THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.4
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amendment to Amended and Restated Credit Agreement (this “Third Amendment”) dated
as of, and effective on and as of, December 30, 2005 (the “Amendment Effective Date”) upon
satisfaction of the conditions set forth in Section 6 hereof, is among Xxxxxxxx Resources, Inc., a
Nevada corporation (“Borrower”), the financial institutions party hereto, and Bank of Montreal, as
administrative agent and as letter of credit issuing bank.
PRELIMINARY STATEMENT
A. The Borrower has entered into a certain Amended and Restated Credit Agreement dated as of
February 25, 2004, among Borrower, the lenders party thereto, Bank of Montreal, as administrative
agent (in such capacity, the “Administrative Agent”) and as issuing bank (in such capacity, the
“Issuing Bank”), Bank of America, N.A., as syndication agent, and Comerica Bank, Fortis Capital
Corp., and Union Bank of California, N.A., as co-documentation agents, as amended by that certain
First Amendment to Amended and Restated Credit Agreement dated as of March 31, 2004, and by that
certain Second Amendment to Amended and Restated Credit Agreement dated as of July 16, 2004 (such
Amended and Restated Credit Agreement, as so amended and as further amended, restated or
supplemented from time to time prior to the date hereof, the “Credit Agreement”).
B. The Borrower has requested that the lenders party to the Credit Agreement immediately prior
to Amendment Effective Date (the “Existing Lenders”) and the Administrative Agent amend and modify
the Credit Agreement to allow AmSouth Bank (the “New Lender”) to become a “Lender” party to the
Credit Agreement, as set forth herein.
C. Subject to the terms and conditions of this Third Amendment, the Existing Lenders, New
Lender, the Administrative Agent and the Issuing Bank have agreed to enter into this Third
Amendment in order to effectuate such amendments and modifications.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein,
the parties agree as follows:
Section 1. Definitions. Unless otherwise defined in this Third Amendment, each capitalized
term used in this Third Amendment (including in the preliminary statement above) has the meaning
assigned to such term in the Credit Agreement.
Section 2. Amendment of Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the existing Schedule
2.1 to the Credit Agreement and inserting in its place the text contained in
Attachment 1 attached to this Third Amendment as the new Schedule 2.1 to the Credit
Agreement.
(b) The Credit Agreement is hereby amended by inserting at the end of the
existing Schedule 10.2 to the Credit Agreement the text contained in Attachment 2
attached to this Third Amendment.
Section 3. AmSouth Bank as a Lender.
(a) Upon the Amendment Effective Date and by its execution and delivery hereof,
New Lender shall be deemed automatically to have become a party to the Credit
Agreement, shall have all the rights and obligations of a “Lender” under the Credit
Agreement and the other Loan Documents as if it were an original signatory thereto,
and shall agree, and does hereby agree, to be bound by the terms and conditions set
forth in the Credit Agreement and the other Loan Documents to which the Lenders are
a party, in each case, as if it were an original signatory thereto.
(b) New Lender (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in Section
5.5 thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Third Amendment and
become a party to the Credit Agreement; (ii) agrees that is has independently and
without reliance upon any Existing Lender or the Administrative Agent and based on
such information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Third Amendment and the Credit Agreement (and that it
will, independently and without reliance upon the Administrative Agent, the Issuing
Bank, the Arranger or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement); (iii) represents and
warrants that (1) its name set forth herein is its legal name, (2) it has the full
power and authority and the legal right to make, deliver and perform, and has taken
all necessary action, to authorize the execution, delivery and performance of this
Third Amendment, and any and all other documents delivered by it in connection
herewith and to fulfill its obligations under, and to consummate the transactions
contemplated by, this Third Amendment, the Credit Agreement and the Loan Documents,
(3) no consent or authorization of, filing with, or other act by or in respect of
any Governmental Authority, is required in connection in connection herewith or
therewith, and (4) this Third Amendment constitutes its legal, valid and binding
obligation; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto; (v)
appoints and authorizes the Issuing Bank to take such action as letter of credit
issuing bank on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to the Issuing Bank by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (vi) agrees that it
will perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (vii)
represents and warrants that under applicable Laws no tax will be required to be
withheld by the Administrative Agent or the Borrower with respect to any payments to
be made to New Lender hereunder or under any Loan Document, and no tax forms
described in
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Section 3.8 of the Credit Agreement are required to be delivered by New Lender
(or if required, such tax forms have been delivered to the Administrative Agent as
required under Section 3.8 of the Credit Agreement).
(c) New Lender hereby advises each other party hereto that its address for
notices and its Lending Office shall be as set forth below its name on Schedule 10.2
to the Credit Agreement (as amended hereby).
Section 4. Increase of Borrowing Base.
(a) The Borrowing Base shall be increased to $350,000,000 from and after the
Amendment Effective Date until the Borrowing Base shall be otherwise redetermined in
accordance with the Credit Agreement.
(b) Both the Borrower, on the one hand, and the Administrative Agent, the
Issuing Bank and the Lenders, on the other hand, agree that the redetermination of
the Borrowing Base pursuant to clause (a) of this Section 4 constitutes the
redetermination of the Borrowing Base with respect to the regularly scheduled
Evaluation Date of November 1, 2005 (and shall not constitute a special or
discretionary redetermination of the Borrowing Base pursuant to clause (a) of the
definition of “Evaluation Date” in Section 1.1 of the Credit Agreement).
Section 5. Ratification. The Borrower hereby ratifies and confirms all of the Obligations
under the Credit Agreement and the other Loan Documents.
Section 6. Effectiveness. This Third Amendment shall become effective on and as of the
Amendment Effective Date upon satisfaction of each of the conditions set forth in this Section 6:
(a) The Administrative Agent shall have received duly executed counterparts of
this Third Amendment from the Borrower, the Issuing Bank and each Lender (including
New Lender), and duly acknowledged by each of the Guarantors.
(b) The Borrower shall deliver to the Administrative Agent on behalf of each
Lender (including New Lender) a promissory note dated the Closing Date and payable
to each such Lender in a maximum principal amount equal to such Lender’s Percentage
Share (as shown on Attachment 1 hereto) of $400,000,000, which Note shall be a
renewal and replacement of, and shall be given in substitution and exchange for, but
not in payment of, those Notes held by the Existing Lenders prior to the Amendment
Effective Date.
(c) The Borrower shall pay to the Administrative Agent for the account of each
Lender (including the New Lender) a fee equal to one-fifth of one percent (0.20%) of
the positive difference of (i) each such Lender’s respective Percentage Share
immediately after giving effect to this Third Amendment of
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$350,000,000, minus (ii) each such Lender’s respective Percentage Share
immediately prior to the effectiveness of this Third Amendment of $300,000,000.
(d) The Borrower shall have confirmed and acknowledged to the Administrative
Agent, the Issuing Bank and the Lenders, and by its execution and delivery of this
Third Amendment the Borrower does hereby confirm and acknowledge to the
Administrative Agent, the Issuing Bank and the Lenders, that (i) the execution,
delivery and performance of this Third Amendment has been duly authorized by all
requisite corporate action on the part of the Borrower; (ii) the Credit Agreement
and each other Loan Document to which it is a party constitute valid and legally
binding agreements enforceable against the Borrower in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar laws
relating to or affecting the enforcement of creditors’ rights generally and by
general principles of equity, (iii) the representations and warranties by the
Borrower and each Guarantor contained in the Credit Agreement and in the other Loan
Documents are true and correct on and as of the date hereof in all material respects
as though made as of the date hereof, and (iv) no Default or Event of Default exists
under the Credit Agreement or any of the other Loan Documents.
Section 7. Renewal and Continuation of Existing Loans. Upon the Amendment Effective Date:
(a) All of the Obligations outstanding under the Credit Agreement as of the
Amendment Effective Date shall hereby be restructured, rearranged, renewed, extended
and continued under the Credit Agreement (as amended hereby) and all Loans
outstanding under the Credit Agreement as of the Amendment Effective Date shall
hereby become Loans outstanding under the Credit Agreement (as amended hereby).
(b) In connection herewith, the Existing Lenders hereby sell, assign, transfer
and convey, and New Lender hereby purchases and accepts, so much of the Aggregate
Commitments under, Loans outstanding under, and participations in Letters of Credit
issued pursuant to, the Credit Agreement such that the Percentage Share of each
Lender (including the Existing Lenders and New Lender) shall be as set forth on
Schedule 2.1 to the Credit Agreement (as amended hereby). The foregoing
assignments, transfers and conveyances are without recourse to the Existing Lenders
and without any warranties whatsoever by the Administrative Agent, the Issuing Bank
or any Existing Lender as to title, enforceability, collectibility, documentation or
freedom from liens or encumbrances, in whole or in part, other than the warranty of
each Existing Lender, severally and not jointly, that it has not previously sold,
transferred, conveyed or encumbered such interests.
Section 8. Representations of Existing Lenders. Each Existing Lender, severally and not
jointly, represents and warrants to the Administrative Agent, each other Existing Lender
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and New Lender that (1) it has the power and authority and the legal right to make, deliver
and perform, and has taken all necessary action, to authorize the execution, delivery and
performance of this Third Amendment and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Third Amendment, and no consent or authorization of, filing
with, or other act by or in respect of any Governmental Authority, is required in connection in
connection herewith or therewith; and (2) this Third Amendment constitutes the legal, valid and
binding obligation of such Existing Lender. None of the Administrative Agent, the Issuing Bank or
any Existing Lender makes any representation or warranty or assumes any responsibility with respect
to the financial condition of the Borrower or any of its Affiliates or the performance by the
Borrower or any of its Affiliates of their respective obligations under the Loan Documents, and
none of the Administrative Agent, the Issuing Bank or any Existing Lender assumes any
responsibility with respect to any statements, warranties or representations made under or in
connection with any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document other than as expressly set forth above.
Section 9. Governing Law. This Third Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York (without giving effect to the principles thereof
relating to conflicts of law except section 5-1401 of the New York General Obligations Law).
Section 10. Miscellaneous. (a) On and after the Amendment Effective Date, each reference in
each Loan Document to “this Agreement”, “this Note”, “this Mortgage”,
“hereunder”, “hereof” or words of like import, referring to such Loan Document, and
each reference in each other Loan Document to “the Credit Agreement”, “the Notes”,
“the Mortgages”, “thereunder”, “thereof” or words of like import referring
to the Credit Agreement, the Notes, or the Mortgage or any of them, shall mean and be a reference
to such Loan Document, the Credit Agreement, the Notes, the Mortgage or any of them, as amended or
otherwise modified by this Third Amendment; (b) the execution, delivery and effectiveness of this
Third Amendment shall not, except as expressly provided herein, operate as a waiver of any default
of the Borrower or any other Loan Party or any right, power or remedy of the Administrative Agent,
the Issuing Bank and the Lenders under any of the Loan Documents, nor constitute a waiver of any
provision of any of the Loan Documents; (c) this Third Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement; and (d) delivery of an executed counterpart of a signature page to this Third
Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this
Third Amendment.
Section 11. Final Agreement. THE CREDIT AGREEMENT 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 ORAL AGREEMENTS BETWEEN
THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed by its
officers thereunto duly authorized as of the date first above written.
| BORROWER: | ||||||
| XXXXXXXX RESOURCES, INC., a Nevada corporation |
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| By: Name: |
/s/ XXXXXX X. XXXXX
|
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| Title: | Chief Financial Officer | |||||
| ADMINISTRATIVE AGENT, ISSUING BANK AND LENDERS: |
||||||
| BANK OF MONTREAL, as Administrative Agent, Issuing Bank and Lender |
||||||
| By: | /s/ XXXX XXX XXXXX | |||||
| Name: | Xxxx Xxx Xxxxx | |||||
| Title: | Vice President | |||||
| BANK OF AMERICA, N.A., | ||||||
| By: | /s/ XXXXXXX X. XXXXXXXX | |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | Principal | |||||
| FORTIS CAPITAL CORP. | ||||||
| By: | /s/ XXXXXXX XXXXX | |||||
| Name: | Xxxxxxx Xxxxx | |||||
| Title: | Senior Vice President | |||||
| By: | /s/ XXXXX XXXXXXX | |||||
| Name: Title: |
Xxxxx Xxxxxxxx Managing Director |
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| COMERICA BANK | ||||||
| By: Name: |
/s/ XXXX XXXXX
|
|||||
| Title: | Senior Vice President | |||||
| UNION BANK OF CALIFORNIA, N.A. | ||||||
| By: | /s/ XXXX XXXXXX | |||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | Vice President | |||||
| THE BANK OF NOVA SCOTIA | ||||||
| By: | /s/ X. XXXX | |||||
| Name: | X. Xxxx | |||||
| Title: | Senior Manager | |||||
| BANK OF SCOTLAND | ||||||
| By: | /s/ XXXXX XXXXX | |||||
| Name: Title: |
Xxxxx Xxxxx Assistant Vice President |
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| COMPASS BANK | ||||||
| By: | /s/ XXXXXXX XXXXXXXX | |||||
| Name: | Xxxxxxx Xxxxxxxx | |||||
| Title: | Senior Vice President | |||||
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| CALYON NEW YORK BRANCH, as Successor by Consolidation to Credit Lyonnais New York Branch |
||||||
| By: Name: |
/s/ XXXXXXX XXXXXX
|
|||||
| Title: | Vice President | |||||
| By: | /s/ XXXXXXXX CORD’HOMME | |||||
| Name: | Xxxxxxxx Cord’homme | |||||
| Title: | Director | |||||
| HIBERNIA NATIONAL BANK | ||||||
| By: | /s/ XXXXX X. XXXXXXX | |||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
| THE ROYAL BANK OF SCOTLAND plc | ||||||
| By: | /s/ XXXXXX X. XXXXXXXX XX. | |||||
| Name: | Xxxxxx X. Xxxxxxxx Xx. | |||||
| Title: | Vice President | |||||
| NATEXIS BANQUES POPULAIRES | ||||||
| By: | /s/ XXXXXXX X. XXXXXXXXX | |||||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||||
| Title: | Vice President & Group Manager | |||||
| By: | /s/ XXXXX X. XXXXXXX, III | |||||
| Name: | Xxxxx X. Xxxxxxx, III | |||||
| Title: | Vice President & Group Manager | |||||
| AMSOUTH BANK | ||||||
| By: | /s/ XXXXXXX X. XXXXXXX | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
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ACKNOWLEDGMENT BY GUARANTORS
Each of the undersigned Guarantors hereby (i) consents to the terms and conditions of that
certain Third Amendment to Credit Agreement dated as of December 30, 2005 (the “Third Amendment”),
(ii) acknowledges and agrees that its consent is not required for the effectiveness of the Third
Amendment, (iii) ratifies and acknowledges its respective Obligations under each Loan Document to
which it is a party, and (iv) represents and warrants that (a) no Default or Event of Default has
occurred and is continuing, (b) it is in full compliance with all covenants and agreements
pertaining to it in the Loan Documents, and (c) it has reviewed a copy of the Third Amendment.
| XXXXXXXX OIL & GAS HOLDINGS, INC. XXXXXXXX OIL & GAS — LOUISIANA, LLC XXXXXXXX OFFSHORE, LLC XXXXXXXX OIL & GAS GP, LLC, |
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| By Xxxxxxxx Resources, Inc., its sole member | ||||||
| XXXXXXXX OIL & GAS, LP, | ||||||
| By Xxxxxxxx Oil & Gas GP, LLC, | ||||||
| its general partner, | ||||||
| By Xxxxxxxx Resources, Inc., its sole member | ||||||
| By: Name: |
/s/ XXXXXX X. XXXXX
|
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| Title: | Chief Financial Officer | |||||
| XXXXXXXX OIL & GAS INVESTMENTS, LLC | ||||||
| By: | /s/ XXXXXX X. XXXXX | |||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Manager | |||||
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