WAIVER, CONSENT AND FOURTH AMENDMENT TO AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT
Execution
Copy
WAIVER,
CONSENT AND FOURTH AMENDMENT TO
AMENDED
AND RESTATED FIRST LIEN CREDIT AGREEMENT
This
WAIVER, CONSENT AND FOURTH AMENDMENT TO AMENDED AND RESTATED FIRST LIEN CREDIT
AGREEMENT (“Amendment”), dated as
of September 11, 2009, is by and among Energy XXI Gulf Coast, Inc., a
Delaware corporation (the “Borrower”), the
lenders party to the First Lien Credit Agreement described below (the “Lenders”), and The
Royal Bank of Scotland plc, as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”), and the other parties in the capacities herein
identified.
RECITALS
WHEREAS,
the Borrower, the Lenders, the Administrative Agent and certain other Persons
are parties to the Amended and Restated First Lien Credit Agreement, dated as of
June 8, 2007, as modified by the Consent Regarding Amended and Restated
First Lien Credit Agreement dated as of July 27, 2007, as amended by that
certain First Amendment to Amended and Restated First Lien Credit Agreement
dated effective as of November 19, 2007, as amended by that certain Waiver,
Consent and Second Amendment to Amended and Restated First Lien Credit Agreement
dated effective as of December 1, 2008, as amended by the Third Amendment to
Amended and Restated First Lien Credit Agreement dated as of April 6, 2009, and
as modified by the Waiver and Consent to Amended and Restated First Lien Credit
Agreement dated as of June 30, 2009 (as so modified, and as amended,
supplemented, amended and restated or otherwise modified from time to time, the
“First Lien Credit
Agreement”);
WHEREAS,
the Borrower intends to tender for exchange (the “Exchange Offer”) at
least a majority in principal amount of the PP Notes outstanding (and not held
by Borrower or its Affiliates) pursuant to which the tendering holders of PP
Notes shall be entitled to receive Second Lien Notes (hereinafter defined) in a
principal amount determined at an exchange rate of 0.80 for tenders made prior
to a date that is ten (10) days following commencement of the offer and 0.75 for
tenders made after a date that is ten (10) days following but prior to
expiration of the offer;
WHEREAS,
in conjunction with the Exchange Offer, the Borrower intends to sell (the “Private Placement”)
an additional amount of Second Lien Notes in an aggregate principal amount of at
least $50,000,000 and not more than $89,000,000 (and, in connection therewith,
Parent will issue to each of the purchasers of such Second Lien Notes ordinary
shares in the amount of 220,412 shares for every $1,000,000 of such Second Lien
Notes such purchaser purchases as part of the Private Placement);
WHEREAS,
pursuant to the Exchange Offer and the Private Placement, the Borrower intends
to issue certain 16% second lien junior secured notes due 2014 in an aggregate
principal amount of up to $338,000,000 pursuant to that certain Indenture dated
on or about the Effective Date;
WHEREAS,
the Borrower has requested that the Administrative Agent, the Issuer, and the
Lenders amend the First Lien Credit Agreement in order to permit the Borrower to
enter into the Second Lien Indenture (as hereinafter defined) and to grant
certain collateral to secure the obligations under and in connection with the
Second Lien Indenture;
WHEREAS,
concurrently with issuing the Second Lien Notes (as hereinafter defined), EXXI,
Inc. will contribute the $126,000,000 principal amount of PP Notes to
the Borrower as a capital contribution and the Borrower will cancel such PP
Notes (the “Pledged
Notes Contribution and Cancellation”); and
WHEREAS,
the parties hereto desire to amend the First Lien Credit Agreement in certain
other respects as set forth herein.
NOW
Therefore, in consideration of the premises and the mutual covenants,
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
Section
1. Definitions. Capitalized
terms used herein but not defined herein shall have the meanings as given them
in the First Lien Credit Agreement, unless the context otherwise
requires.
Section
2. Amendments to
First Lien Credit Agreement. The First Lien Credit Agreement
is hereby amended as follows:
(a) Section
1.1.
(1) Section
1.1 of the First Lien Credit Agreement is hereby amended by deleting the
following terms therefrom: “Pledged Notes Sales Contribution”,
“Pledged Notes Security Agreement”, “PP Notes Letter Agreement”, “Second Lien
Administrative Agent”, “Second Lien Credit Agreement” and “Second Lien Loan
Documents”.
(2) Section
1.1 of the First Lien Credit Agreement is hereby amended by adding the following
definition(s) in the proper alphabetical order:
“Intercreditor
Agreement” means the Intercreditor Agreement, dated on or before
October 25, 2009, executed and delivered by the Administrative Agent, the
Second Lien Agents and the Obligors pursuant to the terms of this Agreement, as
amended, supplemented, amended and restated, replaced or otherwise modified from
time to time.
“Second Lien Agents”
means the “Trustee” and the “Collateral Agent” under the Second Lien Indenture,
and includes each other Person appointed as successors thereto
respectively.
“Second Lien
Indebtedness” means the Indebtedness and related monetary obligations of
the Borrower and the Guarantors (including, without limitation, all fees,
premiums, penalties, yield protections, breakage costs, damages, indemnification
obligations, reimbursement obligations and expenses (including, without
limitation, reasonable fees and expenses of counsel, accountants and other
professional advisors), together with interest on the foregoing) arising or
incurred under the Second Lien Indenture, the Second Lien Notes and the other
Second Lien Note Documents.
2
“Second Lien
Indenture” means the Indenture, dated on or before
October 25, 2009, pursuant to which the Second Lien Notes are issued,
as amended, supplemented, amended and restated, refinanced or otherwise modified
from time to time in accordance with Section 7.2.11
and the Intercreditor Agreement.
“Second Lien Note
Documents” means the Second Lien Indenture, the Second Lien Notes and the
other agreements, documents or instruments delivered in connection with any of
the foregoing (including, without limitation, the “Security Documents” (as
defined in the Second Lien Indenture)).
“Second Lien
Noteholders” shall have the meaning given to the term “Noteholders” in
the Second Lien Indenture (or such corresponding term in the event the
Borrower’s obligations under the Second Lien Indenture are refinanced in
accordance with the terms hereof and of the Intercreditor
Agreement).
“Second Lien Notes”
means the Borrower’s 16% second lien junior secured notes due 2014 and shall
have the meaning given the term “Notes” as defined in the Second Lien Indenture
(or such corresponding term in the event the Borrower’s obligations under the
Second Lien Indenture are refinanced in accordance with the terms hereof and of
the Intercreditor Agreement); for the avoidance of doubt, the “Second Lien
Notes” shall include any Notes (as defined in the Second Lien Indenture) issued
under the Second Lien Indenture in capitalization of Borrower’s interest payment
obligations on then outstanding Second Lien Notes.
(3) The
definition of “Change in Control” in Section 1.1 of the First Lien Credit
Agreement is hereby amended by adding the phrase “or under any Second Lien Note
Documents” after the phrase “under a Loan Document” in the parenthetical at the
end of each of subsections (b) and (c) thereof.
(4) The
definition of “Interest Expense” in Section 1.1 of the First Lien Credit
Agreement is hereby amended by adding the phrase “and the Second Lien Note
Documents” after the phrase “and the PP Debt Documents”.
(5) The
definition of “Loan Documents” in Section 1.1 of the First Lien Credit Agreement
is hereby amended by adding the phrase “the Intercreditor Agreement,” after the
phrase “each Guaranty,” in the fifth line thereof.
3
(6) The
definition of “No Less Favorable Terms and Conditions” in Section 1.1 of the
First Lien Credit Agreement is hereby amended and restated as
follows:
“No Less Favorable Terms and
Conditions” means, with respect to any refinancing of any Indebtedness
permitted hereunder, terms and conditions that are, taken as a whole, no less
favorable to the Lenders and evidenced by documentation that shall not (a)
increase the principal amount of or interest rate on such outstanding
Indebtedness, (b) reduce either the tenor or the average life of such
Indebtedness, (c) change the respective primary obligor(s) on the refinancing
Indebtedness, (d) change the security, if any, for the refinancing Indebtedness
(except to the extent that only a subset of existing security is granted to
holders of such refinancing Indebtedness) or (e) afford the holders of such
refinancing Indebtedness other covenants, defaults, rights or remedies, taken as
a whole, more burdensome to the obligor(s) than those contained in such
Indebtedness (and in the case of PP Debt and Second Lien Indebtedness, none of
the provisions contained in the refinancing Indebtedness shall be materially
more favorable taken as a whole to the Noteholders or the Second Lien
Noteholders, as the case may be, than the corresponding provision in the
Indenture or the Second Lien Indenture, as the case may be, as in effect at the
time of such refinancing).
(7) The
definition of “Obligor” in Section 1.1 of the First Lien Credit Agreement
is hereby amended and restated as follows:
“Obligor” means, as
the context may require, the Borrower and each other Person that is a Subsidiary
of the Parent that is obligated under any Loan Document.
(8) The
definition of “Total Debt” in Section 1.1 of the First Lien Credit Agreement is
hereby amended and restated as follows:
“Total Debt” means, on
any date and without duplication, the outstanding principal amount of all
Indebtedness of the Borrower and its Subsidiaries of the type referred to in
clause (a)
(which, in the case of the Loans or PP Debt or Second Lien Indebtedness, shall
be deemed to equal the actual daily amount of the Loans or PP Notes or Second
Lien Notes, as the case may be, outstanding for such date), clause (b) (which, in
the case of Letter of Credit Outstandings shall be deemed to equal the actual
daily amount of Letter of Credit Outstandings for such date), clause (c), clause (f) (but
excluding any current non-cash asset or liability (including in respect of
Hedging Agreements) described in or calculated pursuant to the requirements of
Statement of Financial Accounting Standards 133 and 143, in each case as amended
(provided that, for the avoidance of doubt, the calculation of Total Debt shall
include any current assets or liabilities in respect of the termination of any
Hedging Agreement), and clause (g), in each
case of the definition of “Indebtedness” (exclusive of intercompany Indebtedness
between the Borrower and its Subsidiaries but including the Indebtedness in
respect of principal hereunder and under the PP Notes and under the Second Lien
Notes, as the case may be) and any Contingent Liability in respect of any of the
foregoing.
4
(9) The
definition of “Transaction Documents” in Section 1.1 of the First Lien Credit
Agreement is hereby amended and restated in its entirety as
follows:
“Transaction
Documents” means, collectively, the PP Debt Documents, the Second Lien
Note Documents, the PSA and the documents and agreements executed and delivered
in connection with the PSA, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with Section
7.2.11.
(b) Section
2.1.2. The last sentence of Section 2.1.2 of the First Lien
Credit Agreement is hereby amended and restated as follows:
“Notwithstanding
anything herein to the contrary, no Issuer shall be obligated to issue, renew or
extend a Letter of Credit if (i) any Lender is at such time an Impacted Lender
hereunder or (ii) the Administrative Agent or the Issuer in good faith
determines that there is a reasonable possibility that a Lender may become an
Impacted Lender, unless such Issuer has entered into arrangements reasonably
satisfactory to such Issuer with the Borrower or such Lender to eliminate such
Issuer’s risk with respect to such Lender.”
(c) Section
6.21. Section 6.21 of the First Lien Credit Agreement is
hereby amended and restated in its entirety as follows:
“SECTION
6.21. Restrictions on
Liens. Other than as provided under the Second Lien Note
Documents and the PP Debt Documents, neither the Borrower nor any of its
Subsidiaries is a party to any material agreement or arrangement or subject to
any order, judgment, writ or decree, that either restricts or purports to
restrict its ability to grant Liens to the Administrative Agent and the Lenders
on or in respect of their Properties to secure the Obligations and the Loan
Documents.”
(d) Section
7.1.1(i). Section 7.1.1(i) of the First Lien Credit Agreement
is hereby amended by adding the phrase “or the Second Lien Indenture” after the
word “Indenture” and before the comma following the word “Indenture” in such
Section.
(e) Section
7.2.2(g). Section 7.2.2(g) of the First Lien Credit Agreement
is hereby amended and restated in its entirety as follows:
“(g) Indebtedness
incurred pursuant to (i) the PP Debt Documents, and Contingent Liabilities of
the Subsidiary Guarantors in respect of the PP Debt; and, the refinancing of all
such Indebtedness so long as such refinancing is on No Less Favorable Terms and
Conditions, provided, however, that such
Indebtedness (x) is unsecured and does not exceed an aggregate outstanding
principal amount of U.S.$400,000,000 and (y) does not have a maturity date
that is prior to the later to occur of (A) the date that is six (6) months after
the Stated Maturity Date or (B) the date that is the originally scheduled
“Stated Maturity” (as defined in the Indenture) with respect to the payment of
principal on the PP Notes and (ii) the Second Lien Note Documents (in an
aggregate principal amount not to exceed the sum of (x) $338,000,000 plus (y) the aggregate
principal amount of Indebtedness resulting from the capitalization of interest
through either the increase of principal amount of outstanding Second Lien Notes
or the issuance of additional Second Lien Notes thereunder or a combination
thereof), and Contingent Liabilities of the Subsidiary Guarantors in respect of
the Second Lien Indebtedness, and the refinancing of all such Indebtedness so
long as (A) such refinancing is on No Less Favorable Terms and Conditions and is
in accordance with the terms and provisions of this Agreement and the
Intercreditor Agreement and (B) the trustee or other agent in respect of such
refinancing Indebtedness executes and delivers the Intercreditor Agreement
unless such Indebtedness is not secured by assets and properties of the Borrower
and its Subsidiaries;”
5
(f) Section
7.2.3(k). Section 7.2.3(k) of the First Lien Credit Agreement
is hereby amended and restated in its entirety as follows:
“(k) Liens
securing Second Lien Indebtedness and refinancings of such Second Lien
Indebtedness permitted under clause (g) of Section 7.2.2;
provided however, that (i)
each and every Lien securing the Second Lien Indebtedness shall be subordinated
to the Liens securing the Obligations, this Agreement and the other Loan
Documents and (ii) no Lien shall be granted on any Property to secure the Second
Lien Indebtedness unless the Lien is also being granted to secure the
Obligations, this Agreement and the other Loan Documents;”
(g) Section
7.2.11(a). Section 7.2.11(a) of the First Lien Credit
Agreement is hereby amended and restated in its entirety as
follows:
“(a) any
of the Transaction Documents (other than the PP Debt Documents and the Second
Lien Note Documents), other than non-material amendments, supplements, waivers
or other modifications that individually or in the aggregate would not be
materially adverse to the Secured Parties;”
(h) Section
7.2.11(c). Section 7.2.11(c) of the First Lien Credit
Agreement is hereby amended and restated in its entirety as
follows:
“(c) any
of (i) the PP Debt Documents that results or causes or has the effect of doing
any of the following: (A) increasing the then outstanding aggregate
principal amount of the PP Notes to an amount exceeding $400,000,000, (B)
contravening the provisions of this Agreement, (C) increasing the interest,
premium or the yield on the PP Notes beyond the interest, yield or premium
specified in the PP Debt Documents as of June 8, 2007, (D) providing for dates
for payment of principal, interest, premium (if any), yield or fees which are
earlier than such dates under the Indenture as in effect on June 8, 2007, (E)
providing for any covenant, event of default or remedy which is more restrictive
on any Obligor than that set forth in the Indenture as in effect on June 8,
2007, (F) providing for redemption, prepayment or defeasance provisions that are
more burdensome on any Obligor than those set forth in the Indenture as in
effect on June 8, 2007, (G) providing for collateral securing Indebtedness
thereunder, or (H) increasing the obligations of any Obligor or conferring any
additional rights on any holder of PP Debt which could reasonably be expected to
be adverse to the Secured Parties, or (ii) the Second Lien Note Documents, other
than any such amendment, supplement, waiver or modification permitted in
accordance with the Intercreditor Agreement and in accordance with the
provisions of this Agreement.”
6
(i) Section
7.2.13. Section 7.2.13 of the First Lien Credit Agreement is
hereby amended by adding the phrase “or in the Second Lien Note Documents, as
the case may be” at the end of the last sentence of such Section before the
period.
(j) Section
7.2.21. The First Lien Credit Agreement is hereby amended by
adding the following Section 7.2.21 after Section 7.2.20:
“SECTION
7.2.21. No
Prepayment of Second Lien Notes. The Borrower will not, and
will not permit any of its Subsidiaries to, prior to the date that is ninety-one
(91) days after the Stated Maturity Date:
(a) make
any payment or prepayment of principal of, or premium or interest on, any Second
Lien Indebtedness other than (to the extent permitted by the Intercreditor
Agreement): (i) with respect to interest, (A) on the stated,
scheduled dates for payment of interest set forth in the Second Lien Indenture
or (B) upon any refinancing of Second Lien Indebtedness permitted hereunder, or
(ii) with respect to principal, (A) on the date of the “Stated Maturity” (as
defined in the Second Lien Indenture) with respect to the payment of principal
on the Second Lien Notes, (B) on each scheduled date for payment of principal or
as required in connection with a mandatory prepayment, redemption or defeasance
of the Second Lien Notes under the Second Lien Indenture, so long as on the date
of such payment (1) no Default or Event of Default or Borrowing Base
Deficiency has occurred and is continuing or would result therefrom and (2) the
Borrower has paid any Obligations required to be paid hereunder pursuant to the
terms of this Agreement, or (C) upon any refinancing of Second Lien Indebtedness
permitted by this Agreement and the Intercreditor Agreement;
(b) redeem,
retire, purchase, defease or otherwise acquire any Second Lien Indebtedness
(except as set forth in clause (a));
or
(c) make
any deposit (including the payment of amounts into a sinking fund or other
similar fund) for any of the foregoing purposes other than, in each case, in
connection with a refinancing of Second Lien Indebtedness (to the extent of such
Indebtedness being refinanced) on No Less Favorable Terms and Conditions and in
accordance with the terms of the Intercreditor Agreement.”
7
(k) Section
8.1.3. Section 8.1.3 of the First Lien Credit Agreement is
hereby amended by deleting the words “or Parent or EXXI, Inc. shall default
under any obligation under the PP Notes Letter Agreement” at the end of such
Section.
(l) Section
8.1.4. Section 8.1.4 of the First Lien Credit Agreement is
hereby amended by deleting the words “and/or EXXI, Inc. shall default in the
performance or observance of any of its obligations under the Pledged Notes
Security Agreement” immediately following the words “executed by it”
therein.
(m) Section
8.1.5. Section 8.1.5 of the First Lien Credit Agreement is
hereby amended by inserting the phrase “or the Second Lien Indenture” at the end
of such Section before the period.
(n) Section
8.1.11. The First Lien Credit Agreement is hereby amended by
inserting the following Section 8.1.11 after Section 8.1.10,
“SECTION
8.1.11. Intercreditor
Agreement. The Intercreditor Agreement, after execution and
delivery thereof by the parties thereto, shall for any reason, except to the
extent expressly permitted by the terms thereof, cease to be in full force and
effect and valid, binding and enforceable in accordance with its terms against
the Borrower, each party thereto and each holder of any of the Second Lien
Indebtedness or shall be repudiated by any of them or any party thereto shall
contest the validity, binding or enforceable effect thereof: or any
payment shall be made by the Borrower or any Guarantor in violation of the terms
of the Intercreditor Agreement.”
(o) Section
9.12(b). The last sentence of Section 9.12(b) of the First
Lien Credit Agreement is hereby amended and restated in its entirety as
follows:
“Each
Lender hereby authorizes and consents to the Administrative Agent’s entering
into and performing the Intercreditor Agreement and hereby agrees to be bound by
the terms and provisions of the Intercreditor Agreement.”
(p) Section
10.19. The first sentence of Section 10.19 of the First Lien
Credit Agreement is hereby amended by adding the phrase “the Intercreditor
Agreement and” at the end of such sentence before the phrase “the Security
Documents.”
(q) Disclosure
Schedule. The Disclosure Schedule to the First Lien Credit
Agreement is hereby amended by deleting Item 6.19(a) thereof in its entirety and
replacing it in its entirety with Item 6.19(a) to the Disclosure Schedule
attached hereto as Annex I.
Section
3. Borrowing
Base. The Borrower and the Lenders hereby agree that effective
as of the Effective Date, the Borrowing Base shall be equal to $199,000,000
until such time as the Borrowing Base is redetermined or otherwise adjusted
pursuant to the terms of the First Lien Credit Agreement.
8
Section
4. Waiver; Consent;
Termination; Further Assurances.
(a) Waiver and
Consent: Subject to the terms and conditions of this
Amendment, the Administrative Agent, the Issuers and the undersigned Lenders
hereby consent to the Borrower’s and the Obligors’ making of the Exchange Offer,
offering of the Private Placement, performing the Pledged Notes Contribution and
Cancellation and consummating the transactions contemplated by the Second Lien
Note Documents to be consummated in conjunction with this Amendment
notwithstanding that such actions and consummation may not comply with or
observe the terms of the First Lien Credit Agreement and other Loan Documents as
in effect without the benefit of the amendments, supplements or other
modifications set forth in this Amendment, including as set forth under Sections
6.6, 7.2.2(g), 7.2.6, 7.2.11, 7.2.15 of the First Lien Credit Agreement, Section
4.1 of the Pledged Notes Security Agreement and Sections 3.5 and 4.1 of the
Intermediate Holdco Pledge Agreement (and waive any Default or Event of Default
to the extent it would arise therefrom but for the amendments, supplements and
other modifications set forth in this Agreement).
(b) Termination. The
Administrative Agent, the Issuer and the Lenders hereby acknowledge and agree
that, upon the satisfaction of the condition set forth in Section 5(e)(iv)
below, the Pledged Notes Security Agreement and the PP Notes Letter Agreement
shall terminate and such agreements and each other agreement, certificate,
document or instrument specifically delivered in connection therewith shall be
of no further force and effect (subject only the provisions thereof regarding
reinstatement).
(c) Further
Assurances. Subject to the terms and provisions of the First
Lien Credit Agreement and the Intercreditor Agreement and at the Borrower’s cost
and expense, the Administrative Agent agrees to use its reasonable efforts to
assist the Obligors to effectuate the terms of this Amendment (including,
without limitation, the Pledged Notes Contribution and Cancellation) and the
granting of mortgages and security interests and perfection of such interests in
accordance with the terms of the Second Lien Note Documents and entering into
amendments or otherwise applicable modifications of each Control Agreement
required presently or in the future in effect.
Section
5. Conditions to
Effectiveness. This Amendment shall be deemed effective
(subject to the conditions herein contained) as of the date (the “Effective Date”) of
satisfaction of all of the following conditions:
(a) the
Administrative Agent shall have received counterparts hereof duly executed by
the Borrower, the Administrative Agent, the Issuers and the Required
Lenders;
(b) the
Administrative Agent shall have received for the account of each Lender that has
delivered its executed counterpart this Amendment to the Administrative Agent on
or prior to the Effective Date, an amendment fee for each such Lender in an
amount equal to 100 basis points on such Lender’s Percentage of the Borrowing
Base established pursuant to this Agreement;
9
(c) the
Administrative Agent shall have received, and each shall be in form and
substance satisfactory to it and to the Required Lenders, copies of the
Intercreditor Agreement, the Second Lien Indenture and each of the Second Lien
Note Documents certified by the Borrower as being true, correct and complete
copies thereof;
(d) Borrower
shall execute and deliver or cause to be executed and delivered to the
Administrative Agent, all agreements, documents, instruments and other writings
described in Section 5.1.2 of the First Lien Credit Agreement with respect to
such Obligor; provided that any
such agreements and other writings previously delivered by Borrower or any other
Obligor to the Administrative Agent may be incorporated by reference into the
certificate duly executed and delivered by the Borrower’s Secretary or Assistant
Secretary hereunder;
(e) the
Administrative Agent shall have received evidence, satisfactory to it, that (i)
the Borrower shall have concurrently received offers to exchange and have
exchanged at least $311,000,000 of outstanding PP Notes for Second Lien Notes at
an exchange rate of not greater than $0.80 of the principal amount of Second
Lien Notes to $1.00 of principal amount of PP Notes, (ii) the Borrower shall
have received at least $50,000,000 in cash for additional Second Lien Notes,
(iii) $41,000,000 of such proceeds will be used to repay concurrently
outstanding Loans under the First Lien Credit Agreement, and (iv) Energy XXI
(Bermuda) Limited and its subsidiaries have contributed $126 million of the PP
Notes to the Borrower and that the Borrower has cancelled such PP Notes;
and
(f) Borrower
shall receive 90% of the amount of any cash proceeds in excess of $50,000,000
paid as purchase price in respect of the Private Placement (with the Parent and
its other Subsidiaries entitled to receive the remaining 10% of cash proceeds of
such excess amount) and shall either (i) use such amount to repay outstanding
Loans under the First Lien Credit Agreement (but any such repayment shall not be
in or otherwise cause a reduction of the Borrowing Base thereunder) or (ii)
deposit such amount into a Deposit Account that is subject to a Control
Agreement in favor of the Administrative Agent.
Section
6. Representations and
Warranties. The Borrower hereby represents and warrants that
after giving effect hereto:
(a) the
representations and warranties of the Obligors contained in the Loan Documents
(other than Section 6.17 of the First Lien Credit Agreement solely with respect
to the Xxxxxx Hedging Agreement (as defined in the Second Amendment)) are true
and correct in all material respects, other than those representations and
warranties that expressly relate solely to a specific earlier date, which shall
remain correct in all material respects as of such earlier date;
(b) the
execution, delivery and performance by the Borrower and each other Obligor of
this Amendment and the other Loan Documents have been duly authorized by all
necessary corporate or other action required on their part and this Amendment,
along with the First Lien Credit Agreement and other Loan Documents, constitutes
the legal, valid and binding obligation of each Obligor a party thereto
enforceable against them in accordance with its terms, except as its
enforceability may be affected by the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors
generally;
10
(c) neither
the execution, delivery and performance of this Amendment by the Borrower and
each other Obligor, the performance by them of the First Lien Credit Agreement
nor the consummation of the transactions contemplated hereby does or shall
contravene, result in a breach of, or violate (i) any provision of any Obligor’s
certificate or articles of incorporation or bylaws or other similar documents,
or agreements, (ii) any law or regulation, or any order or decree of any court
or government instrumentality, or (iii) any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which any Obligor or any of its
Subsidiaries is a party or by which any Obligor or any of its Subsidiaries or
any of their property is bound, except in any such case to the extent such
conflict or breach has been waived by a written waiver document, a copy of which
has been delivered to Administrative Agent on or before the date
hereof;
(d) no
Material Adverse Effect has occurred since June 30, 2008; and
(e) no
Default or Event of Default or Borrowing Base Deficiency has occurred and is
continuing.
Section
7. Loan Document;
Ratification.
(a) This
Amendment is a Loan Document.
(b) The
Borrower and each other Obligor hereby ratifies, approves and confirms in every
respect all the terms, provisions, conditions and obligations of the First Lien
Credit Agreement and each of the other Loan Documents (other than the Xxxxxx
Hedging Agreement (as defined in the Second Amendment)), including without
limitation all Mortgages, Security Agreements, Guaranties, Control Agreements
and other Security Documents, to which it is a party.
Section
8. Costs And
Expenses. As provided in Section 10.3 of the First Lien Credit
Agreement, the Borrower agrees to reimburse Administrative Agent for all fees,
costs, and expenses, including the reasonable fees, costs, and expenses of
counsel or other advisors for advice, assistance, or other representation, in
connection with this Amendment and any other agreements, documents, instruments,
releases, terminations or other collateral instruments delivered by the
Administrative Agent in connection with this Amendment.
Section
9. GOVERNING
LAW. THIS AMENDMENT SHALL BE DEEMED A CONTRACT AND INSTRUMENT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE
LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
Section
10. Severability. Any
provision of this Amendment that is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Amendment or affecting the validity or
enforceability of such provision in any other jurisdiction.
11
Section
12. No
Waiver. The express waivers set forth herein are limited to
the extent expressly provided in this Amendment and, except as expressly set
forth in this Agreement, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any default of the Borrower or any
other Obligor or any right, power or remedy of the Administrative Agent or the
other Secured Parties under any of the Loan Documents, nor constitute a waiver
of (or consent to departure from) any terms, provisions, covenants, warranties
or agreements of any of the Loan Documents. The parties hereto
reserve the right to exercise any rights and remedies available to them in
connection with any present or future defaults with respect to the First Lien
Credit Agreement or any other provision of any Loan Document.
Section
13. Successors and
Assigns. This Amendment shall be binding upon the Borrower and
its successors and permitted assigns and shall inure, together with all rights
and remedies of each Secured Party hereunder, to the benefit of each Secured
Party and the respective successors, transferees and assigns.
Section
14. Entire
Agreement. THIS AMENDMENT, THE FIRST LIEN CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF 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.
[Signature
Pages Follow]
12
In
Witness Whereof, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of the
date first written above.
| BORROWER: | |||
| ENERGY XXI GULF COAST, INC. | |||
|
|
By:
|
/s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | ||
| Title: | Chief Financial Officer | ||
S -
1
| ADMINISTRATIVE AGENT, ISSUERS AND LENDERS: | |||
| THE ROYAL BANK OF SCOTLAND plc, as Administrative Agent, Issuer and Lender | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | ||
| Title: | Managing Director | ||
S -
2
| BNP PARIBAS, as Issuer and Lender | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | ||
| Title: | Managing Director | ||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | ||
| Title: | Director | ||
S -
3
| BMO CAPITAL MARKETS FINANCING, INC., as Lender | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
S -
4
| GUARANTY BANK, FSB, as Lender | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx III | |
| Name: | Xxxxx X. Xxxxxx III | ||
| Title: | Senior Vice-President | ||
S -
5
| AMEGY BANK NATIONAL ASSOCIATION, as Lender | |||
|
|
By:
|
/s/ W. Xxxxx Xxxxxxx | |
| Name: | W. Xxxxx Xxxxxxx | ||
| Title: | Senior Vice President | ||
X -
0
| XXX XXXX XX XXXX XXXXXX, as Lender | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | ||
| Title: | Managing Director | ||
S -
7
| XXXXXX COMMERCIAL PAPER INC., as Lender | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | ||
| Title: | Authorized Signatory | ||
S -
8
| TORONTO DOMINION (TEXAS) LLC, as Lender | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | ||
| Title: | Authorized Signatory | ||
S -
9
| CAPITAL ONE, NATIONAL ASSOCIATION, as Lender | |||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Name: | Xxxxx Xxxx | ||
| Title: | Assistant Vice President | ||
S -
10
| NATIXIS, as Lender | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | ||
| Title: | Managing Director | ||
|
|
By:
|
/s/ Liana Tchernysheva | |
| Name: | Liana Tchernysheva | ||
| Title: | Director | ||
S -
11
| ALLIED IRISH BANKS p.l.c., as Lender | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | ||
| Title: | Senior Vice President | ||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | ||
| Title: | Assistant Vice President | ||
S -
12
| CREDIT SUISSE, as Lender | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxxxx | ||
| Title: | Vice President | ||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | ||
| Title: | Assistant | ||
S -
13
| UBS LOAN FINANCE LLC, as Lender | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | ||
| Title: | Associate Director | ||
|
|
By:
|
/s/ Xxxx X. Xxxx | |
| Name: | Xxxx X. Xxxx | ||
| Title: | Assistant Director | ||
S -
14
| WHITNEY NATIONAL BANK, as Lender | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | ||
| Title: | Officer | ||
S -
15
| ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST ABOVE WRITTEN: | |||
| ENERGY XXI GOM, LLC | |||
|
|
By:
|
/s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | ||
| Title: | Chief Financial Officer | ||
| ENERGY XXI TEXAS ONSHORE, LLC | |||
|
|
By:
|
/s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | ||
| Title: | Chief Financial Officer | ||
| ENERGY XXI ONSHORE, LLC | |||
|
|
By:
|
/s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | ||
| Title: | Chief Financial Officer | ||
S -
16
| ACKNOWLEDGED AND AGREED AS OF THE DATE FIRST ABOVE WRITTEN IN ITS CAPACITY AS GUARANTOR UNDER ITS LIMITED RECOURSE GUARANTY AND GRANTOR UNDER ITS PLEDGE AGREEMENT AND IRREVOCABLE PROXY DELIVERED IN CONNECTION WITH THE FIRST LIEN CREDIT AGREEMENT: | |||
| ENERGY XXI USA, INC. | |||
|
|
By:
|
/s/ Xxxx Xxx | |
| Name: | Xxxx Xxx | ||
| Title: | Chief Financial Officer | ||
S -
17
ANNEX
I
Item
6.19(a) of Disclosure Schedule
|
Obligor
|
Depository
Institution
|
Account
Number
|
||
|
Borrower
|
Guaranty
Bank, FSB
|
3804623571
|
||
|
Borrower
|
Amegy
Bank National Association
|
0053059839
|
||
|
Borrower
|
Amegy
Bank National Association
|
0953059839
|
||
|
EXXI
GOM
|
Guaranty
Bank, FSB
|
3804623704
|
||
|
EXXI
GOM
|
Guaranty
Bank, FSB
|
3804629479
|
||
|
EXXI
GOM
|
Guaranty
Bank, FSB
|
3804626392
|
||
|
Energy
XXI Onshore, LLC
|
Guaranty
Bank, FSB
|
3804623696
|
||
|
Energy
XXI Gulf Coast, Inc.
|
The
Royal Bank of Scotland plc
|
RBSEXC
|
Annex
I
