Exhibit 10.35
FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT
This FIRST AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this
"AMENDMENT"), dated as of May 24, 2007, is entered into by and among PACIFIC
ENERGY RESOURCES LTD., a Delaware corporation ("COMPANY"), certain Subsidiaries
of Company, as Guarantors, the Lenders party hereto, and ▇. ▇▇▇▇ & COMPANY, as
Administrative Agent for such Lenders (in such capacity, "ADMINISTRATIVE
AGENT").
R E C I T A L S:
WHEREAS, Company, Guarantors, Administrative Agent and Lenders entered
into that certain Credit and Guaranty Agreement dated as of November 30, 2006
(as amended or supplemented to the date hereof, the "ORIGINAL AGREEMENT"), for
the purpose and consideration therein expressed, whereby Lenders became
obligated to make senior secured term loans to Company as therein provided; and
WHEREAS, Company, Guarantors, Administrative Agent and Lenders desire
to amend the Original Agreement as set forth herein; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, consents, waivers, and agreements contained herein and in the
Original Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
SECTION 1 DEFINITIONS AND REFERENCES
1.1. TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Credit Agreement shall have the same meanings whenever used in
this Amendment.
1.2. OTHER DEFINED TERMS. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to
them in this Section 1.2.
"AMENDMENT" means this First Amendment to Credit Agreement.
"AMENDMENT DOCUMENTS" means this Amendment and all other
Transaction Documents executed and delivered in connection herewith.
"ASSET SALES AGREEMENT" means that certain Asset Sales
Agreement dated of even date herewith between Seller and Company.
"CREDIT AGREEMENT" means the Original Agreement as amended by
this Amendment.
"DEPOSITS" means, collectively, (a) the "Performance Deposit"
as defined and described in the Asset Sales Agreement, and (b) the
"Deposit" as defined and described in the Membership Purchase
Agreement.
"FAH" means Forest Alaska Holding, LLC, a Delaware limited
liability company.
"MEMBERSHIP PURCHASE AGREEMENT" means that certain Membership
Interest Purchase Agreement dated of even date herewith among Company,
Forest Alaska Operating LLC, a Delaware limited liability company, FAH,
and Seller.
"PURCHASE AGREEMENTS" means the Asset Sales Agreement and the
Membership Purchase Agreement.
"SELLER" means Forest Oil Corporation, a New York corporation.
SECTION 2 AMENDMENTS TO ORIGINAL AGREEMENT
2.1. MINIMUM ADDITIONAL EQUITY. Section 5 of the Original Agreement is
hereby amended to add Section 5.30 thereto immediately following Section 5.29
thereof to read as follows:
5.30 MINIMUM ADDITIONAL EQUITY. On or prior to June 29, 2007, Company
will receive cash proceeds (net of all fees, expenses, commissions,
discounts and all other transaction costs incurred in connection
therewith) in an amount at least equal to $22,000,000 from the sale of
additional shares for a minimum sales price of CAD$2.30 per share since
May 23, 2007 of its Capital Stock and on terms reasonably satisfactory
to Required Lenders in all respects. Company will use the proceeds of
such Capital Stock solely (a) to fund the Approved Plan of Development,
and (b) for working capital purposes.
2.2. EVENTS OF DEFAULT. Subsection (d) of Section 8.1 of the Original
Agreement is hereby amended to read as follows:
(d) Any Credit Party fails to duly observe, perform or comply
with any covenant, agreement or provision of Section 2.4, 2.19, 5.4,
5.22, 5.28, 5.29(d), 5.30, or any part of Section 6;
SECTION 3 LIMITED CONSENT
Company has requested that Administrative Agent and Lenders consent to
Company using up to the aggregate amount of $7,500,000 of its cash for the
Deposits and the fees and expenses associated with the transactions contemplated
by the Purchase Agreements (the "PSA CASH EXPENDITURES"). Company hereby
represents and warrants to Administrative Agent and Lenders that the sole remedy
of FAH and/or Seller under the Purchase Agreements for any breach or failure to
perform thereunder by Company is the retention by Seller of the $1,000,000
Deposit (plus accrued interest) to be made under the Asset Sales Agreement and
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by FAH of the $4,200,000 Deposit (plus accrued interest) to be made under the
Membership Purchase Agreement. Accordingly, subject to the conditions and
limitations set forth herein, and the agreements of Company contained herein,
Administrative Agent and Lenders hereby consent to the PSA Cash Expenditures;
provided that such consent shall be expressly limited to the PSA Cash
Expenditures and shall specifically not be construed as a consent to the
consummation by Company of the transactions contemplated by the Purchase
Agreements. Company hereby agrees that it will not, directly or indirectly,
enter into any amendment, supplement, or modification to either Purchase
Agreement that (a) increases the amount of the deposit thereunder, (b) amends
the provisions therein that set forth the conditions under which Seller is
entitled to retain the applicable deposit thereunder, or (c) provides Seller
with any remedy for Company's breach or failure to perform thereunder other than
its right to retain the applicable Deposit.
SECTION 4 CONDITIONS OF EFFECTIVENESS
4.1. EFFECTIVE DATE. The effectiveness of this Amendment as of the date
first above is subject to the satisfaction, or waiver in accordance with Section
10.5 of the Credit Agreement, of the following conditions:
(a) AMENDMENT DOCUMENTS. Administrative Agent shall have
received counterparts of each Amendment Document originally executed and
delivered by each applicable Credit Party and in such numbers as Administrative
Agent or its counsel may reasonably request.
(b) OTHER DOCUMENTATION. Administrative Agent shall have
received all documents and instruments which Administrative Agent has then
reasonably requested, in addition to those described in this Section 4.1. All
such additional documents and instruments shall be reasonably satisfactory to
Administrative Agent in form, substance and date.
(c) NO DEFAULT. No event shall have occurred and be continuing
that would constitute an Event of Default or a Default.
SECTION 5 REPRESENTATIONS AND WARRANTIES
5.1. REPRESENTATIONS AND WARRANTIES OF COMPANY. In order to induce
Administrative Agent and each Lender to enter into this Amendment, each Credit
Party represents and warrants to Administrative Agent and each Lender that:
(a) The representations and warranties contained in Section 4
of the Original Agreement and the representations and warranties set forth in
this Amendment are true and correct at and as of the time of the effectiveness
hereof, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as of such
earlier date.
(b) Each Credit Party has duly taken all company action
necessary to authorize the execution and delivery by it of the Amendment
Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
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thereunder. Company is duly authorized to borrow funds under the Credit
Agreement.
(c) The execution and delivery by the various Credit Parties
of this Amendment and each of the other Amendment Documents, the performance by
each of its obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with any provision of (A) any Law, (B) the Organizational Documents of any
Credit Party, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon any Credit Party, (ii) result in the acceleration
of any Indebtedness owed by any Credit Party, or (iii) result in or require the
creation of any Lien upon any assets or properties of any Credit Party except as
expressly contemplated in the Transaction Documents. Except as expressly
contemplated in the Transaction Documents no consent, approval, authorization or
order of, and no notice to or filing with, any Governmental Authority or third
party is required in connection with the execution, delivery or performance by
any Credit Party of any Amendment Document or to consummate any transactions
contemplated by the Amendment Documents.
(d) This Agreement and the other Amendment Documents are
legal, valid and binding obligations of each Credit Party which is a party
hereto or thereto, enforceable in accordance with their terms except as such
enforcement may be limited by bankruptcy, insolvency or similar Laws of general
application relating to the enforcement of creditors' rights and by general
principles of equity.
(e) The audited annual Consolidated financial statements of
Company dated as of December 31, 2006 and the unaudited quarterly Consolidated
financial statements of Company dated as of March 31, 2007 fairly present the
Consolidated financial position at such dates and the Consolidated statement of
operations and the changes in Consolidated financial position for the periods
ending on such dates for Company. Copies of such financial statements have
heretofore been delivered to each Lender. Since such dates no Material Adverse
Effect has occurred in the financial condition or businesses or in the
Consolidated financial condition or businesses of Company.
SECTION 6 MISCELLANEOUS
6.1. RATIFICATION;NO WAIVER. The Original Agreement as hereby amended
is hereby ratified and confirmed in all respects. The Transaction Documents, as
they may be amended or affected by the various Amendment Documents, are hereby
ratified and confirmed in all respects. Any reference to the Credit Agreement in
any Transaction Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The execution, delivery and effectiveness of this
Amendment and the other Amendment Documents shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy of
Lenders under the Credit Agreement, the Notes, or any other Transaction Document
nor constitute a waiver of any provision of the Credit Agreement, the Notes, or
any other Transaction Document. In particular, and without limitation, each
Guarantor ratifies and confirms its obligations under Section 7 of the Credit
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Agreement and agrees that all of its respective obligations and covenants
thereunder shall remain unimpaired by the execution and delivery of this
Amendment and the other Amendment Documents.
6.2. SURVIVAL OF AGREEMENTS. All representations, warranties, covenants
and agreements of the Credit Parties herein shall survive the execution and
delivery of this Amendment and the other Amendment Documents and the performance
hereof and thereof, including without limitation the making or granting of the
Loans, and shall further survive until all of the Obligations are paid in full.
All statements and agreements contained in any certificate or instrument
delivered by any Credit Party hereunder or under the Credit Agreement to any
Lender shall be deemed to constitute representations and warranties by, and/or
agreements and covenants of, Company under this Amendment and under the Credit
Agreement.
6.3. REVIEWED BY ATTORNEYS. Each Credit Party represents and warrants
to Administrative Agent and each Lender that it (a) understands fully the terms
of this Amendment and the other Amendment Documents and the consequences of the
execution and delivery hereof and thereof, (b) has been afforded an opportunity
to have this Amendment and the other Amendment Documents reviewed by, and to
discuss this Amendment and the other Amendment Documents with, such attorneys
and other persons as Company may wish, and (c) has entered into this Amendment
and the other Amendment Documents of its own free will and accord and without
threat, duress or other coercion of any kind by any Person. The parties hereto
acknowledge and agree that neither this Amendment nor the other Amendment
Documents shall be construed more favorably in favor of one than the other based
upon which party drafted the same, it being acknowledged that all parties hereto
contributed substantially to the negotiation and preparation of this Amendment
and the other Amendment Documents.
6.4. TRANSACTION DOCUMENTS. This Amendment and the other Amendment
Documents are each a Transaction Document, and all provisions in the Credit
Agreement pertaining to Transaction Documents apply hereto and thereto.
6.5. SEVERABILITY. In case any provision in or obligation hereunder or
any shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
6.6. HEADINGS. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
6.7. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF.
6.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
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THIS AMENDMENT AND THE OTHER TRANSACTION 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
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
PACIFIC ENERGY RESOURCES LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
President
PETROCAL ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
President
▇. ▇▇▇▇ & COMPANY,
as Lead Arranger, Syndication Agent,
Administrative Agent and a Lender
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
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Authorized Signatory
SPF CDO I, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Mule
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Name: ▇▇▇▇▇▇ ▇. Mule
Title: Authorized Signatory
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FIELD POINT I, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇
Title: Authorized Signatory
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