders having 100% of
the Aggregate Commitment if there are only two or fewer
Lenders; or (ii) Lenders in the aggregate having at least 66?%
of the Aggregate Commitment if there are more than two or more
Lenders or, (iii) if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66?% of
the aggregate unpaid principal amount of the outstanding
Advances.
(b) Article I of the Credit Agreement is hereby amended by
adding the following new defined terms and their definitions in proper
alphabetical sequence as follows:
"SJM Acquisition Agreement" means that certain
Purchase and Sale Agreement among SJM Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. Coast and ▇▇▇ ▇. ▇▇▇▇, ▇▇., as Sellers, and
Borrower, as Buyer, as amended and supplemented by supplement
and amendment to the Purchase and Sale Agreement dated October
14, 2004 regarding the purchase by Borrower of Oil & Gas
Properties located in Pittsburg, Atoka, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
Counties , Oklahoma and the purchase of all of the issued and
outstanding shares of Pittrans.
"Pittrans" means Pittrans, Inc., an Oklahoma
corporation, which after Closing, pursuant to the SJM
Acquisition Agreement, will be a Wholly Owned Subsidiary of
Borrower.
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 2.2.1 Borrowing Base, of the Credit Agreement is
hereby amended by deleting the section in its entirety and substituting
the following:
"2.2.1 Effective October 14, 2004 to the date as of
which the Borrowing Base is next redetermined pursuant to
Section 2.2.2, the Borrowing Base shall be $38,000,000.00."
(b) A new Section 5.30 SJM Acquisition Agreement is hereby
added to the Credit Agreement as follows:
"5.30 SJM Acquisition Agreement. The transactions
contemplated by the SJM Acquisition Agreement have or will
close as contemplated therein and neither Borrower, Guarantor,
nor any other party thereto has waived nor shall waive, or in
any way amend, without the prior consent of the Agent, the
terms of the SJM
Acquisition Agreement, including any condition to the
obligations to close as so set forth therein. A true, correct
and complete copy of the SJM Acquisition Agreement (including
all exhibits, schedules and amendments thereto) has been
delivered to Agent and a true, correct and complete copy of
each document and instrument delivered at closing of the
Acquisition will be delivered to the Agent on the closing date
thereof. Neither Borrower, Guarantor, nor any other party
thereto is in default under the SJM Acquisition Agreement or
any document or instrument to be delivered in connection with
the SJM Acquisition Agreement executed in connection
therewith. The representations and warranties made by each of
the parties in the SJM Acquisition Agreement and any other
document or instrument will be true and correct (except for
changes expressly provided for therein or herein) on and as of
the closing date as though made on and as of such date."
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 Guarantor and
Section 2 hereof shall become effective when, and only when, the Agent and
Lenders shall have additionally received all of the following documents, each
document (unless otherwise indicated) being dated the date of receipt thereof by
Lender (which date shall be the same for all such documents), in form and
substance satisfactory to the Lender:
(a) Counterparts of this Amendment duly executed by Borrower,
Guarantor and Lenders;
(b) A copy of the resolutions approving this Amendment, and
authorizing the transactions contemplated herein or therein duly
adopted by the Managers of Borrower, accompanied by a certificate of
the duly authorized Secretary of Borrower, that such copy is a true and
correct copy of the resolutions duly adopted by the Managers of
Borrower, and that such resolutions constitute all the resolutions
adopted with respect to such transactions, and have not been amended,
modified or revoked in any respect and are in full force and effect as
of the date hereof;
(c) A copy of the resolutions approving this Amendment, and
authorizing the transactions contemplated herein or therein duly
adopted by the Board of Directors of Guarantor, accompanied by a
certificate of the duly authorized Secretary of Guarantor, that such
copy is a true and correct copy of the resolutions duly adopted by the
Board of Directors of Guarantor, and that such resolutions constitute
all the resolutions adopted with respect to such transactions, and have
not been amended, modified or revoked in any respect and are in full
force and effect as of the date hereof;
(d) Mortgages, executed by the Borrower, in a form
satisfactory to the Agent, the Lenders and their counsel with respect
to the Properties purchased by Borrower pursuant to the SJM Acquisition
Agreement and described therein, which are part of the Collateral, and
such other agreements, documents and instruments as may be necessary
and appropriate, in form and substance satisfactory to the Agent and
the Lenders, executed and delivered by the
Borrower, as mortgagor or assignor, in favor of the Agent, ratably for
the benefit of the Lenders, in order to create and perfect the Lender
Liens in and to all Collateral described therein;
(e) The Pledge Agreement, executed by Borrower, in a form
satisfactory to the Agent, the Lenders and their counsel, with respect
to the shares of Pittrans along with one or more certificates
evidencing such shares having attached thereto duly executed stock
powers and any financing statements related thereto.
(f) A Guaranty, executed by Pittrans, in a form satisfactory
to the Agent, the Lenders, and their counsel;
(g) 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 Guarantor;
(h) Payment of a fees as set forth in the Fee Letter executed
by Borrower in connection with this Amendment;
(i) 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
(j) 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. Representations and Warranties of Borrower. Borrower represents and
warrants as follows:
(a) Borrower and Guarantor 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 Guarantor, 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 Guarantor, or any contract,
agreement, law or regulation to which either Borrower or Guarantor is
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 Guarantor 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 Guarantor 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief Financial Officer
"GUARANTOR"
PETROQUEST ENERGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief Financial Officer
"LENDERS"
BANK ONE, NA,
As the Agent, a Lender and LC Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Managing Director
