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EXHIBIT 10.28
FIRST AMENDMENT
TO
REDUCING REVOLVING CREDIT AGREEMENT
This First Amendment ("First Amendment") to Reducing Revolving Credit
Agreement ("Credit Agreement") dated as of March 30, 2000, originally by and
among ENERGY PARTNERS, LTD., a Delaware corporation, as Borrower, the several
banks and financial institutions from time to time parties thereto as Banks, and
BANK ONE, TEXAS, N.A., a national banking association, as the initial Bank, as
the LC Issuer and as Agent for the Banks, is entered into this 10th day of
August 2000.
WITNESSETH:
WHEREAS, pursuant to Section 9.05 of the Credit Agreement, certain
Purchasing Banks have purchased portions of Bank One, Texas, N.A.'s ("Bank One")
Commitment under the Credit Agreement, subject to, and conditioned upon, the
matters set forth in this First Amendment; and
WHEREAS, Borrower, Bank One as a Bank, as the LC Issuer and as Agent,
and each of the Purchasing Banks desire to amend the Credit Agreement as set
forth herein; and
WHEREAS, subsequent to the execution of the Commitment Transfer
Supplement pursuant to which it agreed to become a Purchasing Bank, the Bank
formerly known as Chase Bank of Texas, N.A. changed its name to The Chase
Manhattan Bank.
NOW, THEREFORE, in consideration of the premises and for Ten Dollars
($10.00) and other good and valuable consideration received by each party
hereto, and each intending to be legally bound hereby, the parties agree as
follows:
I. Amendments to Credit Agreement.
Article I, DEFINITIONS, of the Credit Agreement is hereby amended by
replacing the following defined term in its entirety to read as follows:
"Permitted Hedge Agreement" means any Hedge Agreement which Borrower
enters into with or through a counterparty that has a credit rating of
at least "A-" by Standard and Poors or "A(3)" by Xxxxx'x Investment
Service, together with the confirmations which Borrower may hereafter
enter into with or through such counterparty covering, in the
aggregate, among all such Hedge Agreements, not more than seventy
percent (70%) of the Proved Reserves that are (i) attributable to
Borrower's interest in the Borrowing Base Oil and Gas Properties and
(ii) projected to be produced during the term(s) of such Hedge
Agreement(s).
Article I, DEFINITIONS, of the Credit Agreement is hereby further
amended by adding thereto the following defined terms:
"Documentation Agent" means BNP Paribas, and each successor to such
agent position.
"Syndication Agent" means The Chase Manhattan Bank, and each successor
to such agent position.
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Article I, DEFINITIONS, to the Credit Agreement is hereby further
amended by deleting therefrom the definition of "Agent," and by replacing that
deleted definition with the following definition:
"Administrative Agent" means Bank One, Texas, NA, as agent for the
Banks hereunder and under the other Loan Documents, and each successor
agent.
Section 2.04, Payment of Interest under the Notes, is hereby amended by
revising clause (A)(2) thereof in its entirety to read as follows:
(2) Interest accruing on any LIBOR Loan during any Interest Period
shall be payable on the first Business Day of the next Interest Period
except that: (a) with respect to LIBOR Loans for which Borrower has
selected an Interest Period of six (6) months, interest will be payable
on the first Business Day following the ninetieth (90th) day after the
commencement of such Interest Period and on the first Business Day of
the next Interest Period, (b) interest will be payable on the Facility
Termination Date on any LIBOR Loan with an Interest Period ending on
the Facility Termination Date; and provided that (c) all accrued
interest on any LIBOR Loan converted or prepaid pursuant to Section
2.11 shall be paid immediately upon such prepayment or conversion.
Section 7.01, Enumeration of Events of Default, is hereby amended by
revising paragraph (e) thereof in its entirety to read as follows:
Default shall be made by the Borrower (as principal or other surety) in
payment or performance of any bond, debenture, note or other evidence
of Indebtedness for borrowed money, or under any credit agreement, loan
agreement, indenture, promissory note or similar agreement or
instrument executed in connection with any of the forgoing, relating to
any Indebtedness in an aggregate amount of One Hundred Thousand Dollars
($100,000.00) or more, and such default shall remain unremedied for in
excess of the period of grace, of any, with respect thereto.
ARTICLE VIII, THE AGENT, is hereby amended by adding the following new
Section 8.08 thereto:
8.08 Amendment to Agent Provisions pursuant to First
Amendment. In connection with the substitution pursuant to the First
Amendment of the term "Administrative Agent" in place of the term
"Agent" in the DEFINITIONS, effective from and after the date of the
First Amendment the term "Administrative Agent" shall be deemed
substituted for the term "Agent" at every other place throughout Credit
Agreement where the term "Agent" appears. No amendment shall be
required to be made to any of the Security Instruments heretofore or
hereafter entered into by Borrower pursuant to the Credit Agreement, to
the extent they are granted to or for the benefit of Bank One, Texas,
N.A. (or any successor Administrative Agent), as "Agent," and future
Security Instruments required to be delivered by Borrower hereunder
shall be granted to or for the benefit of Bank One, Texas, N.A. (or any
successor Administrative Agent), as "Agent."
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Schedule 1.01(b), Commitment Amounts and Aggregate Commitment Amount,
attached to the Credit Agreement is hereby replaced and superseded by Schedule
1.01(b) attached to the First Amendment.
Schedule 2.06, Borrowing Base and Monthly Borrowing Base Reduction,
attached to the Credit Agreement is hereby replaced and superseded by Schedule
2.06 attached to the First Amendment.
III. Conditions Precedent in Connection with the First Amendment. The
First Amendment shall not be binding on the Banks until satisfaction of the
following conditions precedent:
A. Administrative Agent shall have received fully executed
counterparts, in the number of multiple originals requested by
Administrative Agent, of the First Amendment, the Commitment Transfer
Supplement and the replacement Notes referred to in Schedule III of the
Commitment Transfer Supplement, all duly executed by an authorized
officer for Borrower.
B. The representations and warranties contained in Article IV
of the Credit Agreement shall be true and correct in all material
respects on the date of the First Amendment with the same effect as
though such representations and warranties had been made on such date;
and no Event of Default shall have occurred and be continuing or will
have occurred upon the execution of the First Amendment.
C. All legal matters incident to the consummation of the
transactions contemplated by the First Amendment shall be satisfactory
to the firm of Xxxxxx & Xxxxxx, L.L.P., special counsel for Bank.
D. All reasonable and documented legal fees owed by Bank to
Xxxxxx & Xxxxxx, L.L.P. in connection with the First Amendment shall
have been paid by Borrower.
IV. Reaffirmation of Representations and Warranties. To induce the
Banks to enter into this First Amendment, the Borrower hereby reaffirms, as of
the date hereof, its representations and warranties contained in Article IV of
the Credit Agreement and in all other documents executed pursuant thereto,
except as provided in paragraph IV.A., below, and additionally represents and
warrants as follows:
A. The execution and delivery of this First Amendment and the
performance by the Borrower of its obligations under this First
Amendment are within the Borrower's power, have been duly authorized by
all necessary corporate action, have received all necessary
governmental approval (if any shall be required), and do not and will
not contravene or conflict with any provision of law or of the charter
or by-laws of the Borrower or of any agreement binding upon the
Borrower, except with respect to non-compliance with the contractual
provisions described on Exhibit "A" to this First Amendment, which are
in the process of being rectified.
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B. The Credit Agreement as amended by this First Amendment
represents the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective
terms subject as to enforcement only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
C. No Event of Default or Unmatured Event of Default has
occurred and is continuing as of the date hereof.
V. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Credit Agreement shall have the same meanings herein.
VI. Reaffirmation of Credit Agreement. This First Amendment shall be
deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as
further amended hereby, is hereby ratified, approved and confirmed in each and
every respect. All references to the Credit Agreement herein and in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby.
VII. Entire Agreement. The Credit Agreement, as hereby amended,
embodies the entire agreement between the Borrower and the Banks and supersedes
all prior proposals, agreements and understandings relating to the subject
matter hereof. The Borrower certifies that it is relying on no representation,
warranty, covenant or agreement except for those set forth in the Credit
Agreement, as hereby amended, and in the other documents previously executed or
executed of even date herewith.
VIII. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. This First Amendment has been entered into
in Xxxxxx County, Texas, and it shall be performable for all purposes in Xxxxxx
County, Texas. Courts within the State of Texas shall have jurisdiction over any
and all disputes between the Borrower and the Bank, whether in law or equity,
including, but not limited to, any and all disputes arising out of or relating
to this First Amendment or any other Security Instrument; and venue in any such
dispute whether in federal or state court shall be laid in Xxxxxx County, Texas.
IX. Severability. Whenever possible each provision of this First
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this First Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this First Amendment.
X. Execution in Counterparts. This First Amendment may be executed in
any number of counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same agreement.
XI. Section Captions. Section captions used in this First Amendment are
for convenience of reference only, and shall not affect the construction of this
First Amendment.
XII. Successors and Assigns. This First Amendment shall be binding upon
the Borrower and the Banks and their respective successors and assigns, and
shall inure to the benefit of the Borrower and the Banks, and the respective
successors and assigns of the Banks.
XIII. Non-Application of Chapter 346 of Texas Finance Codes. In no
event shall Chapter 346 of the Texas Finance Code (which regulates certain
revolving loan accounts and revolving
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tri-party accounts) apply to this Credit Agreement as hereby further amended or
any other Loan Documents or the transactions contemplated hereby.
XIV. NOTICE. THIS FIRST AMENDMENT TOGETHER WITH THE LOAN AGREEMENT, AND
THE OTHER SECURITY INSTRUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the day and year first above written.
BORROWER:
ENERGY PARTNERS, LTD.
By: /s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Vice President, Chief Financial Officer
ADMINISTRATIVE AGENT, LC ISSUER AND
BANK:
BANK ONE, TEXAS, N.A.
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Vice President
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SYNDICATION AGENT AND BANK:
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX X. XXXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxxx
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Title: Managing Director
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DOCUMENTATION AGENT AND BANK:
BNP PARIBAS
By: /s/ XXXXX X. XXXXXX AND /s/ XXXXX XXXXXX
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Name: Xxxxx X. Xxxxxx and Xxxxx Xxxxxx
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Title: Director and Vice President
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BANK:
WHITNEY NATIONAL BANK
By: /s/ XXXXX ALIS KITCHEN
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Name: Xxxxx Alis Kitchen
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Title: Assistant Vice President
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