EXHIBIT 10.11.5
FIFTH AMENDMENT TO FIFTH RESTATED CREDIT AGREEMENT
This Fifth Amendment to Fifth Restated Credit Agreement (this "FIFTH
AMENDMENT") is entered into as of the 1st day of November, 1996, by and among
Xxxxxx Oil Corporation ("BORROWER"), NationsBank of Texas, N.A., as Agent
("AGENT"), and NationsBank of Texas, N.A. ("NATIONSBANK"), Bank One, Texas, N.A.
("BANK ONE"), Xxxxx Fargo Bank, N.A. ("XXXXX FARGO"), and Texas Commerce Bank
National Association ("TCB") as Banks (the "BANKS").
W I T N E S E T H:
WHEREAS, the Banks, Borrower and Agent are parties to that certain Fifth
Restated Credit Agreement dated as of June 30, 1994, as amended by that certain
(i) letter agreement by and among Borrower and the Banks dated as of May 1,
1995, (ii) Second Amendment to Fifth Restated Credit Agreement by and among
Borrower, Agent and the Banks dated as of June 30, 1995, (iii) Third Amendment
to Fifth Restated Credit Agreement by and among Borrower, Agent and the Banks
dated as of November 1, 1995, and (iv) Fourth Amendment to Fifth Restated Credit
Agreement by and among Borrower, Agent and the Banks dated as of April 4, 1996
(as amended, the "CREDIT AGREEMENT") (unless otherwise defined herein, all terms
used herein with their initial letter capitalized shall have the meaning given
such terms in the Credit Agreement); and
WHEREAS, pursuant to the Credit Agreement the Banks have made certain
Loans to Borrower, and Agent has issued certain Letters of Credit on behalf of
Borrower; and
WHEREAS, Borrower has requested that (i) the Banks waive their right to
make a Special Determination of the Borrowing Base in connection with any sale
or sales of the Sale Properties (as herein defined), (ii) Section 9.2 of the
Credit Agreement be amended in certain respects, (iii) Section 9.11 of the
Credit Agreement be amended in certain respects, (iv) the amount of the Total
Borrowing Base and the amounts of the Facility A Borrowing Base and the Facility
B Borrowing Base for the period commencing on November 1, 1996 and continuing
until the next succeeding Determination Date be set forth herein, and (v) the
Banks extend the Facility B Termination Date to October 30, 1997; and
WHEREAS, subject to the terms and conditions herein contained, the Banks
have agreed to Borrower's requests.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed,
Borrower, Agent and each Bank hereby agree as follows:
SECTION 1. AMENDMENTS. Subject to the satisfaction of each condition
precedent set forth in SECTION 5 hereof and in reliance on the representations,
warranties, covenants and agreements contained in this Fifth Amendment, the
Credit Agreement shall be amended effective November 1, 1996 (the "EFFECTIVE
DATE") in the manner provided in this SECTION 1.
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1.1. AMENDMENT TO DEFINITIONS. The definition of "Loan Papers"
contained in Section 1.1 of the Credit Agreement shall be amended to read in
full as follows:
"Loan Papers" means this Agreement, the Letter Agreement, the
Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Notes, the Mortgages, the Restricted Subsidiary
Guarantees and all other certificates, documents or instruments
delivered in connection with this Agreement, as the foregoing may be
amended from time to time.
1.2. ADDITIONAL DEFINITIONS. Section 1.1 of the Credit Agreement shall
be amended to add the following definition to such Section:
"Fifth Amendment" means that certain Fifth Amendment to Fifth
Restated Credit Agreement dated as of November 1, 1996, by and among
Borrower, Agent and the Banks.
1.3. RESTRICTED PAYMENTS COVENANT. Section 9.2 of the Credit Agreement
shall be amended to read in full as follows:
SECTION 9.2. RESTRICTED PAYMENTS. Neither Borrower nor any
Restricted Subsidiary will declare or make any Restricted Payment;
provided, that, so long as no Default or Event of Default, Borrowing
Base Deficiency or noncompliance with SECTION 10.4 exists (without
giving effect to the cure periods provided by SECTION 4.4 or 10.4), and
provided further that no Default or Event of Default, Borrowing Base
Deficiency or non compliance with SECTION 10.4 would result from such
Restricted Payment (without giving effect to the cure periods provided
by SECTION 4.4 or 10.4), Borrower and Restricted Subsidiaries may (a)
make Restricted Payments in an aggregate amount (measured cumulatively
from January 1, 1996) not to exceed the sum of the following (i)
$75,000,000, plus (ii) the net cash proceeds to Borrower from all equity
offerings completed by Borrower of Borrower's equity securities after
January 1, 1996, plus (iii) all cash Distributions actually received by
Borrower or any Restricted Subsidiary from Unrestricted Subsidiaries
after January 1, 1996, plus (iv) fifty percent (50%) of Borrower's
Consolidated Cash Flow earned on or after January 1, 1996 to the earlier
of (y) the date of determination, or (z) December 31, 1996, (b) declare
and make a Qualified Redemption of the First Issue, (c) declare and make
a Qualified Redemption of the Second Issue, (d) declare and make a
Qualified Redemption of the Third Convertible Debentures, (e) issue the
First Convertible Debentures in exchange for the First Preferred Stock,
and (f) issue the Second Convertible Debentures in exchange for the
Second Preferred Stock. Notwithstanding the foregoing, the aggregate
amount of Distributions consisting of dividends paid on or with respect
to the Common Stock of Borrower shall not exceed $.30 per weighted
average share outstanding during any period of four (4) consecutive
fiscal quarters. Furthermore, provided, that, no Default or Event of
Default, Borrowing Base Deficiency or noncompliance with SECTION 10.4
has occurred which is continuing (without giving effect to the cure
periods provided by SECTION 4.4 or 10.4), on May 1, 1997, (Y) subsection
(a)(iv) of this SECTION 9.2 shall be automatically amended,
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without the necessity of any further action by Borrower, Agent or any
Bank, to read in full as follows: "(iv) fifty percent (50%) of
Borrower's Consolidated Cash Flow earned on or after January 1, 1996 to
the date of determination," and, (Z) the sentence immediately preceding
this sentence and beginning with the phrase "Notwithstanding the
foregoing" shall automatically be deleted in its entirety without the
necessity of any further action by Borrower, Agent or any Bank.
1.4. HEDGE TRANSACTIONS COVENANT. Section 9.11 of the Credit Agreement
shall be amended to read in full as follows:
SECTION 9.11. HEDGE TRANSACTIONS. Neither Borrower nor any of its
Restricted Subsidiaries shall enter into Hedge Transactions with the
exception that Borrower and its Restricted Subsidiaries may enter into
Hedge Transactions as long as (a) (i) the aggregate notional volume of
oil which is the subject of oil Hedge Transactions in existence at any
time does not exceed seventy-five percent (75%) of Borrower's and its
Restricted Subsidiaries' anticipated production of oil from proved,
developed producing reserves during the entire term of such existing
Hedge Transactions, and (ii) the notional volume of oil with respect to
which a settlement is required on a particular settlement date under
such oil Hedge Transactions shall not exceed (A) ninety percent (90%) of
Borrower's and its Restricted Subsidiaries anticipated production of oil
from proved, developed producing reserves for the period (a "Settlement
Period") from the immediately preceding settlement date under any oil
Hedge Transaction (or the commencement of such Hedge Transaction in the
event there is no prior settlement date) to such settlement date in the
case of any Settlement Period ending on or prior to April 30, 1997, and
(B) seventy five percent (75%) of Borrower's and its Restricted
Subsidiaries' anticipated production of oil from proved, developed
producing reserves for any Settlement Period thereafter, and (b) (i) the
aggregate notional volume of gas which is the subject of gas Hedge
Transactions in existence at any time does not exceed seventy-five
percent (75%) of Borrower's and its Restricted Subsidiaries' anticipated
production of gas from proved, developed producing reserves during the
entire term of such existing Hedge Transactions, and (ii) the notional
volume of gas with respect to which a settlement is required on a
particular settlement date under such gas Hedge Transactions shall not
exceed (A) ninety percent (90%) of Borrower's and its Restricted
Subsidiaries' anticipated production of gas from proved, developed
producing reserves for the Settlement Period ending on such settlement
date in the case of any Settlement Period ending on or prior to April
30, 1997, and (B) seventy five percent (75%) of Borrower's and its
Restricted Subsidiaries' anticipated production of gas from proved,
developed producing reserves for any Settlement Period thereafter.
SECTION 2. SALE OF SALE PROPERTIES. Borrower has advised the Banks that
Borrower intends to sell the Borrower's interest in some or all of the oil and
gas properties described on EXHIBIT I attached hereto (the "SALE PROPERTIES").
Borrower has further advised the Banks that it intends to complete any such sale
or sales of the Sale Properties pursuant to the exception to Section 9.5 of the
Credit Agreement contained in clause (z) of such Section, and Borrower has
requested that the Banks waive their right to make a Special Determination of
the Borrowing Base in connection with any such specific sale. The Banks hereby
(i) agree with Borrower that any sale or sales of the Sale
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Properties (the "APPROVED SALES") will be deemed sales under clause (z) of
Section 9.5 of the Credit Agreement and will not reduce or eliminate exceptions
to Section 9.5 of the Credit Agreement available under any other clause of
Section 9.5, and (ii) waive their right to require a Special Determination of
the Borrowing Base in connection with any such Approved Sales.
The waiver granted by the Banks in this SECTION 2 is expressly limited
as follows: (a) such waiver is limited solely to Section 9.5 of the Credit
Agreement and solely with respect to the Approved Sales, (b) such waiver shall
not be applicable to any provision of any Loan Paper other than Section 9.5 of
the Credit Agreement, and (c) such waiver is a limited, one-time waiver, and
nothing contained herein shall obligate the Banks to grant any additional, or
future waiver of Section 9.5 of the Credit Agreement or any other provision of
any Loan Paper.
SECTION 3. BORROWING BASE. In accordance with Section 4.1 and 4.4 of the
Credit Agreement, effective November 1, 1996, and continuing until the next
Determination Date, the Total Borrowing Base shall be $140,000,000, allocated as
follows: $90,000,000 to the Facility A Borrowing Base, and $50,000,000 to the
Facility B Borrowing Base.
SECTION 4. EXTENSION OF FACILITY B TERMINATION DATE. In accordance with
Section 2.9(b) of the Credit Agreement, Borrower has requested that the Banks
extend the Facility B Termination Date from April 3, 1997 to October 30, 1997.
The Facility B Termination Date is hereby extended from April 3, 1997 to October
30, 1997.
SECTION 5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENTS. The
amendments to the Credit Agreement contained in SECTION 1 of this Fifth
Amendment shall be effective only upon, and are conditioned upon, the delivery
to Agent of such resolutions, certificates and other documents as Agent shall
request relative to the authorization, execution and delivery by Borrower of
this Fifth Amendment. If the foregoing condition has not been satisfied by the
Effective Date, this Fifth Amendment and all obligations of the Banks and Agent
contained herein shall, at the option of Majority Banks, terminate.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF BORROWER. To induce the
Banks and Agent to enter into this Fifth Amendment, Borrower hereby represents
and warrants to Agent as follows:
(a) Each representation and warranty of Borrower contained in the Credit
Agreement and the other Loan Papers is true and correct on the date hereof and
will be true and correct after giving effect to the amendments set forth in
SECTION 1 hereof.
(b) The execution, delivery and performance by Borrower of this Fifth
Amendment are within the Borrower's corporate powers, have been duly authorized
by necessary action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not violate or constitute a default
under any provision of applicable law or any Material Agreement binding upon
Borrower or the Subsidiaries of Borrower or result in the creation or imposition
of any Lien upon any of the assets of Borrower or the Subsidiaries of Borrower
except Permitted Encumbrances.
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(c) This Fifth Amendment constitutes the valid and binding obligation of
Borrower enforceable in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditor's rights generally, and (ii) the availability of equitable
remedies may be limited by equitable principles of general application.
SECTION 7. MISCELLANEOUS.
7.1 NO DEFENSES. Borrower hereby represents and warrants to the Banks
that there are no defenses to payment, counterclaims or rights of set-off with
respect to the Loans existing on the date hereof.
7.2 REAFFIRMATION OF LOAN PAPERS; EXTENSION OF LIENS. Any and all of the
terms and provisions of the Credit Agreement and the Loan Papers shall, except
as amended and modified hereby, remain in full force and effect. Borrower hereby
extends the Liens securing the Obligations until the Obligations have been paid
in full, and agrees that the amendments and modifications herein contained shall
in no manner affect or impair the Obligations or the Liens securing payment and
performance thereof.
7.3 PARTIES IN INTEREST. All of the terms and provisions of this Fifth
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
7.4 LEGAL EXPENSES. Borrower hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Agent incurred by Agent, in
connection with the preparation, negotiation and execution of this Fifth
Amendment and all related documents.
7.5 COUNTERPARTS. This Fifth Amendment may be executed in counterparts,
and all parties need not execute the same counterpart; however, no party shall
be bound by this Fifth Amendment until all parties have executed a counterpart.
Facsimiles shall be effective as originals.
7.6 COMPLETE AGREEMENT. THIS FIFTH AMENDMENT, THE CREDIT AGREEMENT
AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
7.7 HEADINGS. The headings, captions and arrangements used in this Fifth
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Fifth Amendment, nor affect
the meaning thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be duly executed by their respective authorized officers on the date and year
first above written.
BORROWER:
XXXXXX OIL CORPORATION,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxxxx
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Its:Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A.
By:/s/Xxxxx Xxxxxx
------------------
Its:Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:/s/Xxxxx Xxxxxx
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Its:Vice President
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:/s/Xxx Xxxxx
-------------------------
Its:Senior Vice President
BANK ONE, TEXAS, N.A.
By:/s/Xxxx Xxxxxx
-----------------
Its:Vice President
XXXXX FARGO BANK, N.A.
By:/s/Xxxx Xxxxxxx
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Its:Vice President
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