EXHIBIT 10.11.7
SEVENTH AMENDMENT TO FIFTH RESTATED CREDIT AGREEMENT
This Seventh Amendment to Fifth Restated Credit Agreement (this
"Seventh Amendment") is entered into as of the 13th day of October, 1997, 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"), Texas Commerce Bank
National Association ("TCB," and together with NationsBank, Bank One and Xxxxx
Fargo, collectively referred to herein as the "Original Banks") and Credit
Lyonnais New York Branch, 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 Original Banks dated
as of May 1, 1995, (ii) Second Amendment to Fifth Restated Credit Agreement by
and among Borrower, Agent and the Original Banks dated as of June 30, 1995,
(iii) Third Amendment to Fifth Restated Credit Agreement by and among Borrower,
Agent and the Original Banks dated as of November 1, 1995, (iv) Fourth Amendment
to Fifth Restated Credit Agreement by and among Borrower, Agent and Original
Banks dated as of April 4, 1996, (v) Fifth Amendment to Fifth Restated Credit
Agreement by and among Borrower, Agent and the Original Banks dated as of
November 1, 1996, and (vi) Sixth Amendment to Fifth Restated Credit Agreement by
and among Borrower, Agent and Banks dated as of May 19, 1997 (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 advised the Banks that Borrower intends, pursuant
to a series of transactions, to sell all of the 14,000,000 shares of common
stock of Patina Oil & Gas Corporation, a Delaware corporation, held by Borrower
(the "Patina Stock Sale"); and
WHEREAS, Borrower has requested that (i) the Credit Agreement be
amended in certain respects in connection with the Patina Stock Sale, and (ii)
the November 1, 1997 Determination Date be postponed until December 1, 1997; and
WHEREAS, subject to the terms and conditions herein contained, the
Banks have agreed to Borrower's request.
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:
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SECTION 1. Amendments. Subject to the satisfaction of each condition
precedent set forth in Section 4 hereof and in reliance on the representations,
warranties, covenants and agreements contained in this Seventh Amendment, the
Credit Agreement shall be amended effective upon the consummation of the sale of
at least 10,000,000 shares of common stock of Patina Oil & Gas Corporation held
by Borrower as provided in Section 2 hereof (the "Effective Date") in the manner
provided in this Section 1.
1.1. Amendment to Definition. 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 Sixth Amendment, the Seventh 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:
"Seventh Amendment" means that certain Seventh Amendment to
Fifth Restated Credit Agreement dated as of October 13, 1997, 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 non-compliance 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) the net cash proceeds to
Borrower from the sale or other disposition of Borrower's Investment in
any Unrestricted Subsidiary after January 1, 1996, plus (v) fifty
percent (50%) of Borrower's Consolidated Cash Flow
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earned on or after January 1, 1996 to the date of determination, (b)
declare and make a Qualified Redemption of the Second Issue, (c) issue
the Second Convertible Debentures in exchange for the Second Preferred
Stock, and (d) redeem the Third Convertible Debentures with the
proceeds of the issuance of the Fourth Debentures.
SECTION 2. Amendments Effective Upon Consummation of Sale of Stock.
Subject to the satisfaction of each condition precedent set forth in Section 4
hereof, upon the consummation of the sale of at least 10,000,000 shares of
common stock of Patina Oil & Gas Corporation held by Borrower, and provided that
such sale or series of sales is consummated on or before November 1, 1997, the
Credit Agreement shall be automatically amended without the necessity of any
further act by Borrower, Agent or any Bank to (a) delete the following
definitions (the "Patina Defined Terms") from Section 1.1 of the Credit
Agreement: "Patina," "Patina Ancillary Agreements" and "Patina Transaction
Documents," and (b) delete each reference in the Credit Agreement and the other
Loan Papers to each Patina Defined Term, such that, from and after the
consummation of the sale of at least 10,000,000 shares of common stock of Patina
Oil & Gas Corporation held by Borrower, each provision of the Credit Agreement
shall be read and interpreted without giving effect to the Patina Defined Terms.
SECTION 3. Determination of Borrowing Base. Agent and Banks hereby
waive the Periodic Determination of the Total Borrowing Base scheduled to occur
on November 1, 1997, and Borrower, Agent and Banks agree that, subject to
Required Banks' rights under Section 4.3 of the Credit Agreement to make a
Special Determination of the Total Borrowing Base at any time prior to December
1, 1997, the Total Borrowing Base shall be redetermined in accordance with
Article IV of the Credit Agreement on or about December 1, 1997. Borrower, Agent
and Banks further agree that (a) such Determination on or about December 1, 1997
shall not be deemed a Special Determination, and accordingly, shall not reduce
the number of Special Determinations Required Banks are permitted under Section
4.3 of the Credit Agreement, and (b) after December 1, 1997, the dates for
Periodic Determinations shall continue to be each May 1 and November 1,
commencing May 1, 1998.
SECTION 4. Conditions Precedent to Effectiveness of Amendments. The
amendments to the Credit Agreement contained in Section 1 and Section 2 of this
Seventh Amendment shall be effective only upon, and are conditioned upon, the
delivery to Agent and each Bank of such resolutions, certificates and other
documents as Agent or any Bank shall request relative to the Patina Stock Sale
and the authorization, execution and delivery by Borrower of this Seventh
Amendment (and, in the case of the amendments set forth in Section 2, the
further condition that the sale of at least 10,000,000 shares of common stock of
Patina Oil & Gas Corporation held by Borrower shall have been consummated on or
before November 1, 1997). If the foregoing conditions have not been satisfied by
the Effective Date, this Seventh Amendment and all obligations of the Banks and
Agent contained herein shall, at the option of Majority Banks, terminate.
SECTION 5. Representations and Warranties of Borrower. To induce the
Banks and Agent to enter into this Seventh Amendment, Borrower hereby represents
and warrants to Agent as follows:
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5.1 Each representation and warranty of Borrower and each Restricted
Subsidiary 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 and Section 2 hereof.
5.2 The execution, delivery and performance by Borrower of this Seventh
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.
5.3 This Seventh 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 6. Miscellaneous.
6.1 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.
6.2 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.
6.3 Parties in Interest. All of the terms and provisions of this
Seventh Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
6.4 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 Seventh
Amendment and all related documents.
6.5 Counterparts. This Seventh Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this Seventh Amendment until all parties have executed a
counterpart. Facsimiles shall be effective as originals.
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6.6 Complete Agreement. THIS SEVENTH 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.
6.7 Headings. The headings, captions and arrangements used in this
Seventh Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this Seventh
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
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
Name:Xxxxx X. Xxxxxxxx
Title:Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A.
By: /s/ J. Xxxxx Xxxxxx
J. Xxxxx Xxxxxx,
Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:/s/ J. Xxxxx Xxxxxx
J. Xxxxx Xxxxxx,
Vice President
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TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:/s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title:
BANK ONE, TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
Name:Xxxxxxx X. Xxxxxx
Title:Senior Vice President
XXXXX FARGO BANK, N.A.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/Pascal Poupelle
Name:Pascal Poupelle
Title:Executive Vice President
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