EXHIBIT 10.1
FOURTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
Fourth Amendment, dated as of September 30, 2003 (this
"Amendment"), to the Amended and Restated Credit Agreement, dated as of January
14, 2003 (as amended to date, "Credit Agreement"), by and among KCS ENERGY,
INC., a Delaware corporation (the "Borrower"), the lenders from time to time
party thereto (each a "Lender" and collectively, the "Lenders"), XXXXX FARGO
FOOTHILL, INC., a California corporation, formerly known as Foothill Capital
Corporation ("Foothill"), as collateral agent for the Lenders (in such capacity,
together with any successor collateral agent, the "Collateral Agent"), Foothill,
as administrative agent for the Lenders (in such capacity, together with any
successor administrative agent, the "Administrative Agent"; and together with
the Collateral Agent, each an "Agent" and collectively, the "Agents"), and
HIGHBRIDGE/XXXXX SPECIAL OPPORTUNITIES FUND, L.P., a Delaware limited
partnership ("Highbridge"), as lead arranger.
The Borrower and the Required Lenders desire to amend the Credit
Agreement as hereinafter set forth.
Accordingly, the Borrower and the Required Lenders hereby agree as
follows:
1. Definitions in Amendment. Any capitalized term used herein
and not defined shall have the meaning assigned to it in the Credit Agreement.
2. Defined Terms. (a) The definition of "Applicable LIBOR
Margin" in Section 1.01 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
" 'Applicable LIBOR Margin' means, as to each LIBOR Rate Loan, the
applicable margin set forth in the right side of the grid below:
A percentage equal to the average principal amount of Revolving A Loans
and Letter of Credit Obligations outstanding during any calendar month
over the Total Revolving A Credit Commitment Applicable LIBOR Margin
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Less than 50% 2.75 percentage points
Greater than or equal to 50% 3.0 percentage points"
(b) The definition of "Applicable Reference Rate Margin" in
Section 1.01 of the
Credit Agreement is hereby amended and restated to read in
its entirety as follows:
" 'Applicable Reference Rate Margin' means, as to each Reference Rate
Loan, the applicable margin set forth in the right side of the grid below:
A percentage equal to the average principal amount of Revolving A Loans and
Letter of Credit Obligations outstanding during any calendar month
over the Total Revolving A Credit Commitment Applicable Reference Rate Margin
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Less than 50% 0.50 percentage points
Greater than or equal to 50% 0.75 percentage points"
3. Reporting Requirements. Clause (vii) of Section 7.01(a) of
the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"(vii) as soon as available and in any event within 30 days after the
end of each fiscal quarter of the Borrower ending after the Effective Date, a
report setting forth, in form reasonably acceptable to the Agents, the
calculation of the PV-10 of the Proved Reserves composing the Borrowing Base and
the Revolver A Borrowing Base as determined by the Reserve Report most recently
delivered by the Borrower under Section 7.01(a)(vi), such calculation to be made
by multiplying (x) the volumetric quantity of the categories of estimated Proved
Reserves set forth in such Reserve Report less such aggregate projected
production of Proved Reserves since the date of and as provided in such Reserve
Report by (y) the applicable NYMEX Strip Price as of the last Business Day of
the month preceding the date of the delivery by the Borrower of such report to
the Agents; each such report shall (A) also include a discussion of (I) any
material changes since the date of such Reserve Report in the categorization of
any Oil and Gas Properties among Proved Developed Producing Reserves, Proved
Developed Non-Producing Reserves, Proved Undeveloped Reserves and "other", (II)
any changes in the working interest or net revenue interest in the Oil and Gas
Properties of the Borrower and its Subsidiaries reflected on such Reserve
Report, (III) production delivered during such fiscal quarter and remaining
production to be delivered under the Production Payment 2001 Facility and the
Takeout VPP Facility, and (IV) such other information as the Agents shall
reasonably consider appropriate or necessary from the perspective of an
asset-based lender; and (B) be accompanied by a certificate of an Authorized
Officer of the Borrower certifying to the completeness and accuracy of the
report, including the calculation of the PV-10 of Proved Reserves comprising the
Borrowing Base and the Revolver A Borrowing Base; provided that the Required
Lenders in their sole discretion may require the Borrower to cause the report
required to be delivered pursuant to this clause (vii) to be delivered within 30
days after the end of each month, at the Borrower's expense, if (xx) the NYMEX
Strip Price on the last Business Day of any month is less than $19.80 per barrel
of oil or $3.89 per MmBTU of natural gas, (yy) Availability is less than (x)
$17,000,000 at any time during the period from October 1, 2003 through November
30, 2003, or (y) $18,700,000 at any time on and after December 1, 2003, or (zz)
an Event of Default has occurred and is continuing;"
4. Negative Covenants. Section 7.02(g) of the
Credit Agreement
is hereby amended and restated in its entirety to read as follows:
"(g) Capital Expenditures. (i) Make or commit or agree to make, or
permit any of its Subsidiaries to make or commit or agree to make, any Capital
Expenditure (by purchase or Capitalized Lease) that would cause the aggregate
amount of all Capital Expenditures made by the Loan Parties and their
Subsidiaries to exceed (A) $75,000,000 in the Borrower's Fiscal Year ending
December 31, 2003 (the "2003 CapEx Limit"); provided, however, that as of
December 1, 2003 the 2003 CapEx Limit may equal $80,000,000 so long as
Availability is not less than $20,000,000 at any time during the period from
December 1, 2003 through December 31, 2003, (B) $75,000,000 in the Borrower's
Fiscal Year ending December 31, 2004 and (C) $86,000,000 in any Fiscal Year
thereafter, or (ii) make aggregate Capital Expenditures during any fiscal
quarter of the Borrower that exceed an amount equal to 50% of the applicable
annual amount set forth in clause (i) above; provided that at any time that the
Borrower has Revolver A Availability of less than $5,000,000, Borrower shall be
prohibited from making any Capital Expenditure without the written approval of
the Administrative Agent."
5. Conditions Precedent.This Amendment shall become effective
only upon satisfaction in full of the following conditions precedent (the first
date upon which all such conditions have been satisfied being herein called the
"Amendment Effective Date"):
(a) The representations and warranties contained in Article VI
of the
Credit Agreement and each other Loan Document shall be correct on and as
of the Amendment Effective Date as though made on and as of such date (except
where such representations and warranties relate to an earlier date in which
case such representations and warranties shall be true and correct as of such
earlier date); and no Event of Default shall have occurred and be continuing on
the Amendment Effective Date or result from this Amendment becoming effective in
accordance with its terms.
(b) The Administrative Agent shall have received counterparts
of this Amendment which bear the signatures of the Borrower and the Required
Lenders.
6. Continued Effectiveness of Credit Agreement. The Borrower
hereby (i) confirms and agrees that each Loan Document to which it is a party
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that on and after the date hereof all
references in any such Loan Document to "the Credit Agreement", "thereto",
"thereof", "thereunder" or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment, and (ii)
confirms and agrees that to the extent that any such Loan Document purports to
assign or pledge to the Collateral Agent, or to grant to the Collateral Agent a
security interest in or lien on, any collateral as security for the Obligations
of the Borrower from time to time existing in respect of the Credit Agreement
and the Loan Documents, such pledge, assignment and/or grant of the security
interest or lien is hereby ratified and confirmed in all respects.
7. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by telecopy shall be equally as effective as delivery of an
original executed counterpart of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of
New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
KCS ENERGY, INC.
By: /s/ X X Xxxxx
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Name: X.X. Xxxxx
Title: VP and CFO
XXXXX FARGO FOOTHILL, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title Vice President
HIGHBRIDGE/XXXXX SPECIAL OPPORTUNITIES FUND, L.P.
By: Highbridge/Xxxxx Capital Management, LLC
By: /s/ Xxxxxx X. Zwen
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Name: Xxxxxx X. Zwen
Title: Managing Principal
ABLECO FINANCE LLC
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Sr. Vice President