Exhibit 10
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This First Amendment to Third Amended and Restated Credit Agreement (this
"FIRST AMENDMENT") is entered into effective as of the 30th day of April, 2003
(the "EFFECTIVE DATE"), by and among Denbury Resources Inc., a Delaware
corporation ("BORROWER"), Bank One, NA, as Administrative Agent ("ADMINISTRATIVE
AGENT"), and the financial institutions parties hereto as Banks ("EXECUTING
BANKS").
W I T N E S S E T H
WHEREAS, Borrower, Administrative Agent, the other agents a party thereto
and Banks are parties to that certain Third Amended and Restated Credit
Agreement dated as of September 12, 2002 (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, Banks have made a Revolving Loan
to Borrower and provided certain other credit accommodations to Borrower; and
WHEREAS, Borrower has requested that Banks (a) amend certain terms of the
Credit Agreement in certain respects, (b) consent to certain transactions more
particularly described herein, and (c) reaffirm and establish a Borrowing Base
and Conforming Borrowing Base of $220,000,000 to be effective as of April 1,
2003 and continuing until the first Redetermination thereafter; and
WHEREAS, subject to and upon the terms and conditions set forth herein,
Executing 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, Administrative Agent and each Executing Bank hereby agree as follows:
SECTION 1. AMENDMENTS. In reliance on the representations, warranties, covenants
and agreements contained in this First Amendment, and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, the
Credit Agreement shall be amended effective as of the Effective Date in the
manner provided in this Section 1.
1.1 ADDITIONAL DEFINITIONS. Section 2.1 of the Credit Agreement shall be
amended to add thereto in alphabetical order the definitions of "BOND
DISBURSEMENT," "BOND DOCUMENTS," "BOND EXPOSURE," "BOND INDENTURE," "BOND
ISSUER," "BOND LOAN AGREEMENT," "BOND NOTE," "BOND OFFERING," "BOND PURCHASE
AGREEMENT," "BOND PURCHASER," "BOND TRUSTEE," "BONDS" and "FIRST AMENDMENT"
which shall read in full as follows:
"BOND DISBURSEMENT" means an advance of proceeds of the Bonds by the
Bond Purchaser to the Bond Trustee pursuant to the Bond Documents.
"BOND DOCUMENTS" means, collectively, the Bonds, the Bond Loan
Agreement, the Bond Note, the Bond Purchase Agreement, the Bond Indenture
and all other agreements, documents and instruments now or hereafter
executed and/or delivered by, between or among any Credit Party, Bond
Issuer, Bond Trustee and/or Bond Purchaser pursuant to the Bonds, the Bond
Loan Agreement, the Bond Purchase Agreement, the Bond Indenture or
otherwise in connection with the Bond Offering, each of which agreements,
documents and instruments shall be in form and substance acceptable to
Administrative Agent in its sole discretion.
"BOND EXPOSURE" means, at any time, without duplication, the aggregate
amount of proceeds of the Bonds which have not been advanced at such time
by the Bond Purchaser. The Bond Exposure of any Bank at any time shall be
its Commitment Percentage of the total Bond Exposure at such time.
"BOND INDENTURE" means that certain Indenture, dated as of May 1,
2003, between Bond Issuer and Bond Trustee.
"BOND ISSUER" means Mississippi Business Finance Corporation, a public
corporation organized and existing under the laws of the State of
Mississippi.
"BOND LOAN AGREEMENT" means that certain Loan Agreement, dated as of
May 1, 2003, by and between Bond Issuer and Borrower.
"BOND NOTE" means that certain promissory note of Borrower, dated of
even date with the Bond Loan Agreement, payable to the order of Bond
Issuer, which promissory note shall be pledged and assigned to Bond Trustee
to secure the obligations of Bond Issuer under the Bond Indenture and the
Bonds.
"BOND OFFERING" means the issuance and sale by Bond Issuer of the
Bonds to Bond Purchaser, the proceeds of which are to be advanced, from
time to time, by Bond Purchaser to Bond Trustee to fund the "Project Fund"
as created under, and defined in, the Bond Indenture, which Project Fund
will be utilized to finance the Cost of the Project (as defined in the Bond
Loan Agreement) located in the State of Mississippi. Upon the date of the
issuance of the Bonds, Bond Purchaser shall be deemed to have
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sold to each Bank, and each Bank shall be deemed to have unconditionally
and irrevocably purchased from Bond Purchaser, a participation in the Bonds
and Bond Exposure equal to such Bank's Commitment Percentage of such Bonds
and Bond Exposure.
"BOND PURCHASE AGREEMENT" means that certain Bond Purchase Agreement,
dated as of May 1, 2003, among Bond Purchaser, Bond Issuer and Borrower.
"BOND PURCHASER" means Administrative Agent, as "Purchaser" of the
Bonds under the Bond Purchase Agreement.
"BOND TRUSTEE" means Bank One, NA, in its capacity as "Trustee" under
the Bond Indenture and not as Administrative Agent.
"BONDS" means, whether one or more, Bond Issuer's Taxable Industrial
Development Revenue Bonds, Series 2003 (Denbury Resources Inc. Project),
which Bonds shall (a) be in a maximum aggregate principal amount of
$20,000,000, (b) bear interest at rates identical to the interest rates set
forth in the Credit Agreement, (c) have a maturity date of April 30, 2006,
and (d) provide that Bond Purchaser's obligation to make advances of the
proceeds thereof shall expire two (2) years from the date of issuance of
such Bonds.
"FIRST AMENDMENT" means that certain First Amendment to Third Amended
and Restated Credit Agreement dated as of April 30, 2003 among Borrower,
Administrative Agent and Banks.
1.2 AMENDMENT TO DEFINITIONS. The definitions of "LOAN PAPERS" and
"PERMITTED SUBORDINATE DEBT" contained in Section 2.1 of the Credit Agreement
shall be amended to read in full as follows:
"LOAN PAPERS" means this Agreement, the First Amendment, the Notes,
each Facility Guaranty which may now or hereafter be executed, each
Borrower Pledge Agreement which may now or hereafter be executed, each
Subsidiary Pledge Agreement which may now or hereafter be executed, the
Existing Mortgages (as amended by the Assignments and Amendments to
Mortgages), all Mortgages now or at any time hereafter delivered pursuant
to Section 6.1, the Assignments and Amendments to Mortgages, and all other
certificates, documents or instruments delivered in connection with this
Agreement, as the foregoing may be amended from time to time. In addition,
the term "LOAN
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PAPERS," as used in Article XIII hereof, shall also include the Bond
Documents.
"PERMITTED SUBORDINATE DEBT" means Debt of Borrower resulting from a
single issue of Borrower's 7.5% Senior Subordinated Notes Due 2013 in an
aggregate outstanding principal balance of $225,000,000, and (a) the
proceeds of which shall be used, in part, to redeem in full Borrower's 9%
Senior Subordinated Notes due 2008, (b) which is fully subordinated to the
Obligations pursuant to subordination provisions which have been approved
by Required Banks, and (c) which is not subject to negative covenants or
events of default (or other provisions which have the same effect as
negative covenants or events of default) which have not been approved by
Required Banks.
1.3 ADDITIONAL REPRESENTATION AND WARRANTY. Article VIII of the Credit
Agreement shall be amended to include a new Section 8.21 which shall read in
full as follows:
"SECTION 8.21 BOND DOCUMENTS. Borrower has provided to Administrative
Agent a true and correct copy of each of the Bond Documents, including all
amendments and modifications thereto (whether characterized as an
amendment, modification, waiver, consent or similar document). No material
rights or obligations of any party to any of the Bond Documents have been
waived and no party to any of the Bond Documents is in default of its
obligations or in breach of any representations or warranties made
thereunder. Each of the Bond Documents is a valid, binding and enforceable
obligation of each party thereto in accordance with its terms and is in
full force and effect. As used in this Agreement, the term "OBLIGATIONS"
shall include, without limitation, any and all obligations, indebtedness
and liabilities owed by Borrower or any other Credit Party to Bond
Purchaser (whether directly or as assignee of Bond Issuer) under the Bond
Documents, which obligations, indebtedness and liabilities shall be secured
by Liens on all property described as collateral security for the
Obligations in accordance with and pursuant to the Mortgages and the other
Loan Papers. Each representation and warranty made by each party in the
Bond Documents is true and correct on the date of the First Amendment and
will be true and correct on the date of each Borrowing or issuance of a
Letter of Credit."
1.4 AMENDMENT TO COMPLIANCE COVENANT. Section 9.8 of the Credit Agreement
shall be amended to read in full as follows:
"SECTION 9.8 COMPLIANCE WITH LAWS AND DOCUMENTS. Borrower will, and
will cause each other Credit Party to, comply with (a) all Laws, their
respective certificates (or articles) of incorporation,
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bylaws, regulations and similar organizational documents and all Material
Agreements to which any Credit Party is a party, if a violation, alone or
when combined with all other such violations, could have a Material Adverse
Effect, and (b) all Bond Documents to which any Credit Party is a party."
1.5 AMENDMENT TO DEBT COVENANT. Section 10.1 of the Credit Agreement shall
be amended to read in full as follows:
"SECTION 10.1 INCURRENCE OF DEBT. Borrower will not, nor will Borrower
permit any other Credit Party to, incur, become or remain liable for any
Debt; provided, that (a) Borrower may incur, become or remain liable for
(i) the Obligations, (ii) Existing LC Exposure, (iii) without duplication,
Debt evidenced by the Bond Loan Agreement, and (iv) other unsecured Debt in
an aggregate amount outstanding at any time not to exceed $10,000,000, (b)
Borrower may incur, become and remain liable for Permitted Subordinate
Debt, and (c) any Restricted Subsidiary may incur, become and remain liable
for Permitted Subordinate Debt as a guarantor; provided, that (i) such
Guarantees of Permitted Subordinate Debt shall be subordinated to the
Obligations pursuant to subordination provisions approved by Required
Banks, such approval to not be unreasonably withheld, and (ii) prior to the
execution and delivery by any Restricted Subsidiary of any Guaranty of
Permitted Subordinate Debt, such Restricted Subsidiary shall have executed
and delivered to Administrative Agent for the ratable benefit of Banks a
Facility Guaranty, and all the Equity of such Restricted Subsidiary owned
by Borrower shall have been pledged to Administrative Agent pursuant to a
Borrower Pledge Agreement."
1.6 AMENDMENT TO RESTRICTED PAYMENTS COVENANT. Section 10.2 of the Credit
Agreement shall be amended to read in full as follows:
"SECTION 10.2 RESTRICTED PAYMENTS. Borrower will not, nor will
Borrower permit any other Credit Party to, directly or indirectly, declare
or pay, or incur any liability to declare or pay, any Restricted Payment;
provided, that (a) any Subsidiary of Borrower may make Distributions to
Borrower, any Credit Party may make Distributions to any other Credit Party
that has provided a Facility Guaranty, and all of the Equity of which owned
by Borrower or any Indirect Subsidiary which is a Restricted Subsidiary (as
applicable) has been pledged to Administrative Agent pursuant to a Borrower
Pledge Agreement or a Subsidiary Pledge Agreement (as applicable), (c) so
long as (1) no Default or Borrowing Base Deficiency exists on the date any
such Distribution is declared or paid and no Default or Event of Default
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would result therefrom, and (2) the Borrowing Base does not exceed the
Conforming Borrowing Base on the date such Restricted Payments are declared
or paid, in addition to Distributions permitted under the preceding clauses
(a) and (b), Borrower may make Restricted Payments up to $5,000,000 in the
aggregate in any Fiscal Year, and (d) Borrower may make payments under and
pursuant to the Bond Loan Agreement and the Bond Note in accordance with
the terms thereof."
1.7 AMENDMENT TO NO AMENDMENTS COVENANT. Section 10.6 of the Credit
Agreement shall be amended to read in full as follows:
"SECTION 10.6 AMENDMENTS TO ORGANIZATIONAL AND OTHER DOCUMENTS.
Borrower will not, nor will Borrower permit any other Credit Party to,
enter into or permit any modification or amendment of, or waive any
material right or obligation of any Person under (a) its certificate or
articles of incorporation, bylaws, partnership agreement, regulations or
other organizational documents other than amendments, modifications and
waivers which will not, individually or in the aggregate, have a Material
Adverse Effect, and/or (b) any Bond Document."
1.8 AMENDMENT TO USE OF PROCEEDS COVENANT. Section 10.7 of the Credit
Agreement shall be amended to read in full as follows:
"SECTION 10.7 USE OF PROCEEDS. The proceeds of Borrowings will not be
used for any purpose other than (a) working capital, (b) to finance the
acquisition, exploration and development of Mineral Interests, (c) for
general corporate purposes, (d) to refinance the obligations outstanding
under the Existing Credit Agreement, and (e) with respect to any Borrowings
made or deemed made hereunder through advances to Borrower pursuant to the
Bond Documents, solely for the purposes set forth in the Bond Documents.
None of such proceeds (including, without limitation, proceeds of Letters
of Credit issued hereunder) will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, and none of such proceeds will be used in
violation of applicable Law (including, without limitation, the Margin
Regulations). Letters of Credit will be issued hereunder only for the
purpose of securing bids, tenders, bonds, contracts and other obligations
entered into in the ordinary course of Borrower's business. Without
limiting the foregoing, no Letters of Credit will be issued hereunder for
the purpose of or providing credit enhancement with respect to any Debt or
equity security of any Credit Party or to secure any Credit Party's
obligations with respect to Hedge
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Transactions other than Hedge Transactions with a Bank or an Affiliate of
such Bank."
1.9 AMENDMENT TO HEDGE TRANSACTIONS COVENANT. Section 10.11 of the Credit
Agreement shall be amended to read in full as follows:
"SECTION 10.11 HEDGE TRANSACTIONS.
(a) Borrower will not, nor will Borrower permit any other Credit
Party to, hedge (which hedges shall not have a tenor of greater than
four (4) years) more than the following percentages of its "forecasted
production from Proved Mineral Interests" (as defined below) during
any applicable calendar year (a "MEASUREMENT PERIOD"), as measured
from the current date (a "MEASUREMENT date"):
Calendar Year Hedged Percentage Limitation
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(relative to measurement date)
Oil Gas
Current Year 85% 85%
First Subsequent Year 70% 70%
Second Subsequent Year 55% 55%
Third Subsequent Year 40% 40%
provided, that, if any measurement date occurs in the final two Fiscal
Quarters of any measurement period, for the purpose of determining the
appropriate percentage limitation from the table above, the
limitations of the current year shall apply to both the remaining
portion of that current year and the entire subsequent year, and the
limitations of the first subsequent year shall apply to the second
subsequent year, and so forth (as an example only, and for the
avoidance of doubt, for any measurement date occurring during the
first two Fiscal Quarters of 2003, an Oil and Gas Hedge Transaction
for 2004 would have a 70% limitation; provided, however, for any
measurement date occurring during the last two Fiscal Quarters of
2003, an Oil and Gas Hedge Transaction for 2004 would have an 85%
limitation); provided, further, that, Borrower may enter into Hedge
Transactions consisting solely of a floor price (i.e. floor, put or
option) so long as the amount of Hydrocarbons which are the subject of
any such Hedge Transaction in existence at any such time do not exceed
one-hundred percent (100%) of Borrower's anticipated production from
Proved Mineral Interests during the term of any such existing Hedge
Transaction; and
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(b) Borrower will not permit its (i) production of oil during any
Fiscal Quarter to be less than the aggregate amount of oil which is
the subject of Oil and Gas Hedge Transactions during such Fiscal
Quarter, or (ii) production of gas during any Fiscal Quarter to be
less than the aggregate amount of gas which is the subject of Oil and
Gas Hedge Transactions during such Fiscal Quarter.
As used in Section 10.11(a) above, "forecasted production from Proved
Mineral Interests" shall mean the forecasted production for oil and gas, each
taken individually, for the applicable calendar year as reflected in the most
recent Reserve Report delivered to Administrative Agent pursuant to Section 5.1
hereof, after giving effect to any pro forma adjustments for the consummation of
any "material acquisitions or dispositions" between the effective date of such
Reserve Report and the measurement date. "Material acquisitions or dispositions"
means any acquisition or disposition of any asset with a Recognized Value in
excess of $10,000,000, or any cumulative total of all immaterial acquisitions or
dispositions which in the aggregate have a Recognized Value in excess of
$10,000,000."
1.10 ADDITIONAL COVENANT. Article X of the Credit Agreement shall be
amended to include a new Section 10.16 which shall read in full as follows:
"SECTION 10.16 BORROWINGS RELATED TO BOND OFFERING. Borrower will not
request or receive any Borrowing hereunder, the proceeds of which are to be
used to fund advances under the Bonds, except in accordance and in
compliance with the terms of the Bond Documents. Borrower agrees that each
Request for Borrowing, the proceeds of which are to be used to fund
advances under the Bonds, will include, in addition to the information
described in Section 3.2 hereof, a certification from an Authorized Officer
as to the purpose and utilization of the proceeds of such Borrowing.
Additionally, notwithstanding anything to the contrary contained in the
Loan Papers or Bond Documents, each payment of principal and interest
received by Bond Purchaser on the Bonds shall be deemed to be and
considered as, without duplication, a payment of principal and interest on
the Revolving Loan, and any borrowing by Borrower under the Bond Loan
Agreement or on any Bond Note shall also be deemed to be and considered as,
without duplication, a Borrowing of a Revolving Loan hereunder (the
outstanding principal of which shall be and be deemed to be included in the
Outstanding Credit for all purposes hereunder)."
1.11 AMENDMENT TO EVENTS OF DEFAULT. Section 12.1 of the Credit
Agreement shall be amended (a) to delete the word "or" at the end of clause
(k) thereof, (b) to insert the word "or" at the end of clause (l) thereof,
and (c) to add a new clause (m) thereto which shall read in full as
follows:
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"(m) any Credit Party or Bond Issuer shall fail to observe or perform
any covenant or agreement contained in any Bond Document after any
applicable cure period;".
1.12 AMENDMENT TO AGENT PROVISIONS. Article XIII of the Credit Agreement
shall be amended to include a new Section 13.17 which shall read in full as
follows:
"SECTION 13.17 BOND DOCUMENTS. Without limiting the power and
authority of Administrative Agent described herein, Banks hereby:
(a) appoint Administrative Agent, as Bond Purchaser, as its
contractual representative under the Bond Documents and irrevocably
authorize Administrative Agent to act as the contractual representative of
each Bank under the Bond Documents with the rights and duties expressly set
forth therein, and to hold the Bonds on behalf of the Banks, it being
expressly understood and agreed, however, that Administrative Agent shall
not have any fiduciary responsibilities to any Bank by reason of the Bond
Documents;
(b) empower and authorize Administrative Agent to execute and deliver
the Bond Documents to which it is a party; and
(c) agree that all references in this Article XIII to "LOAN PAPERS,"
shall be deemed to include, without limitation, the Bond Documents."
SECTION 2. CONSENT AND WAIVER. In reliance on the representations, warranties,
covenants and agreements contained in this First Amendment, and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof,
Executing Banks hereby (a) consent to (i) the consummation of the Bond Offering
in accordance with the terms of the Bond Documents, and (ii) the execution and
delivery by Borrower of the Bond Documents to which it is a party, and the
performance of its obligations and the exercise of its rights under and pursuant
thereto, (b) waive compliance by Borrower with each provision of the Credit
Agreement and the other Loan Papers to the extent, but only to the extent, that
the consummation of the Bond Offering and the execution and delivery of the Bond
Documents by Borrower, and the performance of its obligations and the exercise
of its rights under and pursuant thereto, violate such provisions or result in a
Default or Event of Default under the Credit Agreement or the other Loan Papers,
and (c) waive compliance by Borrower with Section 10.11 of the Credit Agreement
with respect to, but only with respect to, non-compliance by Borrower with the
provisions of Section 10.11 of the Credit Agreement prior to the Effective Date.
The consent and waivers herein contained are expressly limited as follows: (i)
such consent and waivers are limited solely to (as applicable) (A) the
consummation of the Bond Offering in accordance with the terms of the Bond
Documents most recently provided to Administrative Agent, and (B) the
non-compliance by Borrower with the provisions of Section 10.11 of the Credit
Agreement prior to the Effective Date, and (ii) such consent and waivers are
each a limited, one-time consent and waiver, and nothing contained herein shall
obligate Banks to grant any additional or future consent or waiver with respect
to, or in connection with, any provision of any Loan Paper.
SECTION 3. BORROWING BASE AND CONFORMING BORROWING BASE. Effective as of April
1, 2003, the Borrowing Base and the Conforming Borrowing Base shall each be
reaffirmed at
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$220,000,000 and each shall remain at $220,000,000 until the next
Redetermination thereafter. Borrower and Banks agree that the Redetermination
provided for in this Section 3 shall not be construed or deemed to be a Special
Redetermination for purposes of Section 5.3 of the Credit Agreement.
SECTION 4. CONDITIONS PRECEDENT TO AMENDMENTS. The amendments contained in
Section 1 hereof and the consent and waiver contained in Section 2 hereof are
subject to the satisfaction of each of the following conditions precedent on or
before May 31, 2003:
4.1 CONSUMMATION OF BOND OFFERING. Subject only to the granting of the
consent thereto contained in Section 2 hereof, the Bond Offering shall have been
consummated in accordance with the terms of the Bond Documents.
4.2 MATERIAL AGREEMENTS. Administrative Agent shall have been provided with
fully executed copies of (a) the Bond Documents, and (b) all material documents,
instruments and agreements executed and/or delivered by Borrower or any of its
Subsidiaries in connection with the issuance of the Permitted Subordinate Debt,
together with a certificate from an Authorized Officer of Borrower certifying
that such copies are accurate and complete and represent the complete
understanding and agreement of the parties with respect to the subject matter
thereof.
4.3 RESOLUTIONS. Borrower shall have provided Administrative Agent with
copies of resolutions and comparable authorizations approving (a) this First
Amendment, (b) any other Loan Papers to be executed or delivered pursuant
hereto, and (c) the Bond Documents to be executed or delivered by Borrower, and
further authorizing the transactions contemplated by this First Amendment and
any other Loan Papers to be executed or delivered pursuant hereto, duly adopted
by the Board of Directors of Borrower accompanied by a certificate of the
Secretary or comparable Authorized Officer of Borrower 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 of Borrower) by
the unanimous written consent of the Board of Directors of Borrower, 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.
4.4 OPINION. Borrower shall have delivered an opinion of Jenkens &
Gilchrist, counsel to Borrower, with respect to the due authorization,
execution, delivery and enforceability of this First Amendment and the Bond
Documents to which Borrower is a party, and such other matters related thereto
as Administrative Agent shall require.
4.5 AMENDMENT FEE. Upon execution of the First Amendment by Required Banks,
Borrower shall pay to Administrative Agent, for the benefit of Executing Banks,
a fee in the amount of $3,000 for each Executing Bank. Such $3,000 fee shall be
distributed by Administrative Agent to each Executing Bank provided that such
Executing Bank executes and delivers this First Amendment on or before May 7,
2003.
4.6 NO DEFAULT. No Default or Event of Default shall have occurred which is
continuing.
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4.7 OTHER DOCUMENTS. Administrative Agent shall have been provided with
such other documents, instruments and agreements, and Borrower shall have taken
such actions, as Administrative Agent may reasonably require in connection with
this First Amendment and the transactions contemplated hereby.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BORROWER. To induce Banks and
Administrative Agent to enter into this First Amendment, Borrower hereby
represents and warrants to Banks and Administrative Agent as follows:
5.1 REAFFIRM EXISTING REPRESENTATIONS AND WARRANTIES. 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.
5.2 DUE AUTHORIZATION; NO CONFLICT. The execution, delivery and performance
by Borrower of this First Amendment are within Borrower's corporate powers, have
been duly authorized by all 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.
5.3 VALIDITY AND ENFORCEABILITY. This First 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.
5.4 NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default has
occurred which is continuing.
SECTION 6. MISCELLANEOUS.
6.1 REAFFIRMATION OF LOAN PAPERS. 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. The amendments contemplated
hereby shall not limit or impair any Liens securing the Obligations, each of
which are hereby ratified, affirmed and extended to secure the Obligations as
they may be increased pursuant hereto.
6.2 PARTIES IN INTEREST. All of the terms and provisions of this First
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
6.3 LEGAL EXPENSES. Borrower hereby 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
First Amendment and all related documents.
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6.4 COUNTERPARTS. This First Amendment may be executed in counterparts, and
all parties need not execute the same counterpart; however, no party shall be
bound by this First Amendment until all parties have executed a counterpart.
Facsimiles shall be effective as originals.
6.5 COMPLETE AGREEMENT. THIS FIRST 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 OR AMONG THE PARTIES.
6.6 HEADINGS. The headings, captions and arrangements used in this First
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this First Amendment, nor affect
the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by their respective authorized officers on the date and year
first above written.
[Signature Pages to Follow]
SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
BORROWER:
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DENBURY RESOURCES INC.,
a Delaware corporation
By:
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Phil Rykhoek,
Senior Vice President and Chief Financial Officer
SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
ADMINISTRATIVE AGENT:
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BANK ONE, NA, as Administrative Agent
By:
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J. Scott Fowler,
Director, Capital Markets
BANKS:
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BANK ONE, NA
By:
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J. Scott Fowler,
Director, Capital Markets
SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
FORTIS CAPITAL CORP.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
COMERICA BANK - TEXAS
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
WELLS FARGO BANK TEXAS, N.A.
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
FLEET NATIONAL BANK
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
BANK OF SCOTLAND
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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SIGNATURE PAGE TO
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
COMPASS BANK
By:
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Name:
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Title:
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