EXHIBIT 10
CONSENT LETTER AND FORM OF FOURTH AMENDMENT
TO FIRST RESTATED CREDIT AGREEMENT
As of November 30, 1998
Denbury Resources, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Denbury Management, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: First Restated Credit Agreement dated December 29, 1997 by and among
Denbury Management, Inc. as Borrower, Denbury Resources, Inc. as
Guarantor, NationsBank of Texas, N.A., predecessor by merger to
NationsBank, N.A., as Administrative Agent and the financial
institutions parties thereto as Banks, as amended by (a) a First
Amendment to First Restated Credit Agreement dated as of January 27,
1998, (b) a Second Amendment to First Restated Credit Agreement dated
as of February 25, 1998, and (c) a Third Amendment to First Restated
Credit Agreement dated as of August 10, 1998 (as so amended, the
"Credit Agreement"); unless otherwise defined herein, all terms used
herein with their initial letter capitalized shall have the meanings
assigned to such terms in the Credit Agreement.
Gentlemen:
1. Emigration Transactions. You have advised the Banks that the Credit
Parties propose to take the following actions:
a. Domestication. Parent will change its domicile from Canada to Delaware
by means of a domestication (the "Domestication") under Section 388 of the
Delaware General Corporation Law, and simultaneously therewith Parent will apply
for a Certificate of Discontinuance under Section 188(7) of the Canadian
Business Corporation Act. Pursuant to the Domestication, Parent's corporate
existence will be continued in the State of Delaware, and Parent will remain
liable for all of its obligations under the Credit Agreement, the Facility
Guaranty, the Parent Pledge Agreement and each of the other Loan Papers; and
b. Borrower Merger. Immediately following the Domestication, Borrower will
merge with and into Parent with Parent being the surviving corporation (the
"Borrower Merger") and pursuant to the Borrower Merger, the outstanding capital
stock of Borrower (the "Borrower Stock") will be canceled.
The Domestication and the Borrower Merger are collectively referred to
herein as the "Emigration Transactions").
2. Restrictions in Credit Agreement; Request for Consent and Waiver and
Release of Stock Pledge. The Emigration Transactions are prohibited pursuant to
certain provisions of the Credit Agreement, including Section 9.4 thereof and
constitute an Event of Default under Section 11.1(k) of the Credit Agreement.
The Credit Parties have requested that the Banks consent to the Emigration
Transactions and waive Sections 9.4 and 11.1(k) of the Credit Agreement and any
other provisions of the Credit Agreement and the other Loan Papers to the extent
that the Emigration Transactions violate such provisions or result in a Default
or Event of Default under the Credit Agreement or the other Loan Papers. The
Credit Parties have further requested that simultaneously with the Borrower
Merger, Administrative Agent release the Borrower Stock from the Lien of the
Parent Pledge Agreement.
3. Consent and Waiver; Agreement to Release Stock Pledge. Subject to and
upon the terms and conditions set forth herein, and in reliance on the
representations and warranties set forth herein, (a) the Banks (i) consent to
the consummation by the Credit Parties of the Emigration Transactions and waive
compliance by the Credit Parties with each provision of the Credit Agreement and
the other Loan Papers to the extent, but only to the extent, that the Emigration
Transactions violate such provisions or result in a Default or Event of Default
under the Credit Agreement or the other Loan Papers, and (ii) authorize and
instruct Administrative Agent to release the Borrower Stock from the Lien of the
Parent Pledge Agreement simultaneously with Borrower Merger, and (b)
Administrative Agent hereby agrees to release the Borrower Stock from the Parent
Pledge Agreement as provided in clause (a)(ii) of this Section 3.
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4. Certain Terms and Conditions. The consent and waiver herein granted are
subject to each of the following terms and conditions:
a. Execution of Amendment to Credit Agreement and Loan Papers. Immediately
following the Borrower Merger, Parent, Administrative Agent and Banks shall
enter into a Fourth Amendment to First Restated Credit Agreement (the "Fourth
Amendment") substantially in the form of Exhibit A hereto pursuant to which (i)
Parent will confirm its assumption of all liabilities and obligations of
Borrower under the Credit Agreement and the other Loan Papers, and (ii) the
Credit Agreement will be amended to reflect the consummation of the Emigration
Transactions.
b. Delivery of Certain Documents. Immediately following the Borrower
Merger, Parent shall deliver or cause to be delivered to Administrative Agent
each of the following documents, instruments and agreements:
(i) A Certificate of ▇▇▇▇▇▇ issued by the Secretary of State of
Delaware evidencing the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(ii) a copy of the Certificate of Incorporation and all amendments
thereto of Parent accompanied by a certificate that such copy
is true, correct and complete, and dated within ten (10) days
of the closing of the Borrower ▇▇▇▇▇▇, issued by the Secretary
of State of Delaware and accompanied by a certificate of the
Secretary or an Assistant Secretary of Parent that such copy is
true, correct and complete on the date of the Borrower Merger.
(iii) a copy of the Bylaws and all amendments thereto, of Parent
accompanied by a certificate of the Secretary or an Assistant
Secretary of Parent that such copy is true, correct and
complete as of the date of the Borrower Merger.
(iv) certificates and other documents issued by the appropriate
Governmental Authorities of such jurisdictions as
Administrative Agent has requested relating to the
Domestication and to the effect that Borrower is in good
standing with respect to the payment of franchise and similar
Taxes and is duly qualified to transact business in such
jurisdictions;
(v) a certificate of incumbency of all officers of Parent who will
be authorized to execute or attest to the Fourth Amendment and
any other Loan Paper, dated the date of the Borrower ▇▇▇▇▇▇,
executed by the Secretary or an Assistant Secretary of Parent;
(vi) copies of resolutions approving the Fourth Amendment and
authorizing the transactions contemplated by the Fourth
Amendment and the other Loan Papers, duly adopted by the Board
of Directors of Parent accompanied by certificates of the
Secretary or an Assistant Secretary of Parent that such copies
are true and correct copies of resolutions duly adopted at a
meeting of or (if permitted by applicable Law and, if required
by such Law, by the Bylaws) by the unanimous written consent of
the Board of Directors of Parent, and that such resolutions
constitute all the resolutions adopted with respect to such
transactions, have not been amended, modified or revoked in any
respect, and are in full force and effect as of the date
hereof;
(vii) an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C., special counsel for
Parent dated the date of the Borrower Merger, favorably opining
as to the enforceability with respect to
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Parent of the Fourth Amendment, the Credit Agreement as amended
by the Fourth Amendment and each of the other Loan Papers with
respect to Parent and otherwise in form and substance
satisfactory to Administrative Agent; and
(viii) UCC-3 Amendments duly executed by Parent with respect to each
UCC Financing Statement filed or recorded with respect to the
Existing Mortgages which UCC-3 Amendment will reflect the
change of the debtor's name in each such Financing Statement
from "Denbury Management, Inc." to "Denbury Resources, Inc."
5. Representations and Warranties. To induce ▇▇▇▇▇ to grant the consents
and waivers herein contained, the Credit Parties hereby jointly and severally
represent and warrant to each Bank as follows:
a. Emigration Transactions. (i) to the extent Parent and Borrower
consummate the Emigration Transactions, the Emigration Transactions (A) will be
consummated substantially as described in paragraph 1 hereof and in accordance
with all applicable Laws and the articles or certificate of incorporation,
bylaws and other charter documents of Borrower and Parent, and (B) do not and
will not result in a breach or violation of any material contract, agreement,
indenture, mortgage or other instrument to which any Credit Party is a party,
and do not, and will not result in the imposition of any Lien on any of the
properties of any Credit Party or the acceleration of any Debt of any Credit
Party; (ii) after giving effect to the Emigration Transactions, Parent will
succeed to, and hold good and defensible title to, all assets of Borrower and
Parent subject to no Liens other than Permitted Encumbrances;
b. Reaffirmation of Representations and Warranties. Each representation and
warranty of each Credit Party contained in the Credit Agreement is true and
correct in all material respects on the date hereof and will be true and correct
in all material respects after giving effect to the Emigration Transactions
(including the execution, delivery and effectiveness of the Fourth Amendment);
c. Absence of Defaults. No Default or Event of Default has occurred which
is continuing, and after giving effect to the waivers and consents herein
contained and the execution, delivery and effectiveness of the Fourth Amendment,
no Default or Event of Default will exist after giving effect to the Emigration
Transactions; and
d. Absence of Defenses. No Credit Party has any counterclaim, right of
offset or defense to payment and performance of the Obligations.
6. Miscellaneous.
a. Limitations on Consents and Waivers. The consents and waivers herein
contained are limited solely to the Emigration Transactions. Nothing contained
herein shall be deemed a consent to any other action or inaction of any Credit
Party which constitutes a violation of any provision of the Credit Agreement or
any other Loan Party or which results in a Default or Event of Default under the
Credit Agreement or any other Loan Paper. No Bank nor Administrative Agent shall
be obligated to grant any future waivers or amendment of the Credit Agreement or
any other Loan Paper.
b. Loan Paper. This letter agreement constitutes a "Loan Paper" under and
as defined in the Credit Agreement.
c. Effectiveness; Counterparts. This letter agreement will be effective
when a counterpart hereof has been executed by ▇▇▇▇▇▇▇▇, Parent and each Bank.
It is not necessary that all signatures appear on the same counterparts. Each
counterpart will constitute one and the same instrument. Facsimiles shall be
effective as originals.
Please evidence your agreement to each of the provisions of this letter
agreement by executing a counterpart hereof where indicated below and returning
a fully executed counterpart to Administrative Agent.
Very truly yours,
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NationsBank, N.A.
By:
Name:
Title:
BankBoston, N.A.
By:
Name:
Title:
Bank One, Texas, N.A.
By:
Name:
Title:
Chase Bank of Texas, National Association
By:
Name:
Title:
Christianaia Bank, Og Kreditkasse ASA
By:
Name:
Title:
Banque Paribas
By:
Name:
Title:
Credit Lyonnais - New York Branch
By:
Name:
Title:
▇▇▇▇▇ Fargo Bank (Texas), N.A.
By:
Name:
Title:
Natexis Banque BFCE
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By:
Name:
Title:
Acknowledged and ▇▇▇▇▇▇
as of the __ day of November, 1998
Denbury Management, Inc.
By:
Its:
Denbury Resources, Inc.
By:
Its:
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EXHIBIT A
FOURTH AMENDMENT TO FIRST RESTATED CREDIT AGREEMENT
This Fourth Amendment to First Restated Credit Agreement (this "Fourth
Amendment") is entered into as of the ___ day of ________, 199___ (the
"Effective Date"), by and among Denbury Resources, Inc. ("DRI"), a corporation
previously incorporated under the Canadian Business Corporation Act which has
been domesticated in the State of Delaware and which is the successor by merger
to Denbury Management, Inc. ("Management"), a Texas corporation, NationsBank,
N.A., [revise name of NationsBank to Bank of America if applicable] successor by
merger to NationsBank of Texas, N.A., as Administrative Agent ("Agent"), and the
financial institutions parties hereto as Banks ("Banks").
W I T N E S S E T H:
WHEREAS, Management, DRI, Agent and Banks are parties to that certain
First Restated Credit Agreement dated as of December 29, 1997, as amended by (a)
that certain First Amendment to First Restated Credit Agreement dated as of
January 27, 1998, (b) that certain Second Amendment to First Restated Credit
Agreement dated as of February 25, 1998, and (c) that certain Third Amendment to
First Restated Credit Agreement dated as of August 10, 1998 (as amended, "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 Management; and
WHEREAS, DRI was formerly incorporated under the Canadian Business
Corporation Act and was domesticated in the State of Delaware; and
WHEREAS, Management merged with and into DRI with DRI being the surviving
corporation (such merger is referred to herein as the "Merger"); and
WHEREAS, as a result of the Merger, DRI assumed and is primarily liable for
all of the debts, obligations and liabilities of Management under the Credit
Agreement and the other Loan Papers and DRI become the "Borrower" under and as
defined in the Credit Agreement and the other Loan Papers; and
WHEREAS, the parties desire to (a) evidence in writing the assumption by
DRI of the debts, obligations and liabilities of Management under the Credit
Agreement and the other Loan Papers, and (b) make certain conforming amendments
to the Credit Agreement.
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, DRI,
Agent and each Bank hereby agree as follows:
Section 1. Assumption. ▇▇▇ acknowledges and agrees that as a result of the
Merger DRI has assumed and is directly and primarily liable for the due and
punctual payment and performance in full of the Obligations. DRI represents and
warrants that it has no counterclaim, right of set off or other defense to
payment or performance of such Obligations.
Section 2. Amendments. The Credit Agreement is hereby amended effective as
of the Effective Date in the manner provided in this Section 2.
2.1 Additional Definitions. Section 1.1 of the Credit Agreement is
amended to add thereto in alphabetical order the definitions of "Merger" and
"Fourth Amendment" which shall read in full as follows:
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"Merger" means the merger of Denbury Management, Inc. into Borrower,
in each case with Borrower being the surviving corporation.
"Fourth Amendment" means that certain Fourth Amendment to First
Restated Credit Agreement dated as of _________, 199__ among Borrower,
Administrative Agent and Banks.
2.2 Amendment to Definitions. The definitions of "Administrative Agent,"
"Borrower," "Consolidated Current Assets," "Consolidated Current Liabilities,"
"Credit Parties," "GAAP," "Loan Papers," "Parent," and "Required Consolidated
Tangible Net Worth" set forth in Section 1.1 of the Credit Agreement are amended
to read in full as follows:
"Administrative Agent" means NationsBank, N.A. [revise to reflect
name change to Bank of America, if applicable], successor by merger to
NationsBank of Texas, N.A., in its capacity as Administrative Agent for
Banks hereunder or any successor thereto.
"Borrower" means Denbury Resources, Inc., a corporation previously
incorporated under the Canadian Business Corporation Act and which was
domesticated in the State of Delaware, and which is the successor by
merger to Denbury Management, Inc., a Texas corporation.
"Consolidated Current Assets" means, for any Person at any time, the
current assets of such Person and its Consolidated Subsidiaries at such
time, plus, in the case of Borrower, the Availability at such time.
"Consolidated Current Liabilities" means, for any Person at any
time, the current liabilities of such Person and its Consolidated
Subsidiaries at such time, but, in the case of Borrower, excluding the
current portion (if any) of the outstanding principal balance of the
Revolving Loan.
"Credit Parties" means Borrower and any Subsidiary or Affiliate of
Borrower which Required Banks and Borrower may hereafter jointly
designate in writing as a "Credit Party" for purposes of this Agreement.
Unless and until any such designation is made, "Credit Party" and
"Credit Parties" shall refer only to Borrower.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the Securities and Exchange
Commission, the American Institute of Certified Public Accountants
acting through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards or
committees thereof and which are consistently applied for all periods
after the date hereof so as to properly reflect the financial condition,
and the results of operations and changes in financial position, of
Borrower and its Consolidated Subsidiaries, except that any accounting
principle or practice required to be changed by the said Accounting
Principles Board or Financial Accounting Standards Board (or other
appropriate board or committee thereof) in order to continue as a
generally accepted accounting principle or practice may be so changed.
"Loan Papers" means this Agreement, the Notes, the Existing
Mortgages (as amended by the Amendment to Mortgages), the First
Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment and all Mortgages now or at any time hereafter delivered
pursuant to Section 5.2, and all other certificates, documents or
instruments delivered in connection with this Agreement, as the
foregoing may be modified, amended, renewed, extended or restated from
time to time.
"Required Consolidated Tangible Net Worth" means, initially,
$100,000,000; provided, that, the Required Consolidated Tangible Net
Worth shall (a) increase (but not decrease) on each Quarterly Date after
July 1, 1998 by an amount equal to fifty percent (50%) of Borrower's
Consolidated Net Income for the Fiscal Quarter then ended, and (b)
increase
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on the date of any issuance by Borrower of its equity securities after
July 1, 1998, by an amount equal to fifty percent (50%) of the net
proceeds received by Borrower from the issuance of such securities.
2.3 Deletion of Definitions. Section 1.1 of the Credit Agreement shall
be amended to delete therefrom in their entirety the definitions of "Facility
Guaranty" and "Parent Pledge Agreement."
2.4 Amendments to Certain Interpretive Provisions. Section 1.2 of the
Credit Agreement shall be amended to read in full as follows:
"SECTION 1.2Accounting Terms and Definitions. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be expressed in U.S.
Dollars and shall be prepared in accordance with GAAP, applied on a
basis consistent with the most recent audited consolidated financial
statements of Borrower and its Consolidated Subsidiaries delivered to
Banks except for changes concurred in by ▇▇▇▇▇▇▇▇'s independent
certified public accountants and which are disclosed to Administrative
Agent on the next date on which financial statements are required to be
delivered to Banks pursuant to Sections 8.1(a) or (b); provided that,
unless Required Banks shall otherwise agree in writing, no such change
shall modify or affect the manner in which compliance with the covenants
contained in Article X are computed such that all such computations
shall be conducted utilizing financial information presented
consistently with prior periods."
2.5 Amendment to Collateral and Guarantee Requirements. Article V of the
Credit Agreement shall be amended to read in full as follows:
ARTICLE V
COLLATERAL AND GUARANTEES
SECTION 5.1 Existing Mortgages. The Obligations shall be secured by
the Existing Mortgages which create first and prior Liens (subject only
to Permitted Encumbrances) covering and encumbering the Mineral
Interests described therein. On or prior to the Closing Date, Borrower
shall enter into the Amendment to Existing Mortgages.
SECTION 5.2 Delivery of Mortgages Upon Borrowing Base Deficiency. If
a Borrowing Base Deficiency exists at any time after July 1, 1998,
▇▇▇▇▇▇▇▇ shall immediately execute and deliver Mortgages to
Administrative Agent, for the ratable benefit of each Bank, in form and
substance acceptable to Administrative Agent to grant, evidence and
perfect first and prior Liens securing the Obligations, covering
substantially all Mineral Interests owned by Borrower subject only to
Permitted Encumbrances.
SECTION 5.3 Evidence of Title; Opinions. At any time Borrower is
required to execute and deliver Mortgages to Administrative Agent
pursuant to this Section 5.2, Borrower shall also deliver to
Administrative Agent such opinions of counsel (addressed to
Administrative Agent) and other evidence of title as Administrative
Agent shall deem necessary or appropriate to verify (a) Borrower's title
to Proved Mineral Interests with a Recognized Value equal to at least
85% of the Recognized Value of all Proved Mineral Interests reflected in
the Reserve Report which are subject to such Mortgages, and (b) the
validity, perfection and priority of the Liens created by such
Mortgages.
2.6 Financial Representation and Warranty. Section 7.5 of the Credit
Agreement is amended to delete the words "Parent" and "Parent's" each time such
words appear therein and substitute in lieu thereof the words "Borrower" and
"Borrower's."
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2.7 Organization Structure; Nature of Business Representation and
Warranty. Section 7.14 of the Credit Agreement is amended to delete the first
two (2) sentences thereof in their entirety.
2.8 Fiscal Year Representation and Warranty. Section 7.17 of the Credit
Agreement is amended to delete the word "Parent's" where it appears therein, and
substitute in lieu thereof "Borrower's."
2.9 Financial Information Covenant. Section 8.1 of the Credit Agreement
is amended to delete the words "Parent" and "Parent's" each time they appear
therein and to substitute in lieu thereof the words "Borrower" and "Borrower's."
2.10 Business of the Credit Parties Covenant. Section 8.2 of the Credit
Agreement is amended to delete the first sentence thereof in its entirety.
2.11 Maintenance of Existing Covenant. Section 8.3 of the Credit
Agreement is amended to delete the phrase "Each of Parent and" which are the
first four words of such covenant.
2.12 Title Data Representation and Warranty. Section 8.4 of the Credit
Agreement is hereby amended to read in full as follows:
"SECTION 8.4 Title Data. In addition to the title information
required by Sections 5.3 and 6.1(c) hereof, Borrower shall, upon the
request of Required Banks, cause to be delivered to Administrative Agent
such title, opinions and other information regarding title to Mineral
Interests owned by Borrower as are appropriate to determine the status
thereof; provided, however, that the Banks may not require the Credit
Parties to furnish title opinions (except pursuant to Section 5.3 and
6.1(c)) unless (a) an Event of Default shall have occurred and be
continuing, or (b) the Required Banks have reason to believe that there
is a defect in or encumbrance upon ▇▇▇▇▇▇▇▇'s title to such Mineral
Interests that is not a Permitted Encumbrance."
2.13 Maintenance of Insurance Covenant. Section 8.6 of the Credit
Agreement is amended to delete the phrase "and Parent" in the third sentence
thereof and delete the word "assign" in such sentence and substitute in lieu of
the word "assign" the word "assigns."
2.14 Merger Covenant. Section 9.4 of the Credit Agreement is amended to
read in full as follows:
"SECTION 9.4 Consolidations and Mergers. The Credit Parties will
not, nor will the Credit Parties permit any of their Subsidiaries to,
consolidate or merge with or into any other Person; provided, that so
long as no Default exists or will result any wholly owned Subsidiary of
Borrower may merge or consolidate with any other Person so long as a
wholly owned Subsidiary of Borrower is the surviving corporation."
2.15 Fiscal Year Covenant. Section 9.12 of the Credit Agreement is
amended to delete the word "Parent" where it appears therein and substitute in
lieu thereof, the word "Borrower."
2.16 Financial Covenants. Article X of the Credit Agreement is amended
to delete the words "Parent" and "Parent's" each time such words appear therein
and to substitute in lieu thereof, the words "Borrower" and "Borrower's."
2.17 Change of Control Default. Section 11.1(k) of the Credit Agreement
is amended to read in full as follows:
"(k) as of any date any Person or group (as defined in Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934) other than
the Texas Pacific Group shall become the direct or indirect beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934) of more than 30% of the total voting power of all classes of
capital
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stock then outstanding of Borrower entitled (without regard to the
occurrence of any contingency) to vote in elections of directors of
Borrower."
2.18 Miscellaneous Provisions. Article XIV of the Credit Agreement is
hereby amended to delete the word "Parent's" and the phrases "Parent and" and
"Parent or" each time such words and such phrases appear in such Article.
Section 3. Representations and Warranties of Borrower. To induce the
Banks and Administrative Agent to enter into this Fourth Amendment, DRI hereby
represents and warrants to Banks and Administrative Agent as follows:
3.1 Confirmation of Representations and Warranties. After giving effect
to the Amendments contained in Section 2 hereof, each representation and
warranty of Borrower contained in the Credit Agreement and the other Loan Papers
is true and correct on the date hereof.
3.2 Corporate Power; Due Authorization; No Conflicts. The execution,
delivery and performance by DRI of this Fourth Amendment are within DRI's
corporate powers, have been duly authorized by necessary action, require no
action by or in respect 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 DRI or any Subsidiary of
DRI or result in the creation or imposition of any Lien upon any of the assets
of DRI or any of the Subsidiaries of DRI except Permitted Encumbrances.
3.3 Validity of Binding Effect. This Fourth Amendment constitutes the
valid and binding obligations of DRI enforceable in accordance with its terms,
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditor's rights generally, and (b) the
availability of equitable remedies may be limited by equitable principles of
general application.
3.4 No Defenses. DRI has no defenses to payment, counterclaim or rights
of set-off with respect to the Obligations existing on the date hereof.
3.5 Merger. The domestication of DRI in Delaware and the Merger were
consummated (a) substantially in accordance with the descriptions thereof set
forth in that certain Consent Letter dated November 30, 1998, by and among
Denbury Management, Inc., Parent and Banks, and (b) in accordance with all
applicable Laws and the Articles or Certificate of Incorporation, bylaws and
other charter documents of DRI and Management. The domestication of DRI in
Delaware and the Merger did not, and do not, result in a breach or violation of
any material contract, agreement, indenture, mortgage or other instrument to
which DRI, Management is or was a party and did not and will not result in the
imposition of any Lien on any of the properties or assets of DRI or Management
or a default under or the acceleration of any Debt of DRI, Management; as a
result of the domestication of DRI in Delaware and the Merger, DRI has succeeded
to, and holds good and defensible title, to all assets of Management, subject to
no Liens other than Permitted Encumbrances.
Section 4. Miscellaneous.
4.1 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. DRI hereby
extends the Liens securing the Obligations until the Obligations have been paid
in full or are specifically released by Agent and Banks prior thereto, and agree
that the amendments and modifications herein contained shall in no manner
adversely affect or impair the Obligations or the Liens securing payment and
performance thereof.
4.2 Parties in Interest. All of the terms and provisions of this Fourth
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
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4.3 Legal Expenses. DRI ▇▇▇▇▇▇ 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
Fourth Amendment and all related documents.
4.4 Counterparts. This Fourth Amendment may be executed in counterparts,
and all parties need not execute the same counterpart; however, no party shall
be bound by this Fourth Amendment until all parties have executed a counterpart.
Facsimiles shall be effective as originals.
4.5 Complete Agreement. THIS FOURTH 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.
4.6 Headings. The headings, captions and arrangements used in this
Fourth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Fourth 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:
DENBURY RESOURCES INC.
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Present and Chief Executive Officer
By:
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▇▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer and
Secretary
ADMINISTRATIVE AGENT:
NATIONSBANK, N.A., successor by merger to
NationsBank of Texas, N.A.
By:
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▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
BANKS:
NATIONSBANK, N.A., successor by merger to
-11-
NationsBank of Texas, N.A.
By:
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▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
BANKBOSTON, N.A.
By:
Name:
Title:
BANK ONE, TEXAS, N.A.
By:
Name:
Title:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
By:
Name:
Title:
CHRISTIANAIA BANK, OG KREDITKASSE ASA
By:
Name:
Title:
BANK PARIBAS
By:
Name:
Title:
CREDIT LYONNAIS - NEW YORK BRANCH
By:
Name:
Title:
-12-
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
By:
Name:
Title:
NATEXIS BANQUE BFCE
By:
Name:
Title:
-13-
