EXHIBIT 10.12.8
EIGHTH AMENDMENT TO FIFTH RESTATED CREDIT AGREEMENT
This Eighth Amendment to Fifth Restated Credit Agreement ("EIGHTH
AGREEMENT") is entered into as of the 1st day of November, 1998, by and among
Xxxxxx Oil Corporation ("BORROWER"), NationsBank, N.A., successor by merger to
NationsBank of Texas, N.A., as Agent ("AGENT"), and NationsBank, N.A., successor
by merger to NationsBank of Texas, N.A. ("NATIONSBANK"), Bank One, Texas, N.A.
("BANK ONE"), Xxxxx Fargo Bank, N.A. ("XXXXX FARGO"), Chase Bank of Texas, N.A.,
formerly known as Texas Commerce Bank National Association ("TCB," together with
NationsBank, Bank One and Xxxxx Fargo, collectively referred to herein as
"ORIGINAL BANKS") and Credit Lyonnais New York Branch, as Banks ("BANKS").
WITNESSETH:
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 Agreement
by and among Borrower, Agent and the Original Banks dated as of November 1,
1996, (vi) Sixth Amendment to Fifth Restated Credit Agreement by and among
Borrower, Agent and Banks dated as of May 19, 1997, and (vii) Seventh Amendment
to Fifth Restated Credit Agreement by and among Borrower, Agent and Banks dated
as of October 13, 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 requested that certain provisions of the Credit
Agreement, including, without limitation, Section 10.3 and related definitions
be amended in certain respects; and
WHEREAS, Borrower has requested that Banks (i) establish a Total
Borrowing Base of $150,000,000 with $90,000,000 allocated to Facility A and
$60,000,000 allocated to Facility B effective November 1, 1998 and continuing
until the next Determination Date, and (ii) extend the Facility B Termination
Date to October 30, 1999; 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 Banks hereby agree as follows:
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 Eighth Amendment, the
Credit Agreement shall be amended effective November 1, 1998 (the "EFFECTIVE
DATE") in the manner provided in this Section 1.
1.1 AMENDMENT TO DEFINITIONS. The definitions of "CONSOLIDATED CASH
FLOW" and "LOAN PAPERS" contained in Section 1.1 of the Credit Agreement shall
be amended to read in full as follows:
"Consolidated Cash Flow" means, with respect to Borrower for a
time period, consolidated net income of Borrower for such time period
as set forth in the financial statements delivered pursuant to SECTION
8.1 (a) exclusive of net gain or loss (after provision for Taxes) on
the sale of assets, other than production sold in the ordinary course
of business, during such time period, (b) exclusive of income
attributable to any Subsidiary which is an Exempt Subsidiary as of the
last day of such time period, except to the extent of dividends
actually received by Borrower or a Restricted Subsidiary from such
Exempt Subsidiary during such Period, (c) exclusive of income
attributable to assets which are not owned beneficially and of record
by Borrower or a Restricted Subsidiary as of the last day of such time
period, (d) plus or minus, as appropriate, changes in deferred Taxes
with respect to such time period, (e) plus depreciation, depletion,
amortization of principal and other non-cash charges for such time
period, and (f) plus exploration expenses deducted in determining
consolidated net income.
"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 Eighth
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:
"Eighth Amendment" means that certain Eighth Amendment to
Fifth Restated Credit Agreement dated as of November 1, 1998, by and
among Borrower, Agent and the Banks.
1.3 RATIO OF CONSOLIDATED TOTAL DEBT AND CONSOLIDATED SENIOR
DEBT TO CONSOLIDATED TANGIBLE NET WORTH OF BORROWER COVENANT. Section 10.3 of
the Credit Agreement shall be amended to read in full as follows:
SECTION 10.3 RATIO OF CONSOLIDATED TOTAL DEBT AND
CONSOLIDATED SENIOR DEBT TO CONSOLIDATED TANGIBLE NET WORTH OF
BORROWER. Borrower will not permit its consolidated total Debt as of
the end of any fiscal quarter to exceed two hundred twenty-five percent
(225%) of its Consolidated Tangible Net Worth as of the end of such
fiscal quarter. Borrower will not permit its Consolidated Senior Debt
as of the end of any fiscal quarter to exceed one hundred twenty
percent (120%) of its Consolidated Tangible Net Worth as of the end of
such fiscal quarter.
SECTION 2 DETERMINATION OF BORROWING BASE. In accordance with SECTIONS
4.1 and 4.4 of the Credit Agreement, effective November 1, 1998 and continuing
until the next Determination Date, the Total Borrowing Base shall be
$150,000,000, allocated as follows: $90,000,000 to the Facility A Borrowing Base
and $60,000,000 allocated to the Facility B Borrowing Base.
SECTION 3 EXTENSION OF FACILITY B TERMINATION DATE. In accordance with
SECTION 2.9(b) of the Credit Agreement, the Facility B Termination Date is
hereby extended from April 30, 1999 to October 30, 1999.
SECTION 4 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENTS. The
amendments to the Credit Agreement contained in SECTION 1 of this Eighth
Amendment and the redetermination and allocation of the Total Borrowing Base and
extension of the Facility B Termination Date pursuant to Sections 2 and 3 of
this Eighth Amendment shall be effective only upon payment by Borrower to Agent
for the ratable benefit of the Banks of an amendment and borrowing base increase
fee in the amount of $75,000. If this condition has not been satisfied by the
Effective Date, this Eighth 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 Eighth Amendment, Borrower hereby represents
and warrants to Agent as follows:
5.1 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. 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 hereof.
5.2 DUE AUTHORIZATION; NO CONFLICTS. The execution, delivery
and performance by Borrower of this Eighth Amendment are within the Borrower's
corporate powers, have been duly authorized by necessary action, require no
action by or in request 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 of the Subsidiaries of Borrower except
Permitted Encumbrances.
5.3 VALIDITY AND ENFORCEABILITY. This Eighth 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 Obligations 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 Eighth 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 Eighth
Amendment and all related documents.
6.5 COUNTERPARTS. This Eighth Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this Eighth Amendment until all parties have executed a
counterpart. Facsimiles shall be effective as originals.
6.6 COMPLETE AGREEMENT. THIS EIGHTH 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 Eighth Amendment are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify or modify the terms of this Eighth
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
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:
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Name:
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Title:
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AGENT:
NATIONSBANK, N.A.,
successor by merger to
NationsBank of Texas, N.A.
By:
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J. Xxxxx Xxxxxx,
Vice President
BANKS:
NATIONSBANK, N.A.,
successor by merger to
NationsBank of Texas, N.A.
By:
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J. Xxxxx Xxxxxx,
Vice President
CHASE BANK OF TEXAS, N.A.
By:
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Name:
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Title:
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BANK ONE, TEXAS, N.A.
By:
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Name:
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Title:
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XXXXX FARGO BANK, N.A.
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
