Exhibit 10.3
WAIVER AND SIXTH AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Waiver and Sixth Amendment to Fourth Amended and Restated Credit
Agreement (this "Amendment") dated as of May 2, 2003 (the "Amendment Effective
Date"), is by and among MAGNUM HUNTER RESOURCES, INC., a Nevada corporation (the
"Borrower"), each Bank (as defined in the Credit Agreement referred to below),
DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly named Bankers Trust Company),
individually, as administrative agent (in such capacity, together with its
successors in such capacity, the "Administrative Agent"), as collateral agent
(in such capacity, together with its successors in such capacity, the
"Collateral Agent"), and as letter of credit issuing bank (in such capacity,
together with its successors in such capacity, the "Issuer"), CIBC INC.,
individually and as syndication agent (in such capacity together with its
successors in such capacity, the "Syndication Agent"), and BNP PARIBAS, a French
bank acting through its Houston Agency, individually and as documentation agent
(in such capacity, together with its successors in such capacity, the
"Documentation Agent").
R E C I T A L S:
WHEREAS, the Borrower, each Bank then a party, the Administrative Agent,
the Collateral Agent, the Syndication Agent, the Documentation Agent
(collectively, the "Agents"), and the Issuer have heretofore entered into that
certain Fourth Amended and Restated Credit Agreement dated as of March 15, 2002,
as amended by that certain First Amendment to Fourth Amended and Restated Credit
Agreement dated as of April 19, 2002, and by that certain Second Amendment to
Fourth Amended and Restated Credit Agreement dated as of July 3, 2002, and by
that certain Third Amendment to Fourth Amended and Restated Credit Agreement
dated as of August 28, 2002, and by that certain Fourth Amendment to Fourth
Amended and Restated Credit Agreement dated as of September 6, 2002, and by that
certain Waiver and Fifth Amendment dated as of November 20, 2002, and as
otherwise amended from time to time prior to the Amendment Effective Date (the
"Credit Agreement"), pursuant to which the Banks have agreed to make revolving
credit loans available to the Borrower under the terms and provisions stated
therein; and
WHEREAS, the Borrower has requested that the Banks, the Agents and the
Issuer waive the provisions of Section 7.2.6 of the Credit Agreement, which
limits certain Restricted Payments (as defined therein), in order to permit the
Borrower to redeem and retire notes issued under the 1997 Indenture ("1997
Notes") in an aggregate principal amount of up to $50,000,000 from and after the
Amendment Effective Date through and including September 30, 2003 (the
"Permitted 2003 Redemption"); and
WHEREAS, the Borrower has also requested that the Banks, the Agents and the
Issuer waive the provisions of Section 7.2.6 of the Credit Agreement in order to
permit the Borrower to redeem and retire additional 1997 Notes in an aggregate
principal amount of up to $60,000,000 (which, for the avoidance of doubt, shall
be in addition to any 1997 Notes redeemed and retired pursuant to the Permitted
2003 Redemption) with the proceeds of the issuance by the Borrower of any one
(but only one) of the following types of securities: (i) preferred stock,
convertible
preferred stock or other coupon-bearing equity securities of the Borrower,
(ii) Subordinated Debt of the Borrower, or (iii) senior unsecured notes issued
under a first supplemental bond indenture to the 2002 Indenture, (individually,
as applicable, the "Permitted Refinancing Securities"); provided, however, that
(A) in any case, such Permitted Refinancing Securities shall contain terms and
conditions satisfactory to the Administrative Agent and the Borrower, (B) the
Net Cash Proceeds of such issuance shall be used, and shall only be used, to
redeem and retire 1997 Notes (including any reasonable costs, expenses or fees
associated with such redemption and retirement), (C) any Permitted Refinancing
Securities of the type described in clause (i) above shall not (1) be subject to
any mandatory repurchase or redemption election exercisable by the holder
thereof on or prior to June 1, 2007, (2) obligate the Borrower (or any
Restricted Subsidiary) to make any payments other than accrued dividends to the
holders of such Permitted Refinancing Securities on or prior to June 1, 2007, or
(3) accrue dividends at a rate (or effective yield) in excess of the effective
after-tax interest rate applicable to the 1997 Notes (such dividends, the
"Permitted Refinancing Dividends"), and (D) any Permitted Refinancing Securities
of the type described in clause (ii) or (iii) above shall have a yield to
maturity at issuance equal to or less than 10% and shall mature not sooner than
June 1, 2007 (the "Permitted Refinancing Redemption"); and
WHEREAS, the Borrower has requested that the Credit Agreement be amended to
allow BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financing, Inc. ("BMO"), Australia and New Zealand
Banking Group Limited ("ANZ"), Southwest Bank of Texas N.A. ("Southwest") and
Sterling Bank ("Sterling") to become "Banks" party to the Credit Agreement, as
set forth herein; and
WHEREAS, the Borrower also proposes that certain other amendments and
modifications be made to the Credit Agreement as set forth herein; and
WHEREAS, subject to the terms and conditions of this Amendment, the Banks
(including BMO, ANZ, Southwest and Sterling), the Agents and the Issuer have
agreed to enter into this Amendment in order to effectuate such amendments and
modifications;
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment, to the
extent not otherwise defined herein, shall have the same meaning as in the
Credit Agreement.
Section 2. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) The definition of "Interest Period" in Section 1.1 of the Credit
Agreement is hereby amended by (i) deleting the words "one, two, three or six
months thereafter" and inserting in their place the words "one, two, three, six
or, if (and only if) then available to all of the Banks, twelve months
thereafter" and (ii) amending and restating clause (a) of such definition in its
entirety to provide "(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates occurring on
more than eight (8) different dates;".
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(b) The following definition of "Lead Manager" is hereby inserted in
Section 1.1 of the Credit Agreement in its alphabetically appropriate place:
" `Lead Manager' means any of Bank of Scotland, Bank of Nova Scotia, Bank
of Montreal or Fortis Capital Corp., and any successor thereto, respectively.
`Lead Managers' means all of them."
(c) The definition of "Stated Maturity Date" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to provide:
" `Stated Maturity Date' means May 2, 2006 (as such date may be extended
from time to time pursuant to Section 2.9)."
(d) Clause (k) of Section 7.2.5 of the Credit Agreement is hereby amended
and restated in its entirety to provide:
"(k) so long as no Default has occurred and is continuing and so long as
after giving effect thereto Borrowing Base Usage is not greater than 80%, the
Borrower may make Investments not otherwise permitted pursuant to this Section
7.2.5 not to exceed $25,000,000 in the aggregate for all such Investments;
provided that if the Borrower or any of its Restricted Subsidiaries shall have
made any Investments pursuant to this clause (k) and the Borrower or any of its
Restricted Subsidiaries shall thereafter receive any dividends or returns of
capital from an Unrestricted Subsidiary (but expressly excluding any amounts
received as loans pursuant to Section 7.2.2(m)), then the amount available
thereafter to the Borrower and its Restricted Subsidiaries for additional
Investments pursuant to this clause (k) shall be increased dollar for dollar by
the amount of such dividends or returns of capital up to a maximum amount of
availability not to exceed $25,000,000 at any time;".
(e) Clauses (A) and (B) of the proviso in Section 7.2.6 of the Credit
Agreement are hereby amended and restated in their entirety to provide:
"(A) $25,000,000, plus (B) fifty percent (50%) of the Borrower's
consolidated net income, to be calculated on a cumulative basis, for each Fiscal
Year commencing with the Fiscal Year ending December 31, 2001, minus".
(f) Section 7.2.7 of the Credit Agreement is hereby amended by deleting the
amount "$50,000,000" at the end thereof and inserting in its place the amount
"$60,000,000".
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(g) Section 9.8 of the Credit Agreement is hereby amended and restated in
its entirety to provide as follows:
SECTION 9.8 Documentation Agent, Syndication Agent, Arrangers, Lead
Managers and Bookrunner. The Documentation Agent, the Syndication Agent, the
Arrangers, the Lead Managers and the sole bookrunner shall not have any
obligations, liabilities, responsibilities or duties under this Agreement or the
other Loan Documents. Without limiting the foregoing, the Documentation Agent,
the Syndication Agent, the Arrangers, the Lead Managers and the sole bookrunner
shall not have or be deemed to have any fiduciary relationship with any Bank or
any other Agent. Each Bank acknowledges that it has not relied, and will not
rely, on any of the Banks so identified or on the Documentation Agent, the
Syndication Agent, the Arrangers, the Lead Manager or the sole bookrunner in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
(h) The Credit Agreement is hereby amended by deleting the existing
Schedule III-B to the Credit Agreement and inserting in its place as the new
Schedule III-B to the Credit Agreement the text contained in Attachment 1
attached to this Amendment.
Section 3. Additional Amendments to Credit Agreement Dependent Upon Type of
Permitted Refinancing Securities Issued.
(a) If, and only if, the Borrower issues Permitted Refinancing Securities
of the type described in clause (iii) of the third recital above, then the
definition of "2002 Indenture" in Section 1.1 of the Credit Agreement shall be
deemed to be automatically and concurrently amended to include the first
supplemental bond indenture pursuant to which such Permitted Refinancing
Securities have been issued, together with any related documentation, each as
amended, restated, modified or supplemented form time to time.
(b) If, and only if, the Borrower issues Permitted Refinancing Securities
of the types described in clauses (ii) or (iii) of the third recital above, then
Section 7.2.2 of the Credit Agreement shall be deemed to be automatically and
concurrently amended to permit the Indebtedness represented by such Permitted
Refinancing Securities as if Section 7.2.2 of the Credit Agreement specifically
described such Permitted Refinancing Securities; provided that the principal
amount thereof shall not in any event exceed the sum of (x) the aggregate
principal amount of 1997 Notes to be redeemed and retired with Net Cash Proceeds
of such Permitted Refinancing Securities, (y) the aggregate amount of any
interest or premium payable in respect of the redemption and retirement of such
1997 Notes to the holders thereof, and (z) any reasonable and customary costs,
expenses and fees payable in respect of the redemption and retirement of such
1997 Notes.
(c) If, and only if, the Borrower issues Permitted Refinancing Securities
of the type described in clause (i) of the third recital above, then Section
7.2.6(a) of the Credit
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Agreement shall be deemed to be automatically and concurrently amended to
permit the payment by the Borrower of any Permitted Refinancing Dividends in
accordance with the terms of such Permitted Refinancing Securities
notwithstanding anything to the contrary in Section 7.2.6(a).
Section 4. BMO, ANZ, Southwest and Sterling as Banks.
(a) Upon the effectiveness of this Amendment and by its execution and
delivery hereof, each of BMO, ANZ, Southwest and Sterling shall be deemed
automatically to have become a party to the Credit Agreement, shall have all the
rights and obligations of a "Bank" under the Credit Agreement and the other Loan
Documents as if each 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 Banks are a party, in
each case, as if each were an original signatory thereto.
(b) Each of BMO, ANZ, Southwest and Sterling (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 7.1.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment and the Credit Agreement; (ii) agrees that
it will, independently and without reliance upon any Agent, the Issuer, any
Arranger or any other Bank 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 its name set forth herein is its legal name; (iv) appoints and
authorizes each 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 such
Agent 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 Bank; and (vii) attaches any
U.S. Internal Revenue Service forms required under Section 4.6(b) of the Credit
Agreement.
(c) Each of BMO, ANZ, Southwest and Sterling hereby advises each other
party hereto that its respective address for notices, its respective Domestic
Lending Office and its respective LIBOR Office shall be as set forth below its
name on Attachment 2 hereto.
Section 5. Waiver of Section 7.2.6 of Credit Agreement.
(a) Section 7.2.6 of the Credit Agreement, which restricts the Borrower and
any of its Restricted Subsidiaries from making any payment or prepayment of
principal of, or making any payment of interest on, any Indebtedness on any day
other than the stated, scheduled date for such payment or prepayment set forth
in the documents and instruments memorializing such Indebtedness, or which would
violate the subordination provisions of any Subordinated Debt (except as
expressly permitted by Section 7.2.6 of the Credit Agreement or as otherwise
permitted in writing by the Administrative Agent
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with the consent of the Majority Banks), is hereby waived insofar as, and
only insofar as, the Borrower or any of its Restricted Subsidiaries shall be
permitted to:
(i) redeem and retire 1997 Notes in an aggregate principal amount of up to
$50,000,000 during the period from and after the Amendment Effective Date to
(and including) September 30, 2003, and
(ii) redeem and retire additional 1997 Notes in an aggregate principal
amount of up to $60,000,000, provided that the excess, if any, of (A) the sum of
(x) the aggregate principal amount of such additional 1997 Notes to be redeemed
and retired, (y) all interest and premium payable in respect of the redemption
and retirement of such additional 1997 Notes to the holders thereof, and (z) all
reasonable and customary costs, expenses and fees payable in respect of the
redemption and retirement of such additional 1997 Notes, over (B) the Net Cash
Proceeds of the issuance of the Permitted Refinancing Securities, shall not
exceed $5,000,000 (the "Refinancing Excess"), which Refinancing Excess may be
funded, if necessary, with the proceeds of Loans made under the Credit
Agreement;
provided, however, that, in each case, no Event of Default shall have
occurred and be continuing as of the date of such redemption and retirement.
(b) The parties hereto acknowledge and agree that the redemption of 1997
Notes by the Borrower or any of its Restricted Subsidiaries as permitted by this
Section 5 shall not reduce the remaining availability of the Borrower or its
Restricted Subsidiaries to make other Restricted Payments in accordance with,
and to the extent permitted by, Section 7.2.6 of the Credit Agreement.
Section 6. Increase of Borrowing Base; Restriction on Borrowing
Availability.
(a) Subject to the restrictions on availability set forth in clause (b) of
this Section 6, the Borrowing Base shall be increased to $300,000,000 from and
after the Amendment Effective Date until the Borrowing Base shall either be
reduced in accordance with clause (c) of this Section 6 or otherwise
redetermined in accordance with the Credit Agreement.
(b) Notwithstanding anything to the contrary in the Credit Agreement or
this Amendment, the Borrower covenants and agrees that from and after the
Amendment Effective Date until September 30, 2003, the Borrower shall maintain
at all times sufficient availability under the Credit Agreement to redeem and
retire 1997 Notes in a principal amount equal to the positive difference (if
any) of (i) $50,000,000, minus (ii) the principal amount of all 1997 Notes
redeemed or retired by the Borrower from and after the Amendment Effective Date
as part of the Permitted 2003 Redemption (but expressly excluding for purposes
of this subclause (ii) any 1997 Notes redeemed as part
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of the Permitted Refinancing Redemption), as evidenced by the written
confirmation delivered in accordance with Section 9.
(c) Unless the Borrowing Base shall have been redetermined in accordance
with the Credit Agreement (in which case this Section 6(c) shall automatically
become void), the Borrowing Base shall automatically be reduced on October 1,
2003 from $300,000,000 to an amount equal to (i) $250,000,000 plus (ii) the
aggregate principal amount of 1997 Notes redeemed and retired as part of the
Permitted 2003 Redemption (but expressly excluding any 1997 Notes redeemed and
retired as part of the Permitted Refinancing Redemption), as evidenced by the
written confirmation delivered in accordance with Section 9, until the Borrowing
Base shall be redetermined in accordance with the Credit Agreement.
(d) Both the Borrower, on the one hand, and the Administrative Agent and
the Banks, on the other hand, agree that none of the redeterminations of, or
adjustments to, the Borrowing Base pursuant to this Section 6 shall constitute a
special redetermination of the Borrowing Base pursuant to Section 2.8.3 of the
Credit Agreement.
Section 7. Covenant to Redeem and Retire. The Borrower covenants and agrees
that:
(a) the Borrower shall use (i) the Net Cash Proceeds of the Permitted
Refinancing Securities, and (ii) so long as the aggregate principal amount of
1997 Notes redeemed as part of the Permitted 2003 Redemption is less than
$50,000,000, the proceeds of any Loans under the Credit Agreement that, after
giving effect to such Loans, would cause the aggregate amount of all Loans and
all Letter Credit Liabilities then outstanding to exceed $250,000,000, in each
case, only to redeem and retire 1997 Notes (including the payment of any
reasonable and customary costs, expenses and fees associated therewith) and for
no other purpose;
(b) so long as the aggregate principal amount of 1997 Notes redeemed as
part of the Permitted 2003 Redemption is less than $50,000,000, any Borrowing
Request submitted by the Borrower that would cause the aggregate outstanding
principal amount of all Loans plus the aggregate amount of all Letter of Credit
Liabilities to exceed $250,000,000 (after giving effect to such Borrowing) shall
specifically direct that all of the proceeds of such Borrowing shall be
deposited into an account at a depository institution for the purposes of
redeeming and retiring the 1997 Notes, provided that such depository institution
and the type and nature of such account shall both be acceptable to the
Administrative Agent;
(c) upon the issuance of the Permitted Refinancing Securities, the Borrower
shall cause the Net Cash Proceeds of the Permitted Refinancing Securities to be
deposited into, and thereafter maintained in, an account at a depository
institution for the purposes of redeeming and retiring the 1997 Notes, provided
that such depository institution and the type and nature of such account shall
both be acceptable to the Administrative Agent;
(d) not later than five (5) Business Days immediately following the date on
which the Borrower receives the proceeds of the issuance of the Permitted
Refinancing
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Securities, the Borrower shall deliver a notice of redemption under Section
3.04 of the 1997 Indenture by which the Borrower shall notify the holders of the
1997 Notes that the Borrower is redeeming 1997 Notes having a principal amount
that, together with all interest and premium payable thereon and all reasonable
and customary costs, expenses and fees payable with respect to the redemption
and retirement thereof, equals at least the Net Cash Proceeds of the Permitted
Refinancing Securities;
(e) promptly following the Amendment Effective Date the Borrower shall
cause all 1997 Notes previously repurchased by the Borrower or any Subsidiary of
the Borrower to be retired in accordance with the provisions of the 1997
Indenture.
Section 8. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent:
(a) Executed Amendment. The Administrative Agent shall have received a
counterpart of this Amendment duly executed by the Borrower, the Agents, the
Issuer and each Bank, and duly acknowledged by each of the Guarantors.
(b) Replacement Notes. The Borrower shall deliver to the Administrative
Agent on behalf of each Bank listed on Attachment 1 hereto a promissory note
dated the Effective Date and payable to each such Bank in a maximum principal
amount equal to such Bank's Percentage (as shown on Attachment 1 hereto) of Five
Hundred Million Dollars, 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 each Existing Bank (as defined below) prior to the effectiveness
of this Amendment.
(c) Opinion of Counsel. The Administrative Agent shall have received an
opinion of the general counsel of the Borrower in form and substance reasonably
enforceability of this Amendment.
(d) Other Conditions. The Borrower shall have confirmed and acknowledged to
the Agents, the Issuer and the Banks, and by its execution and delivery of this
Amendment the Borrower does hereby confirm and acknowledge to the Administrative
Agent and the Banks, that (i) the execution, delivery and performance of this
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 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.
8
Section 9. Condition Subsequent. Promptly following the redemption and
retirement of any 1997 Notes, the Borrower covenants to deliver to the
Administrative Agent a certificate of an Authorized Officer of the Borrower
setting forth the principal amount of all 1997 Notes that have been redeemed and
retired by the Borrower since the Amendment Effective Date in accordance with
the 1997 Indenture, together with such other related materials evidencing such
redemption and retirement as the Administrative Agent may request in its sole
discretion.
Section 10. Fees. Concurrently with the effectiveness of this Amendment,
the Borrower shall pay to the Administrative Agent for the account of each Bank
a fee equal to one-eighth of one percent (0.125)% of each Bank's respective
Percentage (immediately after giving effect to this Amendment) of $300,000,000.
Section 11. Ratification of Credit Agreement. Except as expressly amended,
modified or waived by this Amendment, the terms and provisions of the Credit
Agreement and the other Loan Documents are ratified and confirmed in all
respects and shall continue in full force and effect.
Section 12. Expenses. The Borrower agrees to pay on demand all expenses set
forth in Section 10.3 of the Credit Agreement.
Section 13. Renewal and Continuation of Existing Loans. Upon the
effectiveness of this Amendment:
(a) All of the Obligations outstanding under the Credit Agreement as of the
date of such effectiveness 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 date of such
effectiveness shall hereby become Loans outstanding under the Credit Agreement
(as amended hereby).
(b) In connection herewith, Banks party to the Credit Agreement prior to
the effectiveness of this Amendment (the "Existing Banks") hereby sell, assign,
transfer and convey, and each of BMO, ANZ, Southwest and Sterling 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 of each Bank (including the
Existing Banks and each of BMO, ANZ, Southwest and Sterling) shall be as set
forth on Schedule III-B to the Credit Agreement. The foregoing assignments,
transfers and conveyances are without recourse to the Existing Banks and without
any warranties whatsoever by any Agent, the Issuer or any Existing Bank as to
title, enforceability, collectibility, documentation or freedom from liens or
encumbrances, in whole or in part, other than the warranty of each Existing Bank
that it has not previously sold, transferred, conveyed or encumbered such
interests.
Section 14. Miscellaneous. (a) On and after the effectiveness of this
Amendment, each reference in each Loan Document to "this Agreement", "this
Note", "this Mortgage", "this Guaranty", "this Pledge Agreement", "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", "the Guaranty", "the Pledge Agreement",
9
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, the Notes, or the Mortgage, the Guaranty, the Pledge Agreement or any
of them, shall mean and be a reference to such Loan Document, the Credit
Agreement, the Notes, the Mortgage, the Guaranty, the Pledge Agreement or any of
them, as amended or otherwise modified by this Amendment; (b) the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any default of the Borrower or any right, power or remedy of the Administrative
Agent or the Banks under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents; (c) this 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 Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
Section 15. Severability. Any provisions of this Amendment held by court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provisions so held to be invalid or unenforceable.
Section 16. Applicable Law. THIS AMENDMENT AND EACH OTHER LOAN DOCUMENT
DELIVERED PURSUANT HERETO SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICT
OF LAW, EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). This
Amendment constitutes the entire understanding among the parties hereto with
respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 17. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agents, the Issuer, the Banks and the Borrower
and their respective successors and assigns.
Section 18. Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
Section 19. NO ORAL AGREEMENTS. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE MATTERS HEREIN
CONTAINED, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
[Signature pages follow]
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EXECUTED as of the day and year first above written.
BORROWER:
--------
MAGNUM HUNTER RESOURCES, INC.
By:
----------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Chief Financial Officer
AGENTS, BANKS AND ISSUER
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly named Bankers Trust Company), as Administrative
Agent, Collateral Agent, Issuer and a Bank
By
----------------------------------------------
Name:
Title:
CIBC INC., as Syndication Agent and a Bank
By
----------------------------------------------
Name:
Title:
S-1
BNP PARIBAS, as Documentation Agent and a Bank
By:
----------------------------------------------
Name:
Title:
- and -
By:
----------------------------------------------
Name:
Title:
FORTIS CAPITAL CORP., as a Bank
By:
----------------------------------------------
Name:
Title:
- and -
By:
----------------------------------------------
Name:
Title:
BANK OF SCOTLAND, as a Bank
By:
----------------------------------------------
Name:
Title:
BANK OF NOVA SCOTIA, as a Bank
By:
----------------------------------------------
Name:
Title:
S-2
UNION BANK OF CALIFORNIA, N.A., as a Bank
By:
----------------------------------------------
Name:
Title:
COMPASS BANK, as a Bank
By:
----------------------------------------------
Name:
Title:
COMERICA BANK - TEXAS, as a Bank
By:
----------------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK, FA, as a Bank
By:
----------------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK, as a Bank
By:
----------------------------------------------
Name:
Title:
S-3
U.S. BANK NATIONAL ASSOCIATION, as a Bank
By:
----------------------------------------------
Name:
Title:
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCING, INC.,
as a Bank
By:
----------------------------------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as a Bank
By:
----------------------------------------------
Name:
Title:
SOUTHWEST BANK OF TEXAS N.A., as a Bank
By:
----------------------------------------------
Name:
Title:
STERLING BANK, as a Bank
By:
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Name:
Title:
S-4
ACKNOWLEDGMENT BY GUARANTORS
Each of the undersigned Guarantors hereby (i) consents to the terms and
conditions of that certain Waiver and Sixth Amendment to Fourth Amended and
Restated Credit Agreement dated as of May 2, 2003 (the "Sixth Amendment"), (ii)
acknowledges and agrees that its consent is not required for the effectiveness
of the Sixth 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
Sixth Amendment.
Executed to be effective as of May 2, 2003.
GUARANTORS:
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HUNTER GAS GATHERING, INC.
GRUY PETROLEUM MANAGEMENT CO.
MAGNUM HUNTER PRODUCTION, INC.
CONMAG ENERGY CORPORATION
TRAPMAR PROPERTIES, INC.
PINTAIL ENERGY, INC.
PRIZE OPERATING COMPANY
PEC (DELAWARE), INC.
OKLAHOMA GAS PROCESSING, INC.
By:
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
PRIZE ENERGY RESOURCES, L.P.
By: Prize Operating Company,
as its general partner
By:
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Name: Senior Vice President and
Chief Financial Officer
S-5
