EXHIBIT 10.12.1
SECOND AMENDMENT TO FACILITY AGREEMENT
This Second Amendment to Facility Agreement (this "Second
Amendment") is entered into as of the 30th day of June, 1995, by and
between Snyder Oil Corporation, a Delaware corporation ("Lessee") and
NationsBanc Leasing Corporation, a North Carolina corporation
("Lessor").
W I T N E S E T H:
WHEREAS, Lessee and Lessor are parties to that certain Facility
Agreement dated as of November 3, 1994, as amended by that certain
First Amendment to Facility Agreement by and between Lessee and
Lessor dated as of December 30, 1994 (as amended, the "Facility
Agreement") (unless otherwise defined herein, all terms used herein
with their initial letter capitalized shall have the meaning given
such terms in the Facility Agreement); and
WHEREAS, pursuant to the Facility Agreement, the Lessee has made
certain covenants, agreements, representations and warranties with
respect to an equipment leasing transaction between Lessor and
Lessee; and
WHEREAS, Lessee has requested that certain provisions of the
Facility Agreement, including, without limitation, Section 6.4
thereof and certain related definitions be amended in certain
respects; and
WHEREAS, subject to the terms and conditions herein contained,
Lessor has agreed to Lessee'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, Lessee and Lessor hereby agree as
follows:
Section 1. Amendments. Subject to the satisfaction of each
condition precedent set forth in Section 2 hereof and in reliance on
the representations, warranties, covenants and agreements contained
in this Second Amendment, the Facility Agreement shall be amended
effective June 30, 1995 (the "Effective Date") in the manner provided
in this Section 1.
1.1. Amendment to Definitions. The definitions of "Adjusted
Consolidated Cash Flow," "Consolidated Total Covered Debt," "Senior
Credit Agreement," and "Transaction Papers" contained in Section 1.1
of the Facility Agreement shall be amended to read in full as
follows:
"Adjusted Consolidated Cash Flow" means, with respect to Lessee
for any time period, Consolidated Cash Flow of Lessee for such
time period, adjusted, however, to (a) reflect all revenues and
expenses (including lease operating expense, severance taxes,
additional overhead and other expenses) attributable to material
oil and gas properties purchased by Lessee or any of its
Subsidiaries after the first day of such period as if such
properties had been owned by Lessee or such Subsidiary on the
first day of such period, and (b) exclude all (i) expenses in an
amount not exceeding $4,341,000 incurred by Lessee in its fiscal
quarters ending June 30, 1995 and March 31, 1996 in connection
with the settlement of certain litigation pending against
Borrower in the District Court of Harris County, Texas styled
Jerry Wayne Roberson, et al. v. Snyder Oil Corporation, et al.,
and (ii) recoveries made of such expenses by Lessee or any of
its Subsidiaries under insurance policies. As used in this
definition, "material oil and gas properties" means oil and gas
properties purchased for a purchase price of not less than
$25,000,000.
"Consolidated Total Covered Debt" means with respect to Lessee
at any time, (a) the consolidated Debt of Lessee and its
Consolidated Subsidiaries at such time, plus (b) Consolidated
Current Liabilities of Lessee and its Consolidated Subsidiaries
in excess of Consolidated Current Assets of Lessee and its
Consolidated Subsidiaries at such time, minus (c) Debt of Lessee
at such time under the Master Lease.
"Senior Credit Agreement" means the Fifth Restated Credit
Agreement dated as of June 30, 1994, by and among Lessee,
NationsBank of Texas, N.A. and the Banks from time to time
parties thereto as the same was amended by (i) that certain
letter agreement dated as of May 1, 1995 by and among Lessee and
the Banks, and (ii) that certain Second Amendment to Fifth
Restated Credit Agreement dated as of June 30, 1995, by and
among Lessee, NationsBank of Texas, N.A. and the Banks, as the
same may hereafter be amended, modified, renewed, extended,
restated, increased or replaced from time to time, including,
without limitation, any replacement thereof entered into with
banks or other financial institutions which are not parties to
the Senior Credit Agreement as in effect on the date hereof.
"Transaction Papers" means this Agreement, the Master Lease, the
Site Lease, the Environmental Indemnity Agreement, the First
Amendment, the Second Amendment and all other documents,
instruments, agreements or certificates now or at any time
hereafter delivered in connection with this Agreement, the
Master Lease, the Site Lease, the Environmental Indemnity
Agreement, the First Amendment and the Second Amendment, as the
same may hereinafter be amended, modified or reinstated from
time to time.
1.2. Additional Definitions. Section 1.1 of the Facility
Agreement shall be amended to add the following definitions to such
Section:
"First Amendment" means that certain First Amendment to Facility
Agreement dated as of December 30, 1994, by and between Lessee
and Lessor.
"Second Amendment" means that certain Second Amendment to
Facility Agreement dated as of June 30, 1995, by and between
Lessee and Lessor.
1.3. Adjusted Consolidated Cash Flow Coverage of Lessee.
Section 6.4 of the Facility Agreement shall be amended to read in
full as follows:
SECTION 6.4. Adjusted Consolidated Cash Flow Coverage of
Lessee. If, as of March 31, 1995, June 30, 1995 or September
30, 1995, Lessee's Adjusted Consolidated Cash Flow for (a) the
fiscal quarter then ending, is less than four percent (4%) of
Lessee's Consolidated Total Covered Debt as of such date, or (b)
any period of four (4) fiscal quarters then ending is less than
nineteen percent (19%) of Lessee's Consolidated Total Covered
Debt as of such date, then, in either event, Lessee will, prior
to the expiration of the applicable Special Cash Flow Cure
Period, reduce the principal balance on its outstanding Debt to
an amount which would cause Lessee's Adjusted Consolidated Cash
Flow for such quarter and period of four (4) fiscal quarters to
exceed the percentages set forth herein of Lessee's Consolidated
Total Covered Debt as so reduced. If, as of the end of any
fiscal quarter ending on or after December 31, 1995, the
aggregate Adjusted Consolidated Cash Flow of Lessee for (y) the
fiscal quarter then ended is less than five percent (5%) of
Lessee's Consolidated Total Covered Debt as of the end of such
fiscal quarter, or (z) the four (4) fiscal quarters then ended
is less than twenty five percent (25%) of Lessee's Consolidated
Total Covered Debt as of the end of such fiscal quarter, then,
in either event, Lessee will, prior to the expiration of the
applicable Special Cash Flow Cure Period, reduce the principal
balance on its outstanding Debt to an amount which would cause
Lessee's Adjusted Consolidated Cash Flow for such quarter and
period of four (4) fiscal quarters to exceed the percentages set
forth herein of Lessee's Consolidated Total Covered Debt as so
reduced.
SECTION 2. Conditions Precedent to Effectiveness of Amendments.
The amendments to the Facility Agreement contained in Section 1 of
this Second Amendment shall be effective only upon the satisfaction
of each of the conditions set forth in this Section 2. If each
condition set forth in this Section 2 has not been satisfied by the
Effective Date, this Second Amendment and all obligations of Lessee
contained herein shall, at the option of Lessor, terminate.
2.1 Corporate Existence and Authority. Lessee shall have
delivered to Lessor such resolutions, certificates and other
documents as Lessor shall request relative to the authorization,
execution and delivery by Lessee of this Second Amendment.
2.2 Certificate Regarding Representations and Warranties.
Lessee shall have delivered to Lessor 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 Facility Agreement, (b) this Second Amendment, and (c) each
of the other Transaction Papers, is true and correct and will be true
and correct after giving effect to the amendments contained in
Section 1 hereof.
SECTION 3. Representations and Warranties of Lessee. To induce
Lessor to enter into this Second Amendment, Lessee hereby represents
and warrants to Lessor as follows:
(a) Each representation and warranty of Lessee contained in the
Facility Agreement and the other Transaction 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 Lessee of this
Second Amendment are within Lessee'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 result in the creation or imposition of any Lien upon any of
the assets of Lessee or the Subsidiaries of Lessee except Permitted
Encumbrances.
(c) This Second Amendment constitutes the valid and binding
obligation of Lessee 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 4. Miscellaneous.
4.1 Reaffirmation of Transaction Papers. Any and all of the
terms and provisions of the Facility Agreement and the Transaction
Papers shall, except as amended and modified hereby, remain in full
force and effect.
4.2 Parties in Interest. All of the terms and provisions of
this Second Amendment shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
4.3 Legal Expenses. Lessee hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Lessor incurred by Lessor,
in connection with the preparation, negotiation and execution of this
Second Amendment and all related documents.
4.4 Counterparts. This Second Amendment may be executed in
counterparts, and all parties need not execute the same counterpart.
However, no party shall be bound by this Second Amendment until all
parties have executed a counterpart. Facsimiles shall be effective
as originals.
4.5 Complete Agreement. THIS SECOND AMENDMENT, THE FACILITY
AGREEMENT AND THE OTHER TRANSACTION 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.
4.7 Headings. The headings, captions and arrangements used in
this Second Amendment are, unless specified otherwise, for
convenience only and shall not be deemed to limit, amplify or modify
the terms of this Second 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.
LESSEE:
SNYDER OIL CORPORATION,
a Delaware corporation
By: /s/ James H. Shonsey
---------------------------
James H. Shonsey
Vice President, Finance
LESSOR:
NATIONSBANC LEASING
CORPORATION, a North Carolina corporation
By: /s/ Regis S. Sakalik
---------------------------
Its: Assistant Vice President