THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.2
[EXECUTION]
THIRD
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) made as
of April 24, 2009 by and among XXXXX PETROLEUM COMPANY, a Delaware corporation
(“Borrower”),
XXXXX FARGO BANK, NATIONAL ASSOCIATION, individually and as administrative agent
(“Administrative
Agent”), and the Lenders party to the Original Credit Agreement defined
below (“Lenders”).
W I T N E
S S E T H:
WHEREAS,
Borrower, Administrative Agent and Lenders entered into that certain Amended and
Restated Credit Agreement dated as of July 15, 2008 (as amended, supplemented,
or restated to the date hereof, the “Original Credit
Agreement”), for the purpose and consideration therein expressed, whereby
Lenders became obligated to make loans to Borrower as therein provided;
and
WHEREAS,
Borrower, Administrative Agent and Lenders desire to amend the Original Credit
Agreement as set forth herein;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and in the Original Credit Agreement, in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as
follows:
ARTICLE
I.
DEFINITIONS AND
REFERENCES
§
1.1. Terms Defined in the
Original Credit Agreement. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the
Original Credit Agreement shall have the same meanings whenever used in this
Amendment.
§
1.2. Other Defined
Terms. Unless the context otherwise requires, the following
terms when used in this Amendment shall have the meanings assigned to them in
this Section 1.2.
“Amendment” means this
Third Amendment to Amended and Restated Credit Agreement.
“Credit Agreement”
means the Original Credit Agreement as amended hereby.
“Original Omnibus
Certificate” means the Omnibus Certificate dated July 15, 2008 executed
and delivered by officers of Borrower pursuant to the Original Credit
Agreement.
[Third
Amendment to Credit Agreement]
ARTICLE
II.
AGREEMENTS
§
2.1. Definitions.
(a)
The following definitions in Section 1.1 of the Original
Credit Agreement are hereby amended in their entirety to read as
follows:
“Availability” means
on any day during the Commitment Period, an amount equal to the lesser of the
Aggregate Commitment or the Borrowing Base, determined for such day by deducting
from such lesser amount at the end of such day, the Facility Usage.
“Secured Obligations”
means all Obligations and all Lender Hedging Obligations; provided that after
the end of the Suspension Period, SG Obligations will be included in the Secured
Obligations.
(b)
The following new definitions are hereby added to Section 1.1
of the Original Credit Agreement in alphabetical order to read as
follows:
“Discharge of Second Lien
Obligations” has the meaning given to such term in the Second Lien
Intercreditor Agreement.
“Second Lien Intercreditor
Agreement” means that certain Intercreditor Agreement dated as of April
24, 2009 among Administrative Agent, Xxxxx Fargo Energy Capital, Inc., as
administrative agent for the Term Lenders (as defined therein), and
Borrower, as from time to time supplemented, amended or restated.”
“SG Obligations” means
the Indebtedness arising under the SG Money Market Facility in an aggregate
principal amount not to exceed $30,000,000, plus all interest accrued thereon
and all fees, expenses and other Liabilities payable with respect thereto;
provided that no loans or advances shall be made by SG under the SG Money Market
Facility during the Suspension Period.
“Suspension Period”
means the period from and including April 24, 2009 until the date on which the
Discharge of Second Lien Obligations has occurred.
(c)
The definition of “Impacted Lender” in Section 1.1 of the Original
Credit Agreement is hereby amended to replace the reference to “the LC Issuer”
in clause (b)(i) thereof with “Administrative Agent”.
§
2.2. Indebtedness. Subsection
(f) of Section 7.1 of the Original Credit Agreement is hereby amended in its
entirety to read as follows:
“(f) only
after the end of the Suspension Period, SG Obligations;”
[Third
Amendment to Credit Agreement]
2
§
2.3. Asset
Sales. Subsection (i) of Section 7.5 of the Original Credit
Agreement is hereby amended in its entirety to read as follows:
(i)
sales and dispositions of other property for a
purchase price paid in cash or Mineral Interests in an amount at least equal to
the fair market value thereof; provided that if the aggregate sales price for
all such property sold during any period between any two sequential
Determination Dates exceeds five percent (5%) of the Present Value of the
Borrowing Base Properties, the Borrowing Base shall be reduced effective
immediately upon such sale or disposition by an amount equal to the value, if
any, assigned to such property in the most recently delivered Engineering
Report.
§
2.4. Lenders
Schedule. Schedule 1 to the Credit Agreement is hereby
replaced with Exhibit A attached hereto.
§
2.5. Borrowing
Base. Pursuant to Section 2.9(a) of the Credit Agreement,
Administrative Agent and Lenders hereby notify Borrower that from the date
hereof until and including the next Determination Date the Borrowing Base shall
be $1,008,000,000, and by its execution hereof, Borrower accepts the foregoing
Borrowing Base.
§
2.6. Reallocation.
(a) Lenders
hereby authorize Administrative Agent and Borrower to request Revolving Loans
from the Lenders, to make prepayments of Revolving Loans and to reallocate
Commitments under the Credit Agreement among Lenders in order to ensure that,
upon the effectiveness of this Agreement, the Revolving Loans of the Lenders
shall be outstanding on a ratable basis in accordance with their respective
Percentage Shares and that the Commitments shall be as set forth on Schedule 1
of the Credit Agreement, as replaced hereby, and no such borrowing, prepayment
or reallocation shall violate any provisions of the Credit
Agreement. Lenders hereby confirm that, from and after the
effectiveness of this Agreement, all participations of Lenders in respect of
Letters of Credit outstanding under the Credit Agreement pursuant to Section
2.13 of the Credit Agreement shall be based upon the Percentage Shares of
Lenders (after giving effect to this Agreement).
(b)
Lenders hereby waive any requirements for minimum amounts of
prepayments of Revolving Loans and ratable payments on account of the principal
or interest of any Revolving Loan under the Credit Agreement to the extent such
prepayment or payments are required pursuant to the Credit
Agreement. Borrower shall pay any funding indemnification amounts
required by Section 3.4 of the Credit Agreement in the event the payment of any
principal of any Eurodollar Loan or the conversion of any Eurodollar Loan other
than on the last day of an Interest Period applicable thereto is required in
connection with the reallocation contemplated by this Section 2.5.
§2.6
Second Lien
Intercreditor Agreement. A new Section 9.14 is hereby added to
the Original Credit Agreement immediately after Section 9.13 thereof to read as
follows:
“Section
9.14. Second Lien Intercreditor
Agreement. Each Lender hereby irrevocably authorizes
Administrative Agent to execute and, by such execution, to bind such Lender to
the terms of the Second Lien Intercreditor Agreement and to take all actions
(and execute all documents) required (or deemed advisable) by the Administrative
Agent in accordance with the terms of the Second Lien Intercreditor Agreement,
and each of the Lenders agrees to be bound by the terms of the Second Lien
Intercreditor Agreement as fully as if a signatory thereto.”
[Third
Amendment to Credit Agreement]
3
§2.7.
SG
Obligations. SG hereby agrees that during the Suspension
Period, (i) it will not make any loans or advances under the SG Money Market
Facility, (ii) the SG Obligations will not be part of the Secured Obligations,
(iii) no SG obligations will be secured by the Collateral and (iv) SG will not
be entitled to any proceeds of the Collateral. Pursuant to Section
10.1(a) of the Original Credit Agreement, SG expressly consents to the terms of
this Amendment and the Second Lien Intercreditor Agreement and authorizes
Administrative Agent to enter into the Second Lien Intercreditor
Agreement.
ARTICLE
III.
CONDITIONS OF
EFFECTIVENESS
§3.1 Effective
Date. This Amendment shall become effective as of the date
first above written when and only when:
(a)
Administrative Agent shall have received all of the following, at Administrative
Agent’s office, duly executed and delivered and in form and substance
satisfactory to Administrative Agent, all of the following:
(i)
this
Amendment;
(ii)
a certificate of the
Secretary of Borrower dated the date of this Amendment certifying: (i) that
resolutions attached thereto previously adopted by the Board of Directors of the
Borrower authorize the execution, delivery and performance of this Amendment by
Borrower; (ii) the names and true signatures of the officers of the Borrower
authorized to execute and deliver Loan Documents; (iii) that the certificate of
incorporation and bylaws of Borrower are in effect on the date hereof and no
modifications have been made to them; and (iv) that all of the representations
and warranties set forth in Article IV hereof are true and correct on and as of
the date hereof, except to the extent that such representation or warranty was
made as of a specific date or updated, modified or supplemented as of a
subsequent date with the consent of Required Lenders and Administrative Agent,
in which cases such representations and warranties shall have been true and
correct in all material respects on and of such earlier date;
(iii) the
certificate of a Responsible Officer of Borrower required to be delivered
pursuant to clause (h) of the definition of Permitted Second Lien Debt, which
certificate relates to the Indebtedness of Borrower arising under that certain
Second Lien Credit Agreement dated of even date herewith among Borrower, Xxxxx
Fargo Energy Capital, Inc., as administrative agent, and the other lenders party
thereto;
(iv) the
Second Lien Intercreditor Agreement;
[Third
Amendment to Credit Agreement]
4
(v)
evidence satisfactory to
Administrative Agent that no SG Obligations remain outstanding; and
(vi) such
other supporting documents as Administrative Agent may reasonably
request.
(b)
Borrower shall have
paid, in connection with such Loan Documents, all other fees and reimbursements
to be paid to Administrative Agent pursuant to any Loan Documents, or otherwise
due Administrative Agent and including fees and disbursements of Administrative
Agent’s attorneys.
ARTICLE
IV.
REPRESENTATIONS AND
WARRANTIES
§4.1 Representations and
Warranties of Borrower. In order to induce each Lender to
enter into this Amendment, Borrower represents and warrants to each Lender
that:
(a)
The representations and warranties contained in Article
V of the Original Credit Agreement are true and correct on and as of the date
hereof, except to the extent that such representation or warranty was made as of
a specific date or updated, modified or supplemented as of a subsequent date
with the consent of Required Lenders and Administrative Agent, in which cases
such representations and warranties shall have been true and correct in all
material respects on and of such earlier date.
(b)
Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies and to
perform its obligations under the Credit Agreement. Borrower has duly taken all
corporate action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of the obligations of Borrower
hereunder.
(c)
The execution and delivery by Borrower of this Amendment, the performance
by Borrower of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not (a) conflict with (i) any
Law, (ii) the articles of incorporation and bylaws of Borrower, or (iii) any
agreement, judgment, license, order or permit applicable to or binding upon
Borrower in any material respect, or (b) result in the creation of any Lien upon
any assets or properties of Borrower. Except for those which have
been obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrower of this Amendment or to consummate the
transactions contemplated hereby.
(d)
When duly executed and delivered, each of this Amendment and the Credit
Agreement will be a legal and binding obligation of Borrower, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors’
rights and by equitable principles of general application.
(e)
The audited annual Consolidated financial statements of Borrower dated as of
December 31, 2008 fairly present the Consolidated financial position at such
date and the Consolidated statement of operations and the changes in
Consolidated financial position for the periods ending on such date for
Borrower. Copies of such financial statements have heretofore been
delivered to each Lender. Since such date no material adverse change
has occurred in the financial condition or businesses or in the Consolidated
financial condition or businesses of Borrower.
[Third
Amendment to Credit Agreement]
5
ARTICLE
V.
MISCELLANEOUS
§5.1 Ratification of
Agreements. The Original Credit Agreement as hereby amended is
hereby ratified and confirmed in all respects. The Loan Documents, as
they may be amended or affected by this Amendment, are hereby ratified and
confirmed in all respects. Any reference to the Credit Agreement in any Loan
Document shall be deemed to be a reference to the Original Credit Agreement as
hereby amended. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Lenders under the Credit Agreement, the Notes, or
any other Loan Document nor constitute a waiver of any provision of the Credit
Agreement, the Notes or any other Loan Document.
§5.2 Survival of
Agreements. All representations, warranties, covenants and
agreements of Borrower herein shall survive the execution and delivery of this
Amendment and the performance hereof, including without limitation the making or
granting of the Loans, and shall further survive until all of the Obligations
are paid in full. All statements and agreements contained in any
certificate or instrument delivered by Borrower hereunder or under the Credit
Agreement to any Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under this Amendment
and under the Credit Agreement.
§5.3 Loan
Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.
§5.4 Governing
Law. This Amendment shall be governed by and construed in
accordance with and governed by the laws of the State of California and the laws
of the United States of America without regard to principles of conflicts of
law.
§5.5 Counterparts;
Fax. This Amendment may be separately executed in counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be validly executed by facsimile or
other electronic transmission.
THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS 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 OF THE PARTIES.
[The remainder of this page has been
intentionally left blank.]
[Third
Amendment to Credit Agreement]
6
IN
WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
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XXXXX
PETROLEUM COMPANY
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By:
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/s/ Xxxxx X. Xxxx | |
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Name:
Xxxxx X. Xxxx
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Title:
Executive Vice President and Chief Financial
Officer
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[Third
Amendment to Credit Agreement]
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION, Administrative Agent, LC Issuer and
Lender
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By:
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/s/ Xxxx Xxxxx | |
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Xxxx
Xxxxx
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Vice
President
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[Third
Amendment to Credit Agreement]
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BNP
PARIBAS, Lender
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By:
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/s/ Xxxxx Xxxxxx | |
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Name:
Xxxxx Xxxxxx
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Title:
Director
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By:
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/s/ Xxxx Xxxxxxxx | |
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Name:
Xxxx Xxxxxxxx
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Title:
Director
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[Third
Amendment to Credit Agreement]
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SOCIÉTÉ
GÉNÉRALE, Lender under the Credit Agreement and the SG Money Market
Facility
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Managing Director
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[Third
Amendment to Credit Agreement]
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JPMORGAN
CHASE BANK, N.A., Lender
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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THE
ROYAL BANK OF SCOTLAND plc, Lender
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By:
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/s/ Xxxx Xxxxxx | |
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Name:
Xxxx Xxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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THE
BANK OF NOVA SCOTIA, Lender
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By:
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/s/ Xxxxxx Xxxxxx | |
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Name:
Xxxxxx Xxxxxx
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Title:
Director
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[Third
Amendment to Credit Agreement]
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WACHOVIA
BANK, N.A., Lender
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By:
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/s/ Xxxx Xxxxxxxxx | |
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Name:
Xxxx Xxxxxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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UNION
BANK, N.A. (formerly known as Union Bank of California, N.A.),
Lender
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By:
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/s/ Xxxxxxx Xxxxxxx | |
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Name:
Xxxxxxx Xxxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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COMPASS
BANK, Lender
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By:
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/s/ Xxxx Xxxxxxxxx | |
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Name:
Xxxx Xxxxxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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U.S.
BANK NATIONAL ASSOCIATION, Lender
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By:
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/s/ Xxxxxx X. Xxxxxxxxx | |
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Name:
Xxxxxx X. Xxxxxxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, Lender
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By:
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/s/ Xxxxx Xxxxx | |
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Name:
Xxxxx Xxxxx
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Title:
Vice President
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By:
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/s/ Xxxxxxx Xxxxx | |
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Name:
Xxxxxxx Xxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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BANK
OF SCOTLAND plc, Lender
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By:
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/s/ Xxxxx X. Xxxxxxxx | |
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Assistant Vice President
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[Third
Amendment to Credit Agreement]
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NATIXIS,
Lender
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By:
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/s/ LouisP. Laville, III | |
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Name:
Xxxxx X. Xxxxxxx, III
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Title:
Managing Director
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By:
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/s/ Liana Tchernysheva | |
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Name:
Liana Tchernysheva
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Title:
Director
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[Third
Amendment to Credit Agreement]
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BANK
OF OKLAHOMA N.A., Lender
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By:
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/s/ Xxxxxxx X. Xxxxx | |
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Name:
Xxxxxxx X. Xxxxx
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Title:
Senior Vice President
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[Third
Amendment to Credit Agreement]
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XXXXXXX
XXXXX BANK, FSB, Lender
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By:
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/s/ Xxxxxxx XxXxxxxx | |
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Name:
Xxxxxxx XxXxxxxx
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Title:
Senior Vice President
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[Third
Amendment to Credit Agreement]
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GUARANTY
BANK AND TRUST COMPANY, Lender
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By:
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/s/ Xxxx X. Xxxxxxxxx | |
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Name:
Xxxx X. Xxxxxxxxx
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Title:
Senior Vice President
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[Third
Amendment to Credit Agreement]
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CITIBANK,
N.A., Lender
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By:
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/s/ Xxxx Xxxxx | |
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Name:
Xxxx Xxxxx
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Title:
Vice President
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[Third
Amendment to Credit Agreement]
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BANK
OF MONTREAL, Lender
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By:
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/s/ Xxxxxx Xxxxxxxx | |
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Name:
Xxxxxx Xxxxxxxx
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Title:
Director
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[Third
Amendment to Credit Agreement]
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CALYON
NEW YORK BRANCH, Lender
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By:
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/s/ Xxxxxxx Xxxxxxx | |
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Name:
Xxxxxxx Xxxxxxx
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Title:
Managing Director
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By:
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/s/ Xxxxxxx Xxxxx | |
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Name:
Xxxxxxx Xxxxx
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Title:
Director
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[Third
Amendment to Credit Agreement]
