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EXHIBIT 10.3
EXECUTION COPY
PARTIAL ASSIGNMENT OF NOTES
THIS PARTIAL ASSIGNMENT OF NOTES ("Agreement") dated as of
February 17, 2000, by and among Bank of Montreal, a Canadian bank (the "BMO"),
Societe Generale, Southwest Agency ("Soc-Gen"), Shell Capital Inc., a Delaware
corporation (the "Assignee") and Brigham Oil & Gas, L.P., a Delaware limited
partnership (the "Borrower").
RECITALS
A. Pursuant to that certain Credit Agreement (the "Original
Credit Agreement") dated as of January 26, 1998 among the Borrower and BMO, as
amended by that certain First Amendment to Credit Agreement dated as of August
20, 1998 among the Borrower, BMO and Soc-Gen (the "First Amendment"), that
certain Second Amendment to Credit Agreement dated as of March 26, 1999 among
the Borrower, BMO and Soc-Gen (the "Second Amendment"), that certain Third
Amendment to Credit Agreement dated as of July 19, 1999 among the Borrower, BMO
and Soc-Gen (the "Third Amendment") and that certain Fourth Amendment to Credit
Agreement dated as of October 7, 1999 among the Borrower, BMO and Soc-Gen (the
"Fourth Amendment") (the Original Credit Agreement as amended by the First
Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment
being hereafter called the "Prior Credit Agreement"), BMO and Soc-Gen provided
to the Borrower loans and extensions of credit, which loans and extensions of
credit are evidenced by those certain promissory notes from the Borrower in the
aggregate principal amount of $75,000,000 (the "Prior Notes").
B. BMO and Soc-Gen (collectively the "Assignors") propose to
sell, assign and transfer to the Assignee, and the Assignee proposes to purchase
and assume from the Assignors, a 53.333% interest in the Prior Notes (the
Assigned Interest, as hereinafter defined) upon the occurrence of certain
conditions provided herein, and BMO and Soc-Gen, as the case may be, propose to
sell, assign and transfer to the Assignee, and the Assignee proposes to purchase
and assume from BMO and/or Soc-Gen the Retained Interest, as hereinafter
defined, all on the terms and conditions of this Agreement.
C. Pursuant to that certain Amended and Restated Credit
Agreement (the "Current Credit Agreement") dated as of February 17, 2000 among
the Borrower, BMO, in its individual capacity, Soc-Gen and Assignee, and BMO, in
its capacity as Agent for Soc-Gen and Assignee (in such capacity, together with
its successors in such capacity, the "Agent") have agreed to provide senior
secured debt in the amount of up to $75,000,000 (the "Current Notes") consisting
of a rearrangement of the Prior Notes and advances to the Borrower for general
corporate purposes and the Borrower, BMO, Soc-Gen, Assignee and the Agent agree
to amend and restate in their entirety the Prior Credit Agreement by means of
the Current Credit Agreement, and the Prior Notes, by means of the Current
Notes.
D. In consideration of the foregoing and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE 1
Definitions.
Section 1.01 Definitions. All capitalized terms used but not defined
herein have the respective meanings given to such terms in the Credit Agreement
if defined therein.
Section 1.02 Other Definitions. As used herein, the following terms
have the following respective meanings:
"Assigned Interest" shall mean that portion of each of BMO's
and Soc-Gen's rights and obligations (i) under the Prior Credit
Agreement and the other Loan Documents in respect of the Maximum Credit
Amount of each of BMO and Soc-Gen in the principal amount as set forth
on Schedule A to this Agreement ("Schedule A"), and (ii) to make Loans
under the Maximum Credit Amount and any right to receive payments for
the Loans outstanding under the Maximum Credit Amount as set forth on
Schedule A, plus the interest and fees which will accrue on the
Assigned Interest from and after the Assignment Date.
"Assignee Subordinated Indebtedness" shall mean the principal
balance due to Assignee (excluding any Debt of the Borrower under
Hedging Agreements made with the Assignee or an Affiliate of Assignee
as provided in the Current Credit Agreement) of all loans advanced to
or issued for the account of Borrower pursuant to the terms and
conditions of the Prior Credit Agreement and the Current Credit
Agreement, not to exceed $75,000,000 and accrued but unpaid interest
thereon, and of all fees, expenses, reimbursement obligations,
liabilities, indemnities or other monetary obligations of Borrower
whether any of the foregoing is (i) absolute or contingent, direct or
indirect, joint, several or independent, (ii) now outstanding or owing
or which may hereafter be existing or incurred, (iii) due or to become
due, or (iv) held or to be held by Assignee, and all renewals,
extensions, rearrangements, refundings and modifications thereof
permitted by the terms hereof.
"Assignment Date" shall mean February 17, 2000.
"BMO/Soc-Gen Senior Indebtedness" shall mean the principal
balance due (i) to Assignors of all loans advanced to or issued for the
account of Borrower pursuant to the terms and conditions of the Prior
Credit Agreement and the Current Credit Agreement, not to exceed
$75,000,000 and accrued but unpaid interest thereon, and of all fees,
expenses, reimbursement obligations, liabilities, indemnities or other
monetary obligations of Borrower under the Credit Agreement, and (ii)
of all swap settlement amounts or other amounts due and payable under
any Hedging Agreement in existence as of the date hereof or hereafter
arising between (i) Borrower and BMO and its successors or assigns (a
"BMO Hedge Party") and Soc-Gen and its successors or assigns (a
"Soc-Gen Hedge Party") entered into while such BMO Hedge Party or such
Soc-Gen Hedge Party is a Lender; and (ii) Borrower and SCI and its
successors or assigns (with
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Loans or Commitments of $20 million or more) or any Affiliate of SCI
(SCI and any Affiliate of SCI a "SCI Hedge Party") entered into while
such SCI Hedge Party or Fathom Energy Capital I, L.L.C, is a Lender,
whether any of the foregoing is (w) absolute or contingent, direct or
indirect, joint, several or independent, (x) now outstanding or owing
or which may hereafter be existing or incurred, (y) due or to become
due, or (z) held or to be held by the Assignors or any Assignor, and
all renewals, extensions, rearrangements, refundings and modifications
thereof permitted by the terms hereof. The parties intend that any
Hedging Agreement entered into between the Borrower and a Lender or in
the case of SCI, a SCI Hedge Party, while such Person was a party to
the Credit Agreement shall continue to be secured even after the time
such Person ceases to be a party to the Credit Agreement as a Lender
and shall be "BMO/Soc-Gen Senior Indebtedness".
"Retained Interest" shall mean that portion of each of BMO and
Soc-Gen's rights and obligations (i) under the Prior Credit Agreement,
the Current Credit Agreement and the other Loan Documents in respect of
the BMO/Soc-Gen Senior Indebtedness of each of BMO and Soc-Gen in the
principal amount as set forth in Schedule B to this Agreement
("Schedule B") and (ii) to make Loans under the BMO/Soc-Gen Senior
Indebtedness as set forth on Schedule B (the "Retained Loan
Commitment"), plus the interest and fees which will accrue on the
Retained Interest from and after the Assignment Date.
ARTICLE 2
Sale and Assignment.
Section 2.01 Sale and Assignment.
(a) On the terms and conditions set forth herein, effective on
and as of the Assignment Date, the Assignors hereby sell, assign and
transfer to the Assignee, and the Assignee hereby purchases and assumes
from the Assignors, all of the right, title and interest of the
Assignors in and to, and all of the obligations of the Assignors in
respect of, the Assigned Interest. Such sale, assignment and transfer
is without recourse and, except as expressly provided in this
Agreement, without representation or warranty.
(b) At the election of each BMO/Soc-Gen Lender, Assignee shall
be obligated to purchase the Retained Interest of such BMO/Soc-Gen
Lender on March 31, 2002 provided that the amount of the Borrowing Base
on such date determined in accordance with Section 2.08 of the Credit
Agreement is greater than the aggregate outstanding principal amounts
of the Loans, there are no Defaults or Events of Default under the
Current Credit Agreement, and such BMO/Soc-Gen Lender requests in
writing no later than March 15, 2002 that the Assignee purchase the
Retained Interest of such BMO/Soc-Gen Lender. The sale, assignment and
transfer of such Retained Interest to Assignee will be without recourse
and without representation or warranty, except for representations
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substantially the same to those provided in this Agreement and shall be
in form substantially similar to this Agreement.
Section 2.02 Assumption of Obligations. The Assignee agrees with the
Assignors (for the express benefit of the Assignors and the Borrower) that the
Assignee will, from and after the Assignment Date, perform all of the
obligations of the Assignors accruing after the Assignment Date in respect of
the Assigned Interest. From and after the Assignment Date: (a) the Assignors
shall be released from the Assignors' obligations in respect of the Assigned
Interest, and (b) the Assignee shall, except as otherwise provided in this
Agreement, including, without limitation, Section 3.03 which, among the
Assignors, Assignee and the Borrower, governs the allocation of payments on the
Assigned Interest and Section 3.05 which, among the Assignors, Assignee and the
Borrower, governs future obligations to make loans under the Current Credit
Agreement, be entitled to all of the Assignors' rights, powers and privileges
under the Credit Agreement and the other Loan Documents in respect of the
Assigned Interest.
Section 2.03 Purchase Price for Assigned Interest. As consideration for
the sale, assignment and transfer of the Assigned Interest contemplated by
Section 2.01(a) hereof, the Assignee shall, on the Assignment Date, assume
Assignors' obligations accruing after the Assignment Date in respect of the
Assigned Interest and pay to BMO an amount equal to $13,892,323.85 and to
Soc-Gen an amount equal to $7,107,676.15. Except as otherwise provided in this
Agreement, all payments hereunder shall be made in Dollars and in immediately
available funds, without setoff, deduction or counterclaim.
Section 2.04 Purchase Price for Retained Interest. Upon satisfaction of
the conditions specified in Section 2.01(b) hereof, Assignee shall pay to each
BMO/Soc-Gen Lender who makes the election to assign its Retained Interest to
Assignee an amount equal to the then outstanding principal and interest of the
Retained Loan Commitment owed to such BMO/Soc-Gen Lender in consideration of the
sale, assignment and transfer of the Retained Interest as provided herein. Such
payment shall be made in Dollars and in immediately available funds, without
setoff, deduction or counterclaim and shall be made no later than March 31,
2002.
Section 2.05 Delivery of Notes. Promptly following the receipt by the
Assignors of the consideration required to be paid under Section 2.03 or 2.04
hereof, the Assignors shall, in the manner contemplated by Section 12.06(d) of
the Current Credit Agreement, (i) deliver to the Agent (or its counsel) a Note
corresponding to the Assigned Interest or any applicable Retained Interest, as
the case may be, and (ii) notify the Agent to request that the Borrower execute
and deliver new Notes in accordance with the terms of the Current Credit
Agreement to the Assignors and the Assignee.
ARTICLE 3
Subordination
Section 3.01 Agreement to Subordinate. The payment of any and all
Assignee Subordinated Indebtedness and the rights of Assignee with respect to
the Assignee Subordinated
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Indebtedness are expressly subordinated to the BMO/Soc-Gen Senior Indebtedness
to the extent and in the manner set forth in Sections 3.02 through 3.05 hereof.
Section 3.02 Certain Voting Rights.
(a) The Assignors and Assignee agree that, except as otherwise
expressly provided herein or in the Current Credit Agreement, on any
date prior to March 31, 2002 any act, event, document or condition
requiring pursuant to the terms of the Current Credit Agreement the
consent, agreement or waiver of, or approval, notice, selection,
designation or appointment by, or request, direction or election of,
the Lenders, shall require the unanimous agreement of the Majority
Lenders;
(b) Notwithstanding the provisions of Section 2.08(a) of the
Current Credit Agreement, the BMO/Soc-Gen Majority Lenders shall in
their sole discretion determine the Target Asset Value as provided in
Section 8.13 of the Current Credit Agreement and whether to waive any
default arising from Borrower's non-compliance with Section 8.13 of the
Current Credit Agreement;
(c) The SCI Majority Lenders, in their sole discretion, shall
determine (i) the Risk Adjusted Proved Reserve Value, (ii) the PDP
Reserve value for purposes of subparagraph (c) of the definition of
Increase Event, (iii) whether to waive any default under Section
9.22(e) of the Current Credit Agreement, and (iv) whether to convert
the Assigned Interest into equity of Borrower pursuant to the Equity
Conversion Agreement;
(d) At the request of the Agent, the Assignee agrees to execute
any consents, agreements, waivers, approvals, requests, or other
instruments or documents necessary or desirable to give effect to the
agreements specified in Section 3.02(b); and
(e) At the request of the Assignee, each of the Assignors agree
to execute any consents, agreements, waivers, approvals, requests, or
other instruments or documents necessary or desirable to give effect to
the agreements specified in Section 3.02(c).
Section 3.03 Payments on Assigned Interest.
(a) The Assignors, the Assignee and Borrower (to the extent
required) agree, that:
(i) the Assignee Subordinated Indebtedness is subordinate
in right of payment, to the extent and in the manner provided
in this Agreement, to the prior payment in full of all
principal of the BMO/Soc-Gen Senior Indebtedness (whether
outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed);
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(ii) the Borrower may not, except as otherwise agreed to in
writing by Assignors and Assignee, make any payment (whether by
redemption, purchase, retirement, defeasance, set-off or
otherwise) upon or in respect of the Assignee Subordinated
Indebtedness, until all principal and other obligations with
respect to the BMO/Soc-Gen Senior Indebtedness has been paid in
full:
(iii) the Borrower may commence payments on, and
distributions in respect of, the Assignee Subordinated
Indebtedness upon payment in full of all BMO/Soc-Gen Senior
Indebtedness (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed).
(iv) Notwithstanding the foregoing, and provided that no
Event of Default has occurred and is continuing, the Borrower
may pay to the SCI Lenders, and the SCI Lenders may receive and
retain, all amounts due and payable to the SCI Lenders for
accrued interest on the SCI Loans and other fees due to SCI in
accordance with Sections 3.02 and 4.02 of the Current Credit
Agreement and the SCI Fee Letter.
(v) Upon any payment or distribution of property or
securities to creditors of the Borrower in a liquidation or
dissolution of such person or its property, or in an assignment
for the benefit of creditors or any marshaling of its assets
and liabilities:
(A) each of the Assignors shall be entitled to receive
payment in full of all BMO/Soc-Gen Senior Indebtedness
before the Assignee shall be entitled to receive any
payment with respect to the Assignee Subordinated
Indebtedness; and
(B) until the BMO/Soc-Gen Senior Indebtedness is paid
in full, any payment or distribution to which the Assignee
would be entitled shall be made to each of the Assignors
for its benefit.
(C) under the circumstances described in this clause
(iv), the Borrower or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person making
any payment or distribution of cash or other property or
securities is authorized or instructed to make any payment
or distribution to which the Assignee would otherwise be
entitled (other than securities that are subordinated at
least to the same extent as the Assignee Subordinated
Indebtedness) directly to each of the Assignors for its
benefit to the extent necessary to pay all BMO/Soc-Gen
Senior Indebtedness in full, after giving effect to any
concurrent payment, distribution or provision therefor to
or for the Assignors.
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(b) The foregoing provisions of this Section 3.03 shall not
impair or prohibit the rights of the Assignee to receive payments (i)
through conversion of any of the Assignee Subordinated Indebtedness to
equity as provided in the Equity Conversion Agreement or (ii) in the
form of other equity securities or additional subordinated debt that is
subordinated to the BMO/Soc-Gen Senior Indebtedness in accordance with
the terms substantially similar to the terms of this Agreement.
Section 3.04 Payments Received or Made in Violation of this Agreement.
In the event the Assignee shall receive any payment or distribution on account
of the Assignee Subordinated Indebtedness which it is not entitled to receive
under the provisions of Section 3.03, the Assignee will hold any amount so
received in trust for the Assignors and will forthwith turn over such payment to
the Assignors in the form received by it (together with any necessary
endorsement) to be applied to the BMO/Soc-Gen Senior Indebtedness.
Section 3.05 Assignee Funding. Assignors, Assignee and Borrower agree
that, subsequent to the Assignment Date, (i) Assignors shall have no further
obligation to make Loans under the Current Credit Agreement; and (ii) Assignee
shall have the sole responsibility to meet any obligation that may arise under
the Credit Agreement to make Loans under the Credit Agreement, provided,
however, Assignee's obligations to make Loans under the Current Credit Agreement
shall not exceed its Commitment.
ARTICLE 4
Conditions Precedent.
Section 4.01 Conditions Precedent. The effectiveness of the sale,
assignment and transfer of the Assigned Interest contemplated hereby is subject
to the satisfaction of each of the following conditions precedent:
(a) the execution and delivery of this Agreement by the
Assignors and the Assignee;
(b) the receipt by the Assignors of the payment required to be
made by the Assignee under Section 2.03 hereof;
(c) the acknowledgment by the Agent and the Borrower
contemplated by Section 2.05 hereof;
(d) the execution and delivery of the Notes contemplated by
Section 2.06 hereof;
(e) the satisfaction of the conditions of the Initial Funding
set forth in Section 6.01 of the Current Credit Agreement; and
(f) the execution and delivery of the Current Credit Agreement.
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ARTICLE 5
Representations and Warranties.
Section 5.01 Representations and Warranties of the Assignors.
(a) Each of the Assignors represents and warrants for itself
that:
(i) it has all requisite power and authority, and has taken
all action necessary to execute and deliver this Agreement and
to fulfill its obligations under, and consummate the
transactions contemplated by, this Agreement;
(ii) the execution, delivery and compliance with the terms
hereof by it and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any
Governmental Requirement applicable to it;
(iii) this Agreement has been duly executed and delivered
by it and constitutes the legal, valid and binding obligation
of such Assignor, enforceable against it in accordance with its
terms;
(iv) all approvals and authorizations of, all filings with
and all actions by any Governmental Authority necessary for the
validity or enforceability of its obligations under this
Agreement have been obtained;
(v) it has good title, to and is the sole legal and
beneficial owner of, the Assigned Interest, free and clear of
all Liens, claims, participations or other charges of any
nature whatsoever and has the right to transfer to the
Assignee, the rights being transferred; and
(vi) the amounts set forth on Schedule A and Schedule B by
each of the respective Assignors as its portion of the Assigned
Interest and Retained Interest is true and correct.
(b) Each of the Assignors does not (i) make any representation
or warranty or assume any responsibility with respect to any
statements, warranties or representations made (x) by the Borrower in
or in connection with the Credit Agreement or (y) with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto, or any
collateral or the legality, validity, perfection or priority of any
Lien granted or purported to be granted pursuant to any Security
Instrument, or (ii) make any representation or warranty or assume any
responsibility with respect to the financial condition of Borrower or
any other obligor or the performance or observance by Borrower or any
other obligor of any of their respective obligations under the Credit
Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto.
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Section 5.02 Representations and Warranties of the Assignee. The
Assignee represents and warrants to each of the Assignors as follows:
(a) it has all requisite power and authority, and has taken all
action necessary to execute and deliver this Agreement and to fulfill
its obligations under, and consummate the transactions contemplated by,
this Agreement;
(b) the execution, delivery and compliance with the terms
hereof by Assignee and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any Governmental
Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and
all actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained; and
(e) the Assignee has fully reviewed the terms of the Credit
Agreement and the other Loan Documents and has independently and
without reliance upon the Assignors, and based on such information as
the Assignee has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
ARTICLE 6
Miscellaneous.
Section 6.01 Notices. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers,
requests or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telex or telecopy) to the intended recipient
at its "Address for Notices" specified below its name on the signature pages
hereof or, as to either party, at such other address as shall be designated by
such party in a notice to the other party.
Section 6.02 Amendment, Modification or Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in writing
signed by the Assignors and the Assignee, and consented to by the Agent.
Section 6.03 Further Assurances. The Assignors and the Assignee hereby
agree to execute and deliver such other instruments, and take such other
actions, as either party may reasonably request to correct any errors or as
otherwise required to accomplish the transactions contemplated by this
Agreement.
Section 6.04 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted
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assigns. The representations and warranties made herein by the Assignee are also
made for the benefit of the Agent and the Borrower, and the Assignee agrees that
the Agent and the Borrower are entitled to rely upon such representations and
warranties.
Section 6.05 Assignments. None of the parties hereto may assign any of
its rights or obligations hereunder except in accordance with the terms of the
Credit Agreement.
Section 6.06 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
Section 6.07 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be identical and all of which, taken
together, shall constitute one and the same instrument, and each of the parties
hereto may execute this Agreement by signing any such counterpart.
Section 6.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Texas.
Section 6.09 Expense. To the extent not paid by the Borrower pursuant
to the terms of the Credit Agreement, each party hereto shall bear its own
expenses in connection with the execution, delivery and performance of this
Agreement.
Section 6.10 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed and delivered as of the date first above
written.
ASSIGNORS
BANK OF MONTREAL
By:
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Name: Thomas E. McGraw
Title: Director
Address for Notices:
700 Louisiana Street, Suite 4400
Houston, Texas 77002
Telecopier No.: (713) 223-0477
Telephone No.: (713) 223-4400
Attention: Thomas E. McGraw
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
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Name: Mark A. Cox
Title: Director
Address for Notices:
1111 Bagby Street, Suite 2020
Houston, Texas 77002
Telecopier No: (713) 650-0824
Telephone No: (713) 759-6315
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ASSIGNEE
SHELL CAPITAL INC.
By:
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Name: Robert L. Roberts
Title: Vice President
Address for Notices:
910 Louisiana Street, Suite 5000
Houston, Texas 77002-4916
Telecopier No.: (713) 241-5222
Telephone No.: (713) 241-4130
Attention: Robert L. Roberts
BORROWER:
BRIGHAM OIL & GAS, L.P.
By: Brigham, Inc., General Partner
By:
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Name: Curtis F. Harrell
Title: Chief Financial Officer
BANK OF MONTREAL, as Agent
By:
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Name: Thomas E. McGraw
Title: Director
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SCHEDULE A
Principal Amount Loan Commitment
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Bank of Montreal $ 13,892,323.85 $ 26,461,554.62
Societe Generale, Southwest Agency $ 7,107,676.15 $ 13,538,445.38
SCH. A, PAGE 1
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SCHEDULE B
Retained Loan
Principal Amount Commitment
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Bank of Montreal $ 23,153,830.00 $ 23,153,830.00
Societe Generale, Southwest Agency $ 11,846,170.00 $ 11,846,170.00
SCH. B, PAGE 1