THIRD AMENDMENT TO FIFTH RESTATED CREDIT AGREEMENT
This Third Amendment to Fifth Restated Credit Agreement
(this"Third Amendment") is entered into as of the 1st day of
November,1995, by and among Xxxxxx Oil Corporation ("Borrower"),
NationsBank of Texas, N.A., as Agent ("Agent"), and NationsBank of
Texas, N.A.,Bank One, Texas, N.A., Xxxxx Fargo Bank, N.A. and Texas
Commerce Bank National Association as Banks (the "Banks").
W I T N E S E T H:
WHEREAS, Borrower, Agent and the Banks are parties to
thatcertain Fifth Restated Credit Agreement dated as of June 30,
1994, as amended by that certain (i) letter agreement by and among
Borrower and the Banks dated as of May 1, 1995, and (ii) Second
Amendment to Fifth Restated Credit Agreement by and among Borrower,
Agent and the Banks dated as of June 30, 1995 (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 (i) certain provisions of
the Credit Agreement, including, without limitation, Sections 9.5 and
10.4 and related definitions be amended in certain respects, (ii) the
amount of the Total Borrowing Base and the amounts of the Facility A
Borrowing Base and the Facility B Borrowing Base for the period
commencing November 1, 1995 and continuing until the next succeeding
Determination Date be set forth herein, and (iii) the Banks extend
the Facility B Termination Date to October 29, 1996; and
WHEREAS, subject to the terms and conditions herein contained,
the 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, Agent and each Bank 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 Third Amendment, the Credit Agreement shall be amended
effective November 1, 1995 (the "Effective Date") in the manner
provided in this Section 1.
1.1. Amendment to Definitions. The definition of "Loan Papers"
contained in Section 1.1 of the Credit Agreement shall be amended to
read in full as follows:
"Loan Papers" means this Agreement, the Letter Agreement, the
Second Amendment, the Third 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 definitions to such
Section:
"Giddings Properties" means those certain oil and gas properties
owned by Borrower located in the Austin-Chalk trend of Texas
and Louisiana, and primarily located in Brazos, Burleson,
Fayette, Grimes, Lee, Xxxxxx and Washington Counties, Texas,
and including those properties described in the most recent
Reserve Report delivered to the Banks as of November 1, 1995,
as being in the "GID" area.
"Rockies Properties" means those certain oil and gas properties
owned by Borrower located in (a) the Piceance basin in the
State of Colorado, and including those properties described in
the most recent Reserve Report delivered to the Banks as
of November 1, 1995 as being in the "PIC" area, (b) the East
Washakie area of the State of Wyoming, and including those
properties described in the most recent Reserve Report
delivered to the Banks as of November 1, 1995 as being in the
"BSU," "NSD," "BLG," and "BBT" areas, and (c) the Deep Green
River area of the State of Wyoming, and including those
properties described in the most recent Reserve Report
delivered to the Banks as of November 1, 1995 as being in the
"LEF" area.
"Third Amendment" means that certain Third Amendment to Fifth
Restated Credit Agreement dated as of November 1, 1995, by and
among Borrower, Agent and the Banks.
1.3. Asset Dispositions. Section 9.5 of the Credit Agreement
shall be amended to read in full as follows:
SECTION 9.5. Asset Dispositions. Except as herein provided,
neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P.
shall sell, lease, abandon or otherwise transfer any of its assets to
any other Person other than pursuant to an Exempt Transfer.
Borrower, the Restricted Subsidiaries and DJ Partners, L.P. shall be
permitted to sell or otherwise dispose of any asset other than (a)
oil and gas properties, (b) Related Assets, (c) debt and equity
securities issued by any Restricted Subsidiary, and (d) Other
Borrowing Base Property. Borrower, the Restricted Subsidiaries and
DJ Partners, L.P. may sell oil and gas assets, Related Assets and
Other Borrowing Base Property; provided, that the aggregate value of
all oil and gas properties, Related Assets and Other Borrowing Base
Property sold by Borrower, the Restricted Subsidiaries and DJ
Partners, L.P. in transactions which are not Exempt Transfers during
any period between Periodic Determinations commencing with the
period between the Periodic Determinations scheduled to occur on
or around November 1, 1995, and May 1, 1996 shall not exceed the
sum of (i) the greater of (A) $10,000,000, or (B) five percent
(5%) of the Recognized Value of all oil and gas properties and
Related Assets held by Borrower and the Restricted Subsidiaries
as reflected on the most recent Reserve Report and Related Asset
Report delivered to the Banks prior to the commencement of such
period, plus (ii) the Recognized Value of all proved, developed,
producing oil and gas reserves acquired by Borrower and the
Restricted Subsidiaries during such period; provided, further,
that during the period between the Periodic Determination
scheduled to occur on or around November 1, 1995 and the Periodic
Determination scheduled to occur on or around May 1,1996, Borrower,
the Restricted Subsidiaries and DJ Partners, L.P. may sell (in
addition to the assets permitted to be sold pursuant to the preceding
proviso) (i) Borrower's interest in the Giddings Properties, and (ii)
up to twenty five percent (25%) of the interests owned by Borrower in
any or all of the Rockies Properties. The Recognized Value of all
proved, developed, producing reserves acquired by Borrower during any
period between Periodic Determinations shall be determined by
Borrower; provided that such value shall be subject to verification
and adjustment by Required Banks if the value asserted by Borrower
exceeds $5,000,000. For purposes of determining compliance with this
Section 9.5, the value of oil and gas properties, Related Assets and
Other Borrowing Base Property sold for cash shall be the sales price
of the properties sold. The value of oil and gas properties sold for
consideration other than cash shall be the amount which should be
reflected on Borrower's books in accordance with GAAP as "proceeds
from the sale of properties." Farmouts of undeveloped properties
shall not be considered sales or dispositions for purposes of this
Section 9.5 until the farmee earns a right to an assignment of the
underlying property.
1.4. Adjusted Consolidated Cash Flow Coverage of Borrower.
Section 10.4 of the Credit Agreement shall be amended to read in full
as follows:
SECTION 10.4. Adjusted Consolidated Cash Flow Coverage of
Borrower. If as of March 31, 1995, June 30, 1995, September 30,
1995, December 31, 1995 or March 31, 1996, Borrower's Adjusted
Consolidated Cash Flow for (a) the fiscal quarter then ending,is less
than four percent (4%) of Borrower's Consolidated Total Covered Debt
as of such date exclusive of such portion of Consolidated Total
Covered Debt with respect to which Exempt Subsidiaries are the only
obligors, or (b) any period of four (4) fiscal quarters then ending
is less than nineteen percent (19%) of Borrower's Consolidated Total
Covered Debt as of such date exclusive of such portion of
Consolidated Total Covered Debt with respect to which Exempt
Subsidiaries are the only obligors, then, in either event, Borrower
will, prior to the expiration of the applicable Special Cash Flow
Cure Period, reduce the principal balance of the Loans to an amount
which would cause Borrower's Adjusted Consolidated Cash Flow for such
quarter and period of four (4) fiscal quarters to exceed the
percentages set forth herein of Borrower's Consolidated Total Covered
Debt as so reduced. If, as of the end of any fiscal quarter ending
on or after June 30, 1996, the aggregate Adjusted Consolidated Cash
Flow of Borrower for (y) the fiscal quarter then ended is less than
five percent (5%) of Borrower's Consolidated Total Covered Debt as of
the end of such fiscal quarter exclusive of such portion of
Consolidated Total Covered Debt with respect to which Exempt
Subsidiaries are the only obligors, or (z) the four (4) fiscal
quarters then ended is less than twenty five percent (25%) of
Borrower's Consolidated Total Covered Debt as of the end of such
fiscal quarter exclusive of such portion of Consolidated Total
Covered Debt with respect to which Exempt Subsidiaries are the only
obligors, then, in either event, Borrower will, prior to the
expiration of the applicable Special Cash Flow Cure Period, reduce
the principal balance of the outstanding Loans to an amount which
would cause Borrower's Adjusted Consolidated Cash Flow for such
quarter and period of four (4) fiscal quarters to exceed the
percentages set forth herein of Borrower's Consolidated Total Covered
Debt as so reduced.
SECTION 2. Borrowing Base. In accordance with Section 4.1
and 4.4 of the Credit Agreement, effective November 1, 1995, and
continuing until the earlier of (i) any sale of the Giddings
Properties or the Rockies Properties in accordance with Section 9.5
of the Credit Agreement, as amended by this Third Amendment
("Approved Sales"), or (ii) the next Determination Date, the Total
Borrowing Base shall be $225,000,000, allocated as follows:
$125,000,000 to the Facility A Borrowing Base, and $100,000,000 to
the Facility B Borrowing Base. Upon any Approved Sale of the
Giddings Properties, the Total Borrowing Base shall be reduced by
$12,500,000, which amount shall be fully allocated to the reduction
of the Facility A Borrowing Base. Upon any Approved Sale of the
Rockies Properties, the Total Borrowing Base shall be reduced by
$12,500,000 (assuming a twenty-five percent (25%) interest in each of
the Rockies Properties is sold, or such lesser amount as the Banks
shall approve if less than twenty-five percent (25%) of the interests
owned by Borrower in any or all of the Rockies Properties is sold),
which amount shall be fully allocated to the reduction of the
Facility A Borrowing Base. Upon any such Approved Sale, Borrower
shall immediately make a principal payment on the outstanding Loans
in an amount sufficient to eliminate any Borrowing Base Deficiency
resulting from such reduction in the Borrowing Base, and Borrower
will apply the net cash proceeds received from any Approved Sale to
the prepayment of the outstanding Loans.
SECTION 3. Extension of Facility B Termination Date.
Inaccordance with Section 2.9(b) of the Credit Agreement, Borrower
has requested that the Banks extend the Facility B Termination Date
from April 29, 1996 to October 29, 1996. The Facility B Termination
Date is hereby extended from April 29, 1996 to October 29, 1996. At
Borrower's request, the Banks hereby defer compliance with the
condition contained in Section 2.9(b) of the Credit Agreement that,
in connection with the extension of the Facility B Termination Date,
corresponding amendments be executed to each Mortgage required by
Section 5.1 of the Credit Agreement. In that regard, Borrower
acknowledges and agrees that (a) the Banks have not permanently
waived the mortgage amendment requirements of Section 2.9(b), but
have only agreed to defer compliance with such requirements, and (b)
within fifteen (15) days following request by Required Banks,
Borrower shall execute (and cause DJ Partners and the appropriate
Restricted Subsidiaries [as applicable] to execute) such amendments.
SECTION 4. Conditions Precedent to Effectiveness of Amendments.
The amendments to the Credit Agreement contained in Section 1 of this
Third Amendment shall be effective only upon the satisfaction of each
of the conditions set forth in this Section 4. If each condition set
forth in this Section 4 has not been satisfied by the Effective
Date,this Third Amendment and all obligations of the Banks and Agent
contained herein shall, at the option of Majority Banks, terminate.
4.1 Corporate Existence and Authority. Borrower shall have
delivered to Agent such resolutions, certificates and other documents
as Agent shall request relative to the authorization, execution and
delivery by Borrower of this Third Amendment.
4.2 Certificate Regarding Representations and Warranties.
Borrower shall have delivered to Agent a certificate of its vice
president of finance, chief financial officer or chief accounting
officer certifying that each representation and warranty contained in
(a) the Credit Agreement, (b) this Third Amendment, and (c) each of
the other Loan Papers is true and correct and will be true and
correct after giving effect to the amendments contained in Section 1
hereof.
SECTION 5. Representations and Warranties of Borrower. To
induce the Banks and Agent to enter into this Third Amendment,
Borrower hereby represents and warrants to Agent as follows:
(a) Each representation and warranty of Borrower 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.
(b) The execution, delivery and performance by Borrower of this
Third Amendment are within the Borrower'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 Borrower or the
Subsidiaries of Borrower or result in the creation or imposition of
any Lien upon any of the assets of Borrower or the Subsidiaries of
Borrower except Permitted Encumbrances.
(c) This Third 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 Loans 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 Third 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 Third Amendment and all related documents.
6.5 Counterparts. This Third Amendment may be executed in
counterparts, and all parties need not execute the same counterpart;
however, no party shall be bound by this Third Amendment until all
parties have executed a counterpart. Facsimiles shall be effective
as originals.
6.6 Complete Agreement. THIS THIRD 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 Third Amendment are, unless specified otherwise, for convenience
only and shall not be deemed to limit, amplify or modify the terms of
this Third Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Third
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:/s/ Xxxxx X. Xxxxxxxx
Its:Vice President
AGENT:
NATIONSBANK OF TEXAS, N.A.
By:/s/ X. Xxxxxx Xxxxxxx IV
-------------------------
Its:Senior Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By:/s/ X. Xxxxxx Markham IV
------------------------
Its:Senior Vice President
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:/s/ Xxxx Xxxxx
------------------------
Its:Vice President
BANK ONE, TEXAS, N.A.
By:\s\ Xxxx Xxxxxx
------------------------
Its:Vice President
XXXXX FARGO BANK, N.A.
By:/s/Xxxx Xxxxxxx
------------------------
Its:Vice President
