Exhibit 10.24
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of March
6, 2006, is between: (i) CRIMSON EXPLORATION INC., a Delaware corporation
("Borrower"), (ii) CRIMSON EXPLORATION OPERATING, INC., a Delaware corporation
(the "Post-Merger Guarantor"), SUCCESSOR BY MERGER TO SETEX OIL AND GAS COMPANY,
a Texas corporation, RIGWEST WELL SERVICE, INC., a Texas corporation, SOUTHEAST
TEXAS OIL & GAS CO., LLC, a Texas limited liability company, GULFWEST
DEVELOPMENT COMPANY, a Texas corporation ("GulfWest Development"), DUTCHWEST OIL
COMPANY, a Texas corporation, GULFWEST OIL & GAS COMPANY, a Texas corporation
("GulfWest Texas"), GULFWEST OIL & GAS COMPANY (LOUISIANA) LLC, a Louisiana
limited liability company ("GulfWest Louisiana"), GULFWEST TEXAS COMPANY, a
Texas corporation, and S.G.C. TRANSMISSION, LLC, a Texas limited liability
company (collectively, the "Pre-Merger Guarantors"), (iii) LTW PIPELINE CO., a
Texas corporation ("LTW" and individually and collectively with the Post-Merger
Guarantor, "Guarantor"), and (iv) XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as Agent for the Lenders ("Agent"), with reference
to the following facts:
RECITALS:
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WHEREAS, Borrower and Agent entered into that certain Credit Agreement dated as
of July 15, 2005 (as same may be amended, restated, increased, supplemented,
and/or otherwise modified, the "Agreement"), as evidenced by, among other
things, that certain Revolving Credit Note in the original principal amount of
$100,000,000.00 (as same may be amended, restated, increased, renewed, extended,
supplemented, and/or otherwise modified, the "Note").
WHEREAS, the Pre-Merger Guarantors along with LTW, guaranteed payment of the
indebtedness evidenced by the Note as well as the performance and payment of the
other Obligations, as evidenced by, among other things, those certain Guaranty
Agreements dated as of even date with the Agreement and executed by each
Pre-Merger Guarantor and LTW.
WHEREAS, the Post-Merger Guarantor, also guaranteed payment of the indebtedness
evidenced by the Note as well as the performance and payment of the other
Obligations, as evidenced by, among other things, that certain Guaranty
Agreement dated as of January 5, 2006.
WHEREAS, pursuant to the Loan Documents, Agent has a security interest in, or
lien upon, among other things, certain of Borrower's, LTW's, and Pre-Merger
Guarantor's personal and real property as more particularly described in the
Loan Documents (all of the collateral described in any and all of the Loan
Documents is herein called the "Collateral") including, but not limited to, the
personal property described in those certain Third Party Security Agreements,
dated of even date with the Agreement, executed by each Pre-Merger Guarantor and
LTW, respectively, and the Security Agreement dated as of July 15, 2005,
executed by Borrower, all for the benefit of Agent (collectively, as amended,
restated, supplemented and/or otherwise modified, the "Security Agreements"),
and the real and personal property described in each of those certain Mortgage,
Deed of Trust, Assignment of Production, Security Agreement, Fixture Filing and
Financing Statements (the "Mortgages") each executed by GulfWest Louisiana,
GulfWest Texas, and GulfWest Development, respectively, which Security
Agreements and Mortgages secure, among other things, the Obligations.
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WHEREAS, Borrower advised Agent that the Pre-Merger Guarantors were
merged as of March 2, 2006, with and into Post-Merger Guarantor and that the
assets, obligations, and liabilities of the Pre-Merger Guarantors will now be
held in the name of Post-Merger Guarantor (the above described merger is herein
referred to as the "Merger").
WHEREAS, by operation of the Delaware General Corporation Law, the
Pre-Merger Guarantors' rights, obligations, duties, and responsibilities under
the Loan Documents are assigned to and assumed by Post-Merger Guarantor as a
result of the Merger.
WHEREAS, although not required by the Loan Documents, Borrower has
requested that Agent consent to the Merger and the assignment and assumption of
the Post-Merger Guarantor of the Pre-Merger Guarantors' obligations and
liabilities under the Loan Documents as a result of the Merger and the
transactions described herein, and Agent has agreed to provide such consent,
subject to the further terms and conditions hereof.
WHEREAS, the parties hereto now wish to amend and modify the Loan
Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the benefits accruing to the parties hereto,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
Definitions
Capitalized terms used in this Amendment, to the extent not otherwise
defined herein, shall have the same meanings as in the Agreement, as amended
hereby.
Amendments and Consent
Amendment to Schedules of the Agreement. Effective as of the date hereof, the
following Schedules attached to the Agreement are hereby amended in their
entirety as follows:
Schedule 7.14 (Borrower & Subsidiaries Locations, Jurisdictions & Taxpayer I.D.
Numbers) of the Agreement is hereby replaced in its entirety by Schedule 7.14
attached hereto, and accordingly, LTW shall be deemed an Active Subsidiary in
accordance with such revised Schedule.
Schedule 7.28 (Guarantor's Taxpayer Identification Numbers and States of
Formation) of the Agreement is hereby replaced in its entirety by Schedule 7.28
attached hereto.
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References to Pre-Merger Guarantors. The Loan Documents are hereby modified so
that any reference to the Pre-Merger Guarantors (individually or collectively)
contained in the Loan Documents shall now refer to the Post-Merger Guarantor and
each of the Pre-Merger Guarantors' addresses shall be the address of the
Post-Merger Guarantor as noted herein.
Consent. Agent hereby consents to the Merger and the transfer of that portion of
the Collateral owned by the Pre-Merger Guarantors to Post-Merger Guarantor and
the assumption by Post-Merger Guarantor of all obligations and liabilities of
Pre-Merger Guarantors evidenced by the Loan Documents and to the other matters
described herein. Agent's consent shall not constitute a waiver of Agent's right
to accelerate the obligations under the Note in the event of a subsequent sale,
transfer, or encumbrance of the Collateral or any interest therein, as set forth
in any of the Security Agreements or otherwise, nor shall Agent's consent
constitute Agent's waiver of any other term, covenant, or condition of any of
the Loan Documents.
Ratifications, Representations and Warranties
Ratifications. The terms and provisions set forth in this Amendment shall modify
and supersede all inconsistent terms and provisions set forth in the Agreement
and except as expressly modified and superseded by this Amendment, the terms and
provisions of the Agreement are ratified and confirmed and shall continue in
full force and effect. Borrower, Guarantor, and Agent agree that the Agreement
as amended hereby shall continue to be legal, valid, binding, and enforceable in
accordance with its terms. The terms, provisions, and conditions of any and all
of the Loan Documents including, without limitation, the Note, the Security
Agreements, and the Mortgages are hereby ratified and confirmed in every respect
by Borrower and each Guarantor and shall continue in full force and effect.
Representations and Warranties. Borrower and each Guarantor hereby represent and
warrant to Agent that: (i) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and Guarantor and will not violate the certificate or
articles of incorporation or bylaws of Borrower or any Guarantor, (ii) the
representations and warranties contained in the Agreement, as amended hereby,
and any other Loan Document are true and correct on and as of the date hereof as
though made on and as of the date hereof, except to the extent that any such
representation and warranty expressly relates solely to an earlier date (in
which case such representation and warranty shall be true and correct on and as
of such earlier date), (iii) no Event of Default has occurred and is continuing
and no event or condition has occurred that with the giving of notice or lapse
of time or both would be an Event of Default, and (iv) Borrower and each
Guarantor are in full compliance with all covenants and agreements contained in
the Agreement as amended hereby; provided, however, that Post-Merger Guarantor
has not qualified to do business in any foreign jurisdiction other than
Colorado.
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Miscellaneous
Security Instruments and Non-Impairment of Lien. All Loan Documents shall secure
the indebtedness evidenced by the Note and the other Loan Documents, as such
indebtedness is affected by this Amendment, whether or not such Loan Documents
shall be expressly amended or supplemented in connection with this Amendment.
Except as expressly provided herein, nothing contained in this Amendment shall:
(i) alter or affect any provision, condition or covenant contained in the Note,
the Agreement, the Security Agreements, the Mortgages, or the other Loan
Documents or affect or impair any rights, powers, or remedies thereunder, it
being the intent hereof that the provisions of the Note, the Agreement, the
Security Agreements, the Mortgages, and the other Loan Documents shall each
continue in full force and effect except as expressly modified hereby, or (ii)
be deemed or construed to be an impairment of the lien of the Security
Agreements or the Mortgages. The Security Agreements and the Mortgages shall
remain first liens encumbering the property covered by the Security Agreements,
the Mortgages, and any other Loan Document.
Survival of Representations and Warranties. All representations and warranties
made in this Amendment or in any other Loan Document including any Loan Document
furnished in connection with this Amendment shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation by
Agent or any closing shall affect the representations and warranties or the
right of Agent to rely upon them.
Reference to Agreement. Each of the Loan Documents, including the Agreement and
any and all other agreements, documents, or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of
the Agreement as amended hereby, are hereby amended so that any reference in
such Loan Documents to the Agreement shall mean a reference to the Agreement as
amended hereby. It is the intention of the parties hereto that this Agreement
and the agreements, documents, and/or instruments executed, delivered, and/or
recorded in connection herewith shall be deemed to form a part of the Loan
Documents that they amend, and shall all constitute a "Loan Document" as
referred to herein and therein.
Additional Documentation. From time to time, Borrower and/or Guarantors shall
execute or procure and deliver to Agent such other and further documents and
instruments evidencing, securing, or pertaining to the indebtedness evidenced by
the Note or the other Loan Documents as shall be reasonably requested by Agent
so as to evidence or effect the terms and provisions hereof, including, without
limitation, evidence that Post-Merger Guarantor has qualified to do business in
Texas, Mississippi, and Louisiana. Agent may file financing statements and other
instruments or documents in the appropriate jurisdictions where it or its
counsels deems necessary, in their sole discretion, to perfect Agent's lien in
the Collateral without obtaining the signature of Borrower or any Guarantor on
any of the financing statements.
Expenses of Agent. As provided in the Agreement, Borrower agrees to pay on
demand all costs and expenses incurred by Agent in connection with the
preparation, negotiation, and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto including, without limitation, the costs and fees of
Agent's legal counsel, and all costs and expenses incurred by Agent in
connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Document including, without
limitation, the costs and fees of Agent's legal counsel.
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Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the
remainder of this Amendment and the effect thereof shall be confined to the
provision so held to be invalid or unenforceable.
Applicable Law. This Amendment and all other Loan Documents executed pursuant
hereto shall be governed by and construed in accordance with the laws of the
State of Texas. On behalf of itself and all of its respective constituents,
Borrower and each Guarantor hereby agree and consent to the exclusive
jurisdiction and venue of the state courts of Texas and the federal courts of
the United States having territorial jurisdiction where the property is located.
Successors and Assigns. This Amendment is binding upon and shall inure to the
benefit of Agent, Borrower, and Guarantor, and their respective successors and
assigns, except Borrower and/or Guarantor may not assign or transfer any of
their rights or obligations hereunder without the prior written consent of
Agent.
Counterparts. This Amendment may be executed in one or more counterparts, each
of which when so executed shall be deemed to be an original, but all of which
when taken together shall constitute one and the same instrument.
Effect of Waiver. No consent or waiver, express or implied, by Agent to or for
any breach of or deviation from any covenant, condition or duty by Borrower or
Guarantor shall be deemed a consent or waiver to or of any other breach of the
same or any other covenant, condition or duty.
Headings. The headings, captions, and arrangements used in this Amendment are
for convenience only and shall not affect the interpretation of this Amendment.
Non-Application of Chapter 346 of Texas Finance Code. The provisions of Chapter
346 of the Texas Finance Code are specifically declared by the parties not to be
applicable to this Amendment or any of the Loan Documents or the transactions
contemplated hereby.
SECTION 26.02 NOTICE. THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY THE
FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
OF THE PARTIES HERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE AGENT OR ANY BANK IN
THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
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[Signature Pages Follow]
8
Executed as of the date first written above.
BORROWER:
CRIMSON EXPLORATION INC.,
a Delaware corporation
By: /s/ E. Xxxxxx Xxxxx
-------------------
E. Xxxxxx Xxxxx
Senior Vice President and
Chief Financial Officer
Address for Notices:
--------------------
Crimson Exploration Inc.
000 X. Xxx Xxxxxxx Xxxxxxx, X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000, ext. 330
Attention: E. Xxxxxx Xxxxx
AGENT:
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:/s/ Xxxx Xxxxxx
----------------
Xxxx Xxxxxx
Vice President
Address for Notices:
--------------------
Xxxxx Fargo Bank, National Association
0000 Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxx
X-0
The undersigned Guarantors are executing this Amendment to acknowledge and agree
to all the representations, warranties, terms, and conditions of the Agreement
as amended by the this Amendment including compliance with all such covenants
and agreements applicable to each such Guarantor. Guarantor hereby consents and
agrees to this Amendment and agrees that its respective guaranty agreement shall
remain in full force and effect and shall continue to be the legal, valid, and
binding obligation of Guarantor enforceable against Guarantor in accordance with
its terms.
GUARANTOR:
CRIMSON EXPLORATION OPERATING, INC., a
Delaware corporation, SUCCESSOR BY MERGER TO:
SETEX OIL AND GAS COMPANY, a Texas
corporation. RIGWEST WELL SERVICE, INC., a
Texas corporation, SOUTHEAST TEXAS OIL &
GAS CO., LLC, a Texas limited liability
company, GULFWEST DEVELOPMENT COMPANY, a
Texas corporation, DUTCHWEST OIL
COMPANY, a Texas corporation, GULFWEST OIL
& GAS COMPANY, a Texas corporation,
GULFWEST OIL & GAS COMPANY (LOUISIANA)
LLC, a Louisiana limited liability
company , GULFWEST TEXAS
COMPANY, a Texas corporation, and S.G.C.
TRANSMISSION, LLC,
a Texas limited liability company
By:/s/ E. Xxxxxx Xxxxx
-------------------
Name: E. Xxxxxx Xxxxx
----------------------------------------
Title: Sr. Vice President and CFO
---------------------------------------
Address for Notices:
--------------------
Crimson Exploration Inc.
000 X. Xxx Xxxxxxx Xxxxxxx, X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000, ext. 330
Attention: E. Xxxxxx Xxxxx
S-2
LTW PIPELINE CO., a Texas corporation
By:/s/ E. Xxxxxx Xxxxx
-------------------
Name: E. Xxxxxx Xxxxx
-----------------------------------------
Title: Sr. Vice President and CFO
----------------------------------------
Address for Notices:
--------------------
Crimson Exploration Inc.
000 X. Xxx Xxxxxxx Xxxxxxx, X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000, ext. 330
Attention: E. Xxxxxx Xxxxx
S-3
Schedule 7.14 - Page 1
Schedule 7.14
BORROWER & SUBSIDIARIES LOCATIONS,
JURISDICTIONS AND TAXPAYER I.D. NUMBERS
A. BORROWER:
Crimson Exploration Inc.
F/K/A: GulfWest Energy Inc.
EIN: 00-0000000
State of Organization: Delaware
Charter No.: 3976143
Charter Date: June 13, 2005
Delaware Taxpayer No.: 3976143
Principal Office: 000 X. Xxx Xxxxxxx Xxxxxxx X.,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Status: Active
B. SUBSIDIARIES (all subsidiaries are 100% owned by Borrower or
jointly by Borrower and its Subsidiaries):
(i) Crimson Exploration Operating, Inc.
EIN: 20-40477664
State of Organization: Delaware
Charter No.: 4089428
Charter Date: January 5, 2006
Delaware Taxpayer No.: 4089428
Principal Office: 000 X. Xxx Xxxxxxx Xxxxxxx X.,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Status: Active
(ii) LTW Pipeline Co.
EIN: 00-0000000
State of Organization: Texas
Charter No.: 1531992
Charter Date: April 19, 1999
Texas Taxpayer No.: 3-20014-7053-6
Principal Office: 000 X. Xxx Xxxxxxx Xxxxxxx X.,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Status: Active
Schedule 7.14 - Page 1
Schedule 7.28
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GUARANTOR'S TAXPAYER IDENTIFICATION NUMBERS
AND STATES OF FORMATION
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GUARANTOR'S NAME TAXPAYER I.D. NO. STATE OF FORMATION
---------------------------------------- -------------------------------------- --------------------------------------
Crimson Exploration Inc. 00-0000000 Delaware
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Crimson Exploration Operating, Inc. 00-0000000 Delaware
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LTW Pipeline Co. 00-0000000 Texas
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Schedule 7.14 - Page 1
