1
EXHIBIT 10.3
ELEVENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This Eleventh Amendment to Amended and Restated Credit
Agreement (this "Amendment") dated as of June 17, 1999 is among ▇▇▇▇▇▇▇▇ ENERGY,
INC., a Delaware corporation (the "Borrower"), the banks named on the signature
pages hereto (together with their respective successors and assigns in such
capacity, the "Banks"), BANKERS TRUST COMPANY, as agent for the Banks (together
with its successors and assigns in such capacity, the "Agent") and UNION BANK OF
CALIFORNIA, N.A., as co-agent for the Banks (together with its successors and
assigns in such capacity, the "Co-Agent").
PRELIMINARY STATEMENT
A. The Borrower and the Bank Group have entered into that
certain Amended and Restated Credit Agreement dated as of August 28, 1997 as
amended by that certain First Amendment to Amended and Restated Credit Agreement
dated as of December 30, 1997, that certain Second Amendment to Amended and
Restated Credit Agreement dated as of January 14, 1998, that certain Third
Amendment to Amended and Restated Credit Agreement dated as of February 26,
1998, that certain Fourth Amendment to Amended and Restated Credit Agreement
dated as of March 24, 1998, that certain Fifth Amendment to Amended and Restated
Credit Agreement dated as of June 30, 1998, that certain Sixth Amendment to
Amended and Restated Credit Agreement dated as of November 19, 1998, that
certain Seventh Amendment to Amended and Restated Credit Agreement dated as of
March 9, 1999, that certain Eighth Amendment to Amended and Restated Credit
Agreement dated as of March 31, 1999, that certain Ninth Amendment to Amended
and Restated Credit Agreement dated as of May 12, 1999 and that certain Tenth
Amendment to Amended and Restated Credit Agreement dated as of May 27, 1999 (as
so amended, the "Credit Agreement").
B. The Borrower and the Bank Group desire to further amend the
Credit Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties agree as follows:
Section 1. Definitions. Unless otherwise defined in this
Amendment, each capitalized term used in this Amendment has the meaning assigned
to such term in the Credit Agreement.
Section 2. Amendments. The Credit Agreement is hereby amended
as follows:
a. The second sentence of Section 2.04(a) of the Credit Agreement is
hereby amended in its entirety to read as follows:
"During the period from and after June 17, 1999 until the
Borrower Base is redetermined in accordance with this Section (or
otherwise automatically reduced under Section 2.04(g)) the amount of
the Borrowing Base shall be $26,937,529."
2
b. Section 2.07(b) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) On each of the dates set forth below (each a "Scheduled
Loan Paydown Date") the Borrower shall repay the Loans comprising part
of the same Borrowing in whole or ratably in part in an amount equal to
the "Scheduled Paydown Amount" set forth opposite such Scheduled Loan
Paydown Date:
Scheduled Loan Scheduled
Paydown Date Paydown Amount
------------ --------------
August 10, 1999 $2,687,529
August 15, 1999 $2,500,000
August 31, 1999 $750,000
c. The date of "June 30, 1999" set forth in Section 4.17(b) of the
Credit Agreement is hereby amended to read "August 31, 1999."
d. Section 6.02(l) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"and (l) Liens described on Schedule 6.02 securing the
Indebtedness described on Schedule 6.02 so long as such Liens have been
released and/or extinguished on or before August 10, 1999;"
e. Section 6.07 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Section 6.07. Sales of Properties. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, assign,
farm-out, lease or otherwise transfer or dispose of any Properties
other than (a) sales of Hydrocarbon production in the ordinary course
of business and sales of obsolete or worn-out equipment in the ordinary
course of business, (b) sales or transfers of Properties by any of the
Borrower's wholly-owned Subsidiaries to the Borrower or any such other
wholly-owned Subsidiary, (c) the sale of the ▇▇▇▇▇▇▇▇ Divestiture
Properties; provided that with respect to any such sale of ▇▇▇▇▇▇▇▇
Divestiture Properties (i) the sale is consummated on or before August
10, 1999, (ii) the cash sales proceeds received by the Borrower for
each group of ▇▇▇▇▇▇▇▇ Divestiture Properties is not less than the
Minimum Sales Price for such group of ▇▇▇▇▇▇▇▇ Divestiture Properties
as set forth on Schedule 6.07, (iii) at least 60% of the sales proceeds
from such sale is applied to partially repay the Loans and (iv) the
remaining sales proceeds are applied by the Borrower toward the payment
of (y) existing Indebtedness and obligations of the Borrower and/or (z)
the costs and expenses of operating, maintaining and developing its Oil
and Gas Properties, (d) the sale of the Rocky Mountain Divestiture
Properties; provided that with respect to any such sale of Rocky
Mountain Divestiture Properties
-2-
3
(i) the sale is consummated on or each group of Rocky Mountain
Divestiture Properties is not less than the Minimum Sales Price for
such group of Rocky Mountain Divestiture Properties as set forth on
Schedule 6.07, (iii) at least 60% of the cash sales proceeds received
by the Borrower at closing for each group of Rocky Mountain Divestiture
Properties is applied to partially repay the Loans, (iv) the remaining
cash sales proceeds received by the Borrower at closing for each group
of Rocky Mountain Divestiture Properties are applied by the Borrower
toward the payment of (y) existing Indebtedness and obligations of the
Borrower and/or (z) the costs and expenses of operating, maintaining
and developing its Oil and Gas Properties, (v) the cash sales proceeds
to be received by the Borrower at closing for each group of Rocky
Mountain Divestiture Properties is not less than 75% of the total cash
sales price for such group of Rocky Mountain Divestiture Properties
(vi) the Agent, in its sole discretion, shall have approved of the
terms of the sale of each group of Rocky Mountain Divestiture
Properties, (vii) 100% of the cash sales proceeds received by the
Borrower after closing for each group of Rocky Mountain Divestiture
Properties is applied to partially repay the Loans and (viii) the
Borrower shall have granted a first priority Lien in favor of the Agent
as security for the Obligations on such post-closing cash sales
proceeds and the Borrower's rights thereto pursuant to Security
Documents satisfactory in form and substance to the Agent, and (e)
farmouts and leases of any of the Borrowers Oil and Gas Properties that
do not have any Proved Reserves attributable thereto so long as such
farmouts and leases are in the ordinary course of business and on terms
customary in the industry."
f. The last sentence of Section 9.01 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Notwithstanding the foregoing, (y) the Agent may (without the
consent of the Banks) release or subordinate (as appropriate) the Lien
created under the Security Documents on any assets of the Borrower or
any of its Subsidiaries if the sale, farmout or lease of such assets is
permitted under Section 6.07 and (z) any waiver of any Default or Event
of Default under Sections 7.01(c), (d), (e), (f), (g) or (m) or any
Default that with the giving of notice or the lapse of time or both
could become an Event of Default under Sections 7.01(c), (d), (e), (f),
or (m) shall become effective for the specific instance and for the
specific purpose for which given if such waiver is in writing and
signed by the Borrower and the Required Banks."
Section 3. Limited Waiver of Credit Agreement. The Bank Group
hereby waives compliance by the Borrower with Sections 9(a) and 9(b) of the
Eighth Amendment to Amended and Restated Credit Agreement dated as of March 31,
1999 until August 10, 1999. The Bank Group hereby waives compliance by the
Borrower with the last sentence of Section 5.11 of the Credit Agreement until
July 15, 1999. The Bank Group hereby waives, until August 10, 1999, the Default
under Section 7.01(e) of the Credit Agreement resulting from the Borrower's
failure to pay BTCo. (a) an amount equal to $368,900 that became due on May 5,
1999 under a certain Bank Group Derivative between the Borrower and BTCo., (b)
an amount equal to $206,640 that became due on June 3, 1999 under a certain Bank
Group Derivative between the Borrower and BTCo. and (c) an
-3-
4
amount equal to $171,802 that became due on June 7, 1999 under a certain Bank
Group Derivative between the Borrower and BTCo. The Bank Group hereby waives,
until August 10, 1999, any Default that would occur under Section 7.01(e) of the
Credit Agreement resulting from the Borrower's failure to pay BTCo. any amount
that becomes due between the date of this Amendment and August 10, 1999 under
any Bank Group Derivative between the Borrower and BTCo. The Bank Group hereby
waives, until August 10, 1999, compliance by the Borrower with Sections 6.04 and
6.05 of the Credit Agreement for the calendar quarter ending June 30, 1999. The
foregoing waivers are limited to the above described matters and time period,
shall expire on August 10, 1999, and shall not be construed as a waiver of any
provision of the Credit Agreement or any other Loan Document with respect to any
other matter or as a waiver of any other current or future Default or Event of
Default under the Credit Agreement. The Bank Group reserves the right to
exercise any rights or remedies with respect to any other such current or future
Default or Event of Default under the Credit Agreement. The foregoing waiver of
Section 7.01(e) of the Credit Agreement shall not be deemed as a waiver of any
right or remedy of BTCo. with respect to any Bank Group Derivative between the
Borrower and BTCo. or as a release or forgiveness by BTCo. of any amount at any
time owing by the Borrower to BTCo. in respect of any such Bank Group
Derivative.
Section 4. Limitations of Amendments. THE AMENDMENTS TO THE
CREDIT AGREEMENT AND WAIVERS SET FORTH HEREIN SHALL NOT (A) ESTABLISH A COURSE
OF DEALING BETWEEN THE BORROWER AND THE BANK GROUP, (B) BE CONSIDERED A NORMAL
AND CUSTOMARY PRACTICE BY ANY MEMBER OF THE BANK GROUP, OR (C) OBLIGATE ANY BANK
TO AGREE TO ANY OTHER AMENDMENT OR WAIVER IN THE FUTURE FOR ANY PURPOSE. THE
BORROWER FURTHER ACKNOWLEDGES THAT THE AMENDMENTS AND WAIVERS SET FORTH HEREIN
ARE AN ACCOMMODATION TO THE BORROWER, MADE AT ITS REQUEST, AND THAT NO SIMILAR
ACCOMMODATION IS PRESENTLY CONTEMPLATED OR CAN BE EXPECTED IN THE FUTURE.
Section 5. Ratification. The Borrower hereby ratifies and
confirms all of the Obligations under the Credit Agreement (as amended hereby)
and the other Loan Documents. All references in the Loan Documents to the
"Credit Agreement" shall mean the Credit Agreement as amended hereby and as the
same may be amended, supplemented, restated or otherwise modified and in effect
from time to time in the future.
Section 6. Effectiveness. This Amendment shall become
effective in accordance with the terms of the Credit Agreement subject to the
condition precedent that the Borrower shall have paid all outstanding fees and
expenses of the Agent's counsel.
Section 7. Representations and Warranties. The Borrower hereby
represents and warrants to the Bank Group that (a) the execution, delivery and
performance of this Amendment has been duly authorized by all requisite
corporate action on the part of the Borrower, (b) each of the Credit Agreement
(as amended hereby) and the other Loan Documents to which it is a party
constitutes a valid and legally binding agreement enforceable against the
Borrower in accordance with its 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, (c) the
representations and warranties
-4-
5
by the Borrower contained in the Credit Agreement as amended hereby 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, (d) no Default or Event
of Default exists under the Credit Agreement (as amended hereby) or any of the
other Loan Documents.
Section 8. Choice of Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 9. Final Agreement. THE CREDIT AGREEMENT (AS AMENDED
HEREBY) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by its officers thereunto duly authorized as of the
date first above written.
▇▇▇▇▇▇▇▇ ENERGY, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-5-
6
BANKERS TRUST COMPANY,
as Agent and Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agent and Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
DEN NORSKE BANK ASA,
as Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.,
as Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-6-