EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 30, 2007 among GOODRICH PETROLEUM COMPANY, L.L.C., as Borrower, BNP PARIBAS, as Administrative Agent, and The Lenders Party Hereto
Exhibit 10.1
XXXXXXXX PETROLEUM COMPANY, L.L.C.,
as Borrower,
as Borrower,
BNP PARIBAS,
as Administrative Agent,
as Administrative Agent,
and
The Lenders Party Hereto
EIGHTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Eighth
Amendment”) dated as of November 30, 2007, is among XXXXXXXX PETROLEUM COMPANY, L.L.C.,
a Louisiana limited liability company (“Borrower”); each of the undersigned Guarantors
(collectively, the “Guarantors”); BNP PARIBAS, as administrative agent (in such capacity,
together with its successors in such capacity, “Administrative Agent”) for the lenders
party to the Credit Agreement referred to below (collectively, the “Lenders”); and the
undersigned Lenders.
R E C I T A L S
A. Borrower, Administrative Agent and the Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of November 17, 2005, as amended by the First Amendment to
Amended and Restated Credit Agreement, dated December 14, 2005, the Second Amendment to Amended and
Restated Credit Agreement, dated June 21, 2006, the Third Amendment to Amended and Restated Credit
Agreement, dated August 30, 2006, the Fourth Amendment to Amended and Restated Credit Agreement,
dated November 30, 2006, the Fifth Amendment to Amended and Restated Credit Agreement, dated August
7, 2007, the Sixth Amendment to Amended and Restated Credit Agreement, dated September 17, 2007 and
the Seventh Amendment to Amended and Restated Credit Agreement, dated September 25, 2007 (as
amended, the “Credit Agreement”), pursuant to which the Lenders have made certain loans to
and other extensions of credit on behalf of Borrower.
B. Borrower has requested, and the Lenders have agreed, to amend certain provisions of the
Credit Agreement.
C. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Defined Terms. Each capitalized term used herein but not otherwise
defined herein has the meaning given such term in the Credit Agreement. Unless otherwise
indicated, all article and section references in this Eighth Amendment refer to articles
and sections of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Definitions.
(a) Section 1.1 is hereby amended by amending and restating or adding the following
definitions:
“Agreement” means this Amended and Restated Credit Agreement, as amended by
the First Amendment to Amended and Restated Credit Agreement, dated December 14,
2005, the Second Amendment to Amended and Restated Credit Agreement, dated June 21,
2006, the Third Amendment to Amended and Restated
Credit Agreement, dated August 30, 2006, the Fourth Amendment to Amended and
Restated Credit Agreement, dated November 30, 2006, the Fifth Amendment to Amended
and Restated Credit Agreement, dated August 7, 2007, the Sixth Amendment to Amended
and Restated Credit Agreement, dated September 17, 2007, the Seventh Amendment to
Amended and Restated Credit Agreement, dated September 25, 2007 and the Eighth
Amendment to Amended and Restated Credit Agreement, dated November 30, 2007.
“Disqualified Capital Stock” means any Equity Interest that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable) or upon the happening of any event, matures or is mandatorily
redeemable for any consideration other than other Equity Interests (which would not
constitute Disqualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is convertible or exchangeable for Debt or redeemable for any
consideration other than other Equity Interests (which would not constitute
Disqualified Capital Stock) at the option of the holder thereof, in whole or in
part, on or prior to the date that is one year after the Termination Date.
“Eighth Amendment Effective Date” means November 30, 2007.
“Intercreditor Agreement” means that certain Intercreditor Agreement entered
into on the effective date of the Second Lien Term Loan Agreement by and among the
Administrative Agent, Borrower and the administrative agent of the Second Lien Term
Loan Agreement, on substantially the terms and conditions set forth in the Summary
of Terms and Conditions dated November 27, 2007, as the same may from time to time
be amended, modified, supplemented or restated.
“PD PV” means the PV of Proved Developed Reserves of Borrower and the other
Companies as described in the most recently delivered Reserve Report.
“Proved Reserves” means “Proved Reserves” as defined in the Definitions for
Oil and Gas Reserves (in this paragraph, the “Definitions”) promulgated by the
Society of Petroleum Engineers (or any generally recognized successor) as in effect
at the time in question. “Proved Developed Producing Reserves” means Proved
Reserves which are categorized as both “Developed” and “Producing” in the
Definitions, “Proved Developed Nonproducing Reserves” means Proved Reserves
which are categorized as both “Developed” and “Nonproducing” in the Definitions, and
“Proved Developed Reserves” means Proved Reserves which are either Proved
Developed Producing Reserves or Proved Developed Nonproducing Reserves.
“PV” means, with respect to any Proved Reserves expected to be produced
from any Mineral Interests, the net present value, discounted at 10% per annum, of
the future net revenues expected to accrue to Borrower’s and the other Companies’
collective interests in such reserves during the remaining expected economic lives
of such reserves. Each calculation of such expected future net revenues shall be
made in accordance with the then existing standards of the Society of Petroleum
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Engineers, provided that in any event (a) appropriate deductions shall be made for
severance and ad valorem taxes, and for operating, gathering, transportation and
marketing costs required for the production and sale of such reserves, (b)
appropriate adjustments shall be made to reflect the economic impact and cash flows
of Swap Agreements, provided that Swap Agreements with non-investment grade
counterparties shall not be taken into account to the extent that such Swap
Agreements improve the position of or otherwise benefit Borrower or any other
Company, (c) the pricing assumptions used in determining PV for any particular
reserves shall be based upon the following price decks: (i) for natural gas, (A)
the forward price quotation for deliveries of natural gas for each of the first five
calendar years from the New York Mercantile Exchange for Xxxxx Hub and (B) with
respect to quotations for calendar years after the fifth calendar year, the
quotation for the fifth calendar year shall be applied and (ii) for crude oil, (A)
the forward price quotation for deliveries of West Texas Intermediate crude oil for
each of the first five calendar years from the New York Mercantile Exchange for
Cushing, Oklahoma and (B) with respect to quotations for calendar years after the
fifth calendar year, the quotation for the fifth calendar year shall be applied and
(d) the cash-flows derived from the pricing assumptions set forth in clause (c)
above shall be further adjusted to account for the historical basis differentials
for each month during the preceding 12-month period calculated by comparing realized
crude oil and natural gas prices to Cushing, Oklahoma and Xxxxx Hub NYMEX prices for
each month during such period.
“Second Lien Notes” means the Notes issued pursuant to the Second Lien Term
Loan Agreement, together with all amendments, modifications, replacements,
extensions and rearrangements thereof permitted by Section 9.9(b).
“Second Lien Term Loan Agreement” means a Second Lien Term Loan Credit
Agreement entered into on or before December 31, 2007, among Borrower, BNP Paribas,
as Administrative Agent, and the lenders party thereto, on substantially the terms
and conditions set forth in the Summary of Terms and Conditions dated as of November
27, 2007, and together with all amendments, modifications and supplements thereto
permitted by Section 9.9(b).
“Total PV” means at any time the PV attributable to Proved Reserves as most
recently determined and certified to the Lenders in accordance with Section 2.6, as
the same may be adjusted from time to time pursuant to Section 8.18(c) and Section
9.10(e) and further adjusted, if necessary, to exclude a portion of reserves other
than Proved Developed Reserves such that not less than 60% of Total PV is
attributable to PD PV.
2.2 Section 3.2(c)(v)(A). Section 3.2(c)(v)(A) is hereby amended and restated in
its entirety as follows:
“(A) 100% of the Net Cash Proceeds of any Debt incurred by any Restricted Company
and 100% of the Net Cash Proceeds less the purchase price of any call
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spread option permitted by Section 9.9(a) of the sale or issuance of any Equity
Interests of any Restricted Company. Such prepayment shall be made no later than
five Business Days after the receipt of such proceeds and”
2.3 Section 9.9(a). Section 9.9(a) is hereby amended and restated in its entirety
as follows:
“(a) Distributions. No Restricted Company may declare, make, or pay any
Distribution except Distributions paid in the form of additional common stock, and
distributions to any other Restricted Company; provided, however, that, so
long as no Potential Default or Borrowing Base Deficiency exists or would result
therefrom, (i) Xxxxxxxx may make regularly scheduled interest payments, in cash, on
the Convertible Notes, (ii) Xxxxxxxx may pay regularly scheduled dividends, in cash,
on the Existing Preferred Stock and (iii) on or before December 31, 2008, Xxxxxxxx
may purchase one or more call spread options on shares of its Equity Interests with
the proceeds of one or more substantially contemporaneous offerings of its Equity
Interests (other than Disqualified Capital Stock), and Xxxxxxxx may thereafter
exercise such call spread options and settle such call spread options in cash or in
kind, provided that (A) such call spread options shall have a call premium in an
aggregate amount not to exceed the lesser of 20% of the gross proceeds raised via
such offerings and $35,000,000 and (B) the gross proceeds of such offerings shall be
no less than $60,000,000 in the aggregate.”
2.4 Section 9.9(b). Section 9.9(b) is hereby amended and restated in its entirety
as follows:
“(b) Redemption of Second Lien Notes; Amendment of Second Lien Term Loan
Documents. Borrower will not, and will not permit any Restricted Company to:
(i) prior to the date that is ninety-one (91) days after the Stated-Termination
Date, call, make or offer to make any optional or voluntary Redemption of or
otherwise optionally or voluntarily Redeem (whether in whole or in part) the Second
Lien Notes, provided that Borrower may optionally prepay the Second Lien Notes,
including refinancings thereof, if (A) no Potential Default or Default has occurred
and is continuing or would exist after giving effect to such prepayment or
refinancing, and (B) after giving effect to such prepayment or refinancing, Borrower
would have at least $25,000,000 of unused availability under the then effective
Borrowing Base, or (ii) amend, modify, waive or otherwise change, consent or agree
to any amendment, modification, waiver or other change to, any of the terms of any
Second Lien Term Loan Document if (A) the effect thereof would be to shorten the
maturity of the Second Lien Notes or shorten the average life or increase the amount
of any payment of principal thereof or increase the rate or add call or pre-payment
premiums or shorten any period for payment of interest thereon, (B) such action
requires the payment of a consent fee (howsoever described), (C) such action adds
additional Property as collateral to secure the Second Lien Notes unless Borrower
complies with Section 5.6 or (D) such action adds any covenants or defaults without
this agreement
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being contemporaneously amended to add substantially similar
covenants or defaults, provided that the foregoing shall not prohibit the execution of
supplemental agreements to add guarantors if required by the terms thereof provided
that any such guarantor also guarantees the Obligation pursuant to a written
guaranty in form and substance satisfactory to Administrative Agent and each of
Borrower and such guarantor otherwise complies with Section 5.1.”
2.5 Article X. Article X is hereby amended by adding a Section 10.4 to read as
follows:
“Section 10.4 Asset Coverage Ratio. During the period that any of the
Second Lien Notes are outstanding, as of any date of determination, the ratio of
Total PV then in effect to Total Debt (excluding the Convertible Notes) as of such
day shall not be less than 1.5 to 1.0.”
2.6 Section 10.3. Section 10.3 is hereby amended and restated in its entirety as
follows:
“Section 10.3 Total Debt to EBITDAX Ratio. The ratio of Total Debt of the
Companies as of any day to EBITDAX for the four fiscal quarters ending on the last
day of the fiscal quarter immediately preceding the date of determination for which
financial statements are available to be greater than (a) 4.25 to 1.0, for all
fiscal quarters beginning with the fiscal quarter ending June 30, 2007 and ending
with the fiscal quarter ending December 31, 2007 and (b) 3.5 to 1.0, commencing with
the fiscal quarter ending March 31, 2008 and thereafter; provided, however,
if Borrower enters into the Second Lien Term Loan Agreement, the ratio of Total Debt
(excluding the Convertible Notes) as of any day to EBITDAX for the four fiscal
quarters ending on the last day of the fiscal quarter immediately preceding the date
of determination for which financial statements are available to be greater than 3.0
to 1.0, commencing with the fiscal quarter in which Borrower enters into the Second
Lien Term Loan Agreement and thereafter.”
2.7 Section 11.12. Section 11.12 is hereby amended and restated in its entirety as
follows:
“The Intercreditor Agreement, after delivery thereof shall for any reason, except to
the extent permitted by the terms thereof, cease to be in full force and effect and
valid, binding and enforceable in accordance with its terms against Borrower or any
party thereto or holder of any Second Lien Notes or shall be repudiated by any of
them, or cause the Liens of the Second Lien Term Loan Documents to be senior or
pari passu in right to the Liens of this agreement, or any payment
by Borrower or any guarantor in violation of the terms of the Intercreditor
Agreement.”
2.8 Schedule 9.2. Item #8 on Schedule 9.2 is hereby amended and restated as follows:
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“8. Debt under the Second Lien Notes and any guarantees thereof, the
principal amount of which Debt does not exceed $100,000,000 in the aggregate, and
any refinancing or replacement thereof, subject to the Intercreditor Agreement.”.
2.9 Schedule 9.8. Schedule 9.8 is hereby amended by adding the following item #13:
“13. Payment of the purchase price for any call spread option permitted by Section
9.9(a).”
Section 3. Interim Redetermination of the Borrowing Base and Conforming Borrowing
Base. The Borrowing Base in effect as of the date hereof is acknowledged by Borrower,
Administrative Agent and the Lenders party hereto to be $170,000,000. The Conforming Borrowing
Base in effect as of the date hereof is acknowledged by Borrower, Administrative Agent and the
Lenders party hereto to be $150,000,000. Notwithstanding the foregoing, if Borrower enters into
the Second Lien Term Loan Agreement prior to the date of the next scheduled redetermination
pursuant to Section 2.6(b), then (i) upon receipt by Borrower of the initial advance under the
Second Lien Term Loan Agreement, the Borrowing Base and the Conforming Borrowing Base shall be
$150,000,000 and at such time, the Conforming Borrowing Base shall no longer be in effect, and (ii)
to the extent the outstanding principal balance of the Second Lien Notes exceeds $50,000,000, then
the Borrowing Base then in effect shall be further reduced by an amount equal to 0.30 multiplied by
the outstanding principal balance of the Second Lien Notes in excess of $50,000,000. Such
calculation shall exclude any original issue discount. In each case, the Borrowing Base as so
reduced shall become the new Borrowing Base immediately upon the date such loans are made,
effective and applicable to Borrower, the Administrative Agent, the Issuing Lenders and the Lenders
on such date until the next redetermination or modification thereof hereunder. The Borrowing Base
may be subject to further adjustments from time to time pursuant to Section 8.18(c) or Section
9.10(e).
Section 4. Conditions Precedent. This Eighth Amendment shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with
Section 14.8 of the Credit Agreement) (the “Effective Date”):
4.1 The Administrative Agent shall have received from the Determining Lenders, Borrower and
the Guarantors, counterparts (in such number as may be requested by Administrative Agent) of this
Eighth Amendment signed on behalf of such Persons.
4.2 No Default shall have occurred and be continuing, after giving effect to the terms of this
Eighth Amendment
4.3 The Administrative Agent shall have received such other documents as Administrative Agent
or special counsel to Administrative Agent may reasonably request.
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Section 5. Miscellaneous.
5.1 Confirmation. The provisions of the Credit Agreement, as amended by this Eighth
Amendment, shall remain in full force and effect following the effectiveness of this Eighth
Amendment.
5.2 Second Lien Term Loan Proceeds. Borrower and each Guarantor hereby covenants and
agrees that all of the proceeds of any loans made pursuant to the Second Lien Term Loan Agreement
will be used, upon receipt of such loan proceeds, to prepay Principal Debt and accrued and unpaid
interest up to the date of prepayment according to the terms of the Credit Agreement without a
termination of any of the Commitments.
5.3 Ratification and Affirmation; Representations and Warranties. Borrower and each
Guarantor hereby (a) acknowledges the terms of this Eighth Amendment; (b) ratifies and affirms its
obligations under, and acknowledges, renews and extends its continued liability under, each Loan
Document to which it is a party and agrees that each Loan Document to which it is a party remains
in full force and effect, except as expressly amended or modified hereby, notwithstanding the
amendments and modifications contained herein and (c) represents and warrants to the Lenders that
as of the date hereof, after giving effect to the terms of this Eighth Amendment: (i) all of the
representations and warranties contained in each Loan Document to which it is a party are true and
correct, except to the extent any such representations and warranties are expressly limited to an
earlier date, in which case, such representations and warranties shall continue to be true and
correct as of such specified earlier date, (ii) no Default has occurred and is continuing and (iii)
since November 17, 2005, there has been no event, development or circumstance that has had or could
reasonably be expected to have a Material Adverse Event.
5.4 Loan Document. This Eighth Amendment is a “Loan Document” as defined and
described in the Credit Agreement and all of the terms and provisions of the Credit Agreement
relating to Loan Documents shall apply hereto.
5.5 Counterparts. This Eighth Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of this Eighth Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
5.6 NO ORAL AGREEMENT. THIS EIGHTH AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
5.7 GOVERNING LAW. THIS EIGHTH AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF TEXAS.
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[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment to be duly
executed as of the date first written above.
| BORROWER: | XXXXXXXX PETROLEUM COMPANY, L.L.C. | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| & Chief Financial Officer | ||||
| GUARANTOR: | XXXXXXXX PETROLEUM CORPORATION | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
| & Chief Financial Officer | ||||
S-1
Signature Page to Eighth
Amendment to A&R Credit Agreement
| ADMINISTRATIVE AGENT: | BNP Paribas, as a Lender and as Administrative Agent | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
S-2
Signature Page to Eighth
Amendment to A&R Credit Agreement
| LENDER: | Comerica Bank, as Lender | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
S-3
Signature Page to Eighth
Amendment to A&R Credit Agreement
| LENDER: | BMO Capital Markets Financing, Inc. (formerly known as Xxxxxx Xxxxxxx Financing, Inc.), as Lender | |||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
S-4
Signature Page to Eighth
Amendment to A&R Credit Agreement
| LENDER: | Deutsche Bank Trust Company Americas, as Lender |
|||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
S-5
Signature Page to Eighth
Amendment to A&R Credit Agreement
