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EXHIBIT 10.4.6
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amendment to Amended and Restated Credit Agreement (this
"Second Amendment") is entered into as of the ___ day of _____, 1997, by and
among Patina Oil & Gas Corporation ("Borrower"), Texas Commerce Bank National
Association, as Administrative Agent ("Administrative Agent"), NationsBank of
Texas, N.A., as Documentary Agent ("Documentary Agent"), Xxxxx Fargo Bank,
N.A., CIBC, Inc. and Credit Lyonnais New York Branch, as Co-Agents
("Co-Agents") and the financial institutions a party to the Credit Agreement
(as hereinafter defined) as Banks (individually a "Bank" and collectively
"Banks").
W I T N E S E T H:
WHEREAS, Borrower, Administrative Agent, Documentary Agent, Co-Agents
and Banks are parties to that certain Amended and Restated Credit Agreement
dated as of April 1, 1997, as amended by that certain First Amendment to
Amended and Restated Credit Agreement dated as of May 1, 1997, by and among
Borrower, Administrative Agent, Documentary Agent, Co-Agents and Banks (as
amended through the date hereof, 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, Banks have made a certain
revolving credit loan to Borrower; and
WHEREAS, Borrower has filed a registration statement with the
Securities and Exchange Commission covering the sale of 8,625,000 shares (the
"Registered Shares") of Common Stock ; and
WHEREAS, Borrower has advised Banks and Agents that concurrently with
the sale of the Registered Shares Borrower intends to (a) issue and sell in
private transactions up to 2,520,000 shares of its 8.5% Convertible Preferred
Stock (the "New Preferred Stock") for an aggregate purchase price of up to
$63,000,000, (b) loan up to $850,000 (the "Management Loan") to certain
executive officers and members of the management of Borrower (the "Management
Investors"), the proceeds of which shall be used in connection with the
purchase by such Management Investors of shares of Common Stock having an
aggregate purchase price of up to $3,000,000, and (c) use the proceeds from the
sales described in clauses (a) and (b) above, together with Borrowings under
the Agreement, to purchase the balance of the Common Stock owned and held by
SOCO subsequent to the sale of the Registered Shares (the "Repurchase"); and
WHEREAS, Borrower has requested that the Credit Agreement be amended
to (a) permit Distributions in connection with the New Preferred Stock, (b)
permit the Management Loan, (c) permit the Repurchase, and (d) delete Sections
11.1(o), (p) and (q),each of which sections pertain to various control
requirements related to SOCO; and
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WHEREAS, subject to the terms and conditions set forth herein, Agents
and 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, each Agent and each Bank hereby agree as follows:
Section 1. Amendments. In reliance on the representations,
warranties, covenants and agreements contained in this Second Amendment, the
Credit Agreement shall be amended effective ________, 1997 in the manner
provided in this Section 1.
1.1. Amendment to Definitions. The definitions of "Loan Papers,"
"Permitted Investments," and "SOCO" contained in Section 1.1 of the Credit
Agreement shall be amended to read in full as follows:
"Loan Papers" means this Agreement, the Notes, the Restricted
Subsidiary Guarantee, the Restricted Subsidiary Pledge Agreement, the
First Amendment, the Second Amendment, all Mortgages now or at any
time hereafter delivered pursuant to Section 5.1, and all other
certificates, documents or instruments delivered in connection with
this Agreement, as the foregoing may be amended from time to time.
"Permitted Investment" means, with respect to Borrower or any
Restricted Subsidiary, (a) readily marketable direct obligations of
the United States of America, (b) fully insured time deposits and
certificates of deposit with maturities of one (1) year or less of any
commercial bank operating in the United States having capital and
surplus in excess of $50,000,000.00, (c) commercial paper of a
domestic issuer if at the time of purchase such paper is rated in one
of the two highest ratings categories of Standard and Poor's
Corporation or Xxxxx'x Investors Service, (d) any reverse repurchase
agreement entered into with a commercial bank meeting the criteria
described in clause (b) preceding which is secured by a fully
perfected security interest in a security of the type described in
clauses (a) through (c) preceding and which security has a market
value at the time such reverse repurchase agreement is entered into of
not less than 100% of the obligation of such commercial bank under
such reverse repurchase agreement, (e) Investments by Borrower and its
Restricted Subsidiaries in Borrower or Restricted Subsidiaries of
Borrower, (f) Investments outstanding as of the date hereof described
on Schedule 2 hereof, (g) the Management Loan, and (h) Investments by
Borrower and its Restricted Subsidiaries which when made, together
with all other Investments made pursuant to this clause (h) do not
exceed an amount (measured at cost) greater than five percent (5%) of
the Borrowing Base then in effect.
"SOCO" means Xxxxxx Oil Corporation, a Delaware corporation.
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1.2. Additional Definitions. Section 1.1 of the Credit Agreement
shall be amended to add the following definitions to such Section:
"Management Investors" means, collectively, those certain
executive officers and members of management of Borrower purchasing
the Management Stock, including, without limitation, Xxxxxx X.
Xxxxxxx.
"Management Loan" means a loan in the maximum aggregate
principal amount of $850,000, evidenced by those certain promissory
notes dated _____________, 1997, executed by the Management Investors
and payable to Borrower, the proceeds of which shall be used in
connection with the purchase by such Management Investors of the
Management Stock.
"Management Loan Documents" means, collectively, (a) those
certain promissory notes dated _________, 1997, in the original
aggregate principal amount of $850,000, executed by the Management
Investors and payable to Borrower, and (b) all other documents,
instruments and agreements which evidence or otherwise pertain to the
Management Loan.
"Management Stock" means Common Stock having an aggregate
purchase price of $3,000,000 which is to be issued and sold to the
Management Investors.
"New Preferred Stock" means Borrower's 8.5% Convertible
Preferred Stock containing the rights and preferences set forth in,
and issued pursuant to, the New Preferred Stock Designation.
"New Preferred Stock Designation" means the Certificate of
Designation of Rights and Preferences of 8.5% Convertible Preferred
Stock filed with the Secretary of State of Delaware on or about
______________, 1997, setting forth the rights and preferences of the
New Preferred Stock.
"New Preferred Stock Investors" means, collectively, those
Persons purchasing the New Preferred Stock, including, without
limitation, First Reserve Fund VII, Limited Partnership, Chase Venture
Capital Associates, L.P. and Highbridge International LDC.
"Offering" means the underwritten public offering pursuant to
an effective registration statement under the Securities Act of 1933,
as amended, covering the offering and sale of 8,625,000 shares of
Common Stock, 7,500,000 shares of which are being offered by SOCO, and
1,125,000 of which may be sold by SOCO upon exercise of the
underwriter's overallotment option.
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"Post-Offering Shares" means the balance of the Common Stock
held by SOCO subsequent to the sale of the shares of Common Stock held
by SOCO pursuant to the Offering. The Post-Offering Shares shall be
equal to the difference between (a) the 14,000,000 shares of Common
Stock held by SOCO prior to the Offering, less (b) the shares of Common
Stock held by SOCO and sold pursuant to the Offering.
"Repurchase" means the repurchase by Borrower of the
Post-Offering Shares with the proceeds from (a) the issuance and sale
of (i) up to $63,000,000 of New Preferred Stock to the New Preferred
Stock Investors, and (ii) up to $3,000,000 of Common Stock to the
Management Investors, and (b) Borrowings under the Agreement.
"Second Amendment" means the Second Amendment to Amended and
Restated Credit Agreement dated as of _______, 1997, entered into by
and among Borrower, Agents, and Banks.
1.3. Determination of Borrowing Base. Subclause (iii) contained in
Section 4.2 of the Credit Agreement shall be amended by inserting the phrase ",
obligations under the New Preferred Stock," immediately following the term
"Preferred Stock" in the second line thereof.
1.4. 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 of Borrower will declare or make any
Restricted Payment; provided, that, so long as no Default, Event of
Default or Borrowing Base Deficiency then exists, and provided that no
Default or Event of Default would result therefrom, Borrower shall be
permitted to (a)(i) declare and pay accrued dividends on the Preferred
Stock, (ii) declare and pay accrued dividends on the New Preferred
Stock, (iii) repurchase any of its Common Stock, Preferred Stock or
New Preferred Stock or warrants, options or other rights to acquire
such Common Stock, Preferred Stock or New Preferred Stock, and (iv)
repurchase, redeem or defease Subordinate Notes, so long as, at any
date, the sum of (x) the aggregate amount of all such dividends
declared and paid pursuant to clauses (i) and (ii) above during the
period commencing on the Closing Date to and including such date, plus
(y) the aggregate amount paid by the Borrower and its Restricted
Subsidiaries in respect of the repurchase of all such Common Stock,
Preferred Stock or New Preferred Stock or warrants, options or other
rights to acquire such Common Stock, Preferred Stock or New Preferred
Stock pursuant to clause (iii) above, plus (z) an amount equal to the
excess of the aggregate repurchase, redemption or defeasance price
paid by Borrower for all Subordinate Notes repurchased, redeemed or
defeased by Borrower
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subsequent to the Closing Date over the sum of 101% of the aggregate
principal balance of all such Subordinate Notes on the date of
repurchase, redemption or defeasance, plus accrued but unpaid interest
on all such Subordinate Notes redeemed, repurchased or defeased on the
date of redemption, repurchase or defeasance shall not exceed the
Restricted Payment Limit in effect at such date, and (b) consummate
and effectuate the Repurchase, which such Repurchase shall not impact
or be counted against the Restricted Payment Limit.
1.6 Amendments to Material Documents Covenant. Section 9.6 of the
Credit Agreement shall be amended to read in full as follows:
SECTION 9.6. Amendments to Material Documents. Borrower
will not, nor will Borrower permit any of its Restricted Subsidiaries
to, (a) enter into any material modification or amendment of, grant
any material consent under, or waive any material right or obligation
of any Person under (i) its certificate or articles of incorporation,
bylaws, partnership agreement, regulations or other organizational
documents, or (ii) any of the Merger Documents, or (b) enter into any
modification or amendment of, grant any consent under, or waive any
right or obligation of any Person under (i) the Indenture, (ii) the
Subordinate Notes, or (iii) the Management Loan Documents; provided,
that, in the case of clause (a)(i), Borrower may make modifications or
amendments authorizing and pertaining to the issuance of the New
Preferred Stock and related matters.
1.7 Deletions to Section 11.1. Sections 11.1(o), (p) and (q) of
the Credit Agreement shall be deleted in their entirety.
SECTION 2. Representations and Warranties. In order to induce
Agents and Banks to enter into this Second Amendment, Borrower hereby
represents and warrants to each Agent and each Bank that:
(a) each representation and warranty of Borrower and the
Restricted Subsidiaries contained in the Loan Papers are true and correct in
all material respects as of the date hereof (except to the extent that such
representations and warranties are expressly made as of a particular date, in
which event such representations and warranties were true and correct as of
such date);
(b) neither a Default nor an Event of Default has occurred which
is continuing; and
(c) Borrower has no defenses to payment, counterclaims or rights
of set-off with respect to the Obligations on the date hereof.
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SECTION 3. Miscellaneous.
3.1 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.
3.2 Parties in Interest. All of the terms and provisions of this
Second Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
3.3 Legal Expenses. Borrower hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Administrative Agent incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of this Second Amendment and all related documents.
3.4 Counterparts. This Second Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however,
no party shall be bound by this Second Amendment until this Second Amendment
has been executed by Borrower, Agents and all Banks at which time this Second
Amendment shall be binding on, enforceable against and inure to the benefit of
Borrower, Agents and all Banks. Facsimiles shall be effective as originals.
3.5 COMPLETE AGREEMENT. THIS SECOND AMENDMENT, THE CREDIT
AGREEMENT AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT AMONG 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.
3.6 Headings. The headings, captions and arrangements used in
this Second Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this Second
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective Authorized Officers on the
date and year first above written.
BORROWER:
PATINA OIL & GAS CORPORATION,
a Delaware corporation
By:_______________________________________
Name:_____________________________________
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Title:____________________________________
ADMINISTRATIVE AGENT:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:_______________________________________
Xxxx X. Xxxx,
Senior Vice President
DOCUMENTARY AGENT:
NATIONSBANK OF TEXAS, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
CO-AGENTS:
CIBC, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________________
Name:_____________________________________
Title:____________________________________
XXXXX FARGO BANK, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
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BANKS:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:_______________________________________
Xxxx X. Xxxx,
Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
CIBC, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:_______________________________________
Name:_____________________________________
Title:____________________________________
XXXXX FARGO BANK, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
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BANK ONE, TEXAS, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
SWAT hereby acknowledges and agrees that the terms and provisions of
this Second Amendment as set forth above shall not in any manner release,
diminish, impair, reduce or adversely effect the obligations of SWAT under, in
connection with, or related to any Loan Paper (to the extent a party thereto),
including, without limitation, the Restricted Subsidiary Guarantee executed and
delivered by SWAT pursuant to Section 5.2 of the Credit Agreement, and SWAT
hereby waives any common law, equitable, statutory or other rights which SWAT
might otherwise have as a result of, or in connection with, the amendments and
modifications contained in this Second Amendment.
SOCO WATTENBERG CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
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