FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This First Amendment to Third Amended and Restated Revolving Credit
Agreement dated November 1, 2002 (the "First Amendment"), by and among ENERGY
PARTNERS, LTD., a Delaware corporation (the "Parent Borrower"), EPL OF
LOUISIANA, L.L.C., a Louisiana limited liability company, and DELAWARE EPL OF
TEXAS, LLC, a Delaware limited liability company (collectively called
"Subsidiary Borrower") (the Parent Borrower and Subsidiary Borrower are herein
collectively called "Borrower"), BANK ONE, NA, a national banking association
("Bank One") as a Bank, as the LC Issuer and as Administrative Agent for the
Banks (in such latter capacity and together with its successors and permitted
assigns in such capacity, the "Administrative Agent"), and each of the
undersigned Banks, shall be deemed to have become effective as of July 28, 2003
("Effective Date") upon its execution by Borrower and the Required Banks,
including Administrative Agent.
W I T N E S S E T H:
WHEREAS, Borrower, the Banks, the LC Issuer and the Administrative Agent
are parties to that certain Third Amended and Restated Credit Agreement dated
November 1, 2002 (the "Credit Agreement"); and
WHEREAS, Borrower and the Required Banks, including Administrative Agent,
desire to amend the Credit Agreement as stated herein;
NOW, THEREFORE, in consideration of the premises and for Ten Dollars
($10.00) and other good and valuable consideration received by each party
hereto, and each intending to be legally bound hereby, the parties agree as
follows:
I. Specific Amendments to Credit Agreement.
Article I, DEFINITIONS, of the Credit Agreement is hereby amended by
adding the following definitions thereto:
"First Amendment" means the First Amendment dated effective as of July 28,
2003 to the Credit Agreement.
"Indenture" means the indenture as described in the Senior Unsecured Note
Offering Circular, with any material differences between the provisions of
the indenture as described in the Senior Unsecured Note Offering Circular
and the final form of the indenture being subject to the approval of the
Required Banks, in their sole discretion.
"Senior Unsecured Notes" means those certain unsecured senior obligations
of the Parent Borrower in the maximum aggregate principal amount of
$150,000,000.00, all as more fully described in the Senior Unsecured Note
Offering Circular.
"Senior Unsecured Note Offering Circular" means that certain Preliminary
Confidential Offering Circular dated July 18, 2003, that summarizes the
material provisions of the indenture to be applicable to the unsecured
senior obligations to be issued by the Parent Borrower in the maximum
aggregate principal amount of $150,000,000.00, maturing no earlier than
July 1, 2010, and bearing interest at the rate of not greater than nine
percent (9.0%) per annum; with any material modifications made to said
Preliminary Confidential Offering Circular in the Indenture being subject
to the approval of the Required Banks, in their sole discretion.
Article I, DEFINITIONS, of the Credit Agreement is hereby further amended
by revising the following definition to read:
"EBITDAX" means, for any reporting period, Parent Borrower's and its
Subsidiaries' net income on a consolidated basis before deductions for
interest expense, taxes, depreciation, depletion, amortization, dry hole
costs, exploration expenses, and non-cash compensation expense.
Article I, DEFINITIONS, of the Credit Agreement is hereby further amended
by revising subparagraph (J) of the definition of "Permitted Indebtedness" to
read as follows:
(J) The Indebtedness evidenced by the Buyer Senior Subordinated Notes, not
to exceed at any time an outstanding principal balance thereunder of
Thirty-Eight Million, Five Hundred Thousand Dollars ($38,500,000.00),
subject to the provisions set forth in Section 5.35, and terminating in
any event not later than 5:00 PM Central Standard Time on the seventh day
after the closing of the Senior Unsecured Notes, provided, however, that
if Parent Borrower timely calls the Buyer Senior Subordinated Notes for
payment, but any holder of Buyer Senior Subordinated Notes fails to
present its Notes for payment within five (5) days after the closing of
the Senior Unsecured Notes, then the Indebtedness evidenced by any such
Buyer Senior Subordinated Notes that have not been presented for payment
shall continue to be Permitted Indebtedness until 5:00 p.m. Central
Standard Time on the second Business Day after such Notes are presented
for payment by the holder thereof so long as Parent Borrower is making
reasonable commercial efforts to cause the holder of such Notes to present
them for payment;
Article I, DEFINITIONS, of the Credit Agreement is hereby further amended
by deleting the word "and" following subparagraph (L) of the definition of
"Permitted Indebtedness," adding "; and" in place of the period after
subparagraph (M) thereof, and adding thereto the following new subparagraph (N):
(N) The Indebtedness evidenced by the Senior Unsecured Notes, subject to
the provisions set forth in Section 5.35, together with any guaranty by
Borrower's Subsidiaries of the Indebtedness evidenced by the Senior
Unsecured Notes.
Section 2.06, Borrowing Base Determination, of the Credit Agreement is
hereby amended by replacing the first four sentences thereof with the following
text:
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The Borrowing Base in effect from the date of the First Amendment until
October 31, 2003, is One Hundred Million Dollars ($100,000,000.00), unless
redetermined prior to October 31, 2003, in accordance with the further
provisions of this Section 2.06. Upon the issuance of the Senior Unsecured
Notes the Borrowing Base shall automatically reduce to Sixty Million
Dollars ($60,000,000.00), and the Borrowing Base shall continue at that
reduced level until again redetermined as set forth in this Agreement. If
the Borrowing Base is not automatically reduced pursuant to the preceding
sentence or otherwise redetermined pursuant to this Section 2.06 on or
before October 31, 2003, then on November 1, 2003, the Borrowing Base
shall automatically reduce to Ninety Million Dollars ($90,000,000.00), and
it shall continue at that level until redetermined as set forth in this
Agreement. On or before each October 1 and April 1 until the Facility
Termination Date, beginning October 1, 2003, the Borrower shall furnish to
the Administrative Agent a report, in form and substance satisfactory to
the Administrative Agent, which report shall set forth, as of each
preceding July 1 or January 1, as applicable, the Proved Reserves
attributable to the Borrowing Base Oil and Gas Properties
Section 5.03, Quarterly Unaudited Financial Statements, of the Credit
Agreement is hereby amended by substituting the words "sixtieth (60th)" in place
of the words "forty-fifth (45th)" that appear therein.
Section 5.03, Quarterly Unaudited Financial Statements, is hereby further
amended and Section 5.04, Annual Audited Financial Statements is hereby amended
by deleting from each such section the words "and consolidating".
Article V, AFFIRMATIVE COVENANTS, of the Credit Agreement is hereby
amended by adding the following new Sections thereto:
Section 5.35 Issuance of Senior Unsecured Notes and Payment of Buyer
Senior Subordinated Notes. Parent Borrower shall issue the Senior
Unsecured Notes, if at all, on or before September 30, 2003. Promptly
after the issuance of such Senior Unsecured Notes, and in any event not
later than 5:00 PM Central Standard Time on the seventh day thereafter,
Parent Borrower shall use a portion of the proceeds thereof to redeem in
full the unpaid principal and all accrued, unpaid interest due on the
Buyer Senior Subordinated Notes.
Section 5.36 Notification of Correspondence. Immediately notify
Agent of all correspondence received from the holders of the Senior
Unsecured Notes or their representatives that declare or address in any
respect the existence or alleged existence of any default or event of
default relating to the Senior Unsecured Notes or the Indenture.
Article VI, NEGATIVE COVENANTS, of the Credit Agreement is hereby amended
by adding the following new Sections thereto:
Section 6.19 Notification of Payments to Senior Unsecured Note
Holders. Make principal payments to the holders of Senior Unsecured Notes
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without having first given advance written notice thereof to Agent,
accompanied by a certificate that such payments will not result in any
Event of Default or Unmatured Event of Default under the Credit Agreement.
III. Reaffirmation of Representations and Warranties. To induce the Banks
to enter into this First Amendment, the Borrower hereby reaffirms, as of the
date hereof, that its representations and warranties contained in Article IV of
the Credit Agreement, as amended hereby, and in all other documents executed
pursuant thereto are true and correct as though such representations and
warranties had been made on such date, except such as are expressly limited to a
prior date, which shall be true and correct as of such prior date, and
additionally represents and warrants as follows:
A. The execution and delivery of this First Amendment and the
performance by the Borrower of its obligations under this First Amendment
are within the Borrower's power, have been duly authorized by all
necessary corporate action, have received all necessary governmental
approval (if any shall be required), and do not and will not contravene or
conflict with any provision of law or of the charter or by-laws of the
Borrower or of any agreement binding upon the Borrower.
B. The Credit Agreement, as amended by this First Amendment,
represents the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its respective terms
subject as to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally.
C. No Event of Default or Unmatured Event of Default has occurred
and is continuing as of the date hereof.
IV. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Credit Agreement shall have the same meanings herein.
V. Reaffirmation of Credit Agreement. This First Amendment shall be deemed
to be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement herein and in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby.
VI. Entire Agreement. The Credit Agreement, as hereby amended, embodies
the entire agreement between the Borrower and the Banks and supersedes all prior
proposals, agreements and understandings relating to the subject matter hereof.
The Borrower certifies that it is relying on no representation, warranty,
covenant or agreement except for those set forth in the Credit Agreement, as
hereby amended, and in the other documents previously executed or executed of
even date herewith.
VII. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. This First Amendment has been entered into
in Harris County, Texas, and it shall be performable for all purposes in Harris
County, Texas. Courts within the State of Texas shall have jurisdiction over
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any and all disputes between the Borrower and the Bank, whether in law or
equity, including, but not limited to, any and all disputes arising out of or
relating to this First Amendment or any other Security Instrument; and venue in
any such dispute whether in federal or state court shall be laid in Harris
County, Texas.
VIII. Severability. Whenever possible each provision of this First
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this First Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this First Amendment.
IX. Execution in Counterparts. This First Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement.
X. Section Captions. Section captions used in this First Amendment are for
convenience of reference only, and shall not affect the construction of this
First Amendment.
XI. Successors and Assigns. This First Amendment shall be binding upon the
Borrower and the Banks and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Banks, and the respective
successors and assigns of the Banks.
XII. Non-Application of Chapter 346 of Texas Finance Codes. In no event
shall Chapter 346 of the Texas Finance Code (which regulates certain revolving
loan accounts and revolving tri-party accounts) apply to this Credit Agreement
as hereby further amended or any other Loan Documents or the transactions
contemplated hereby.
XIII. NOTICE. THIS FIRST AMENDMENT TOGETHER WITH THE CREDIT AGREEMENT 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. THE FOLLOWING PAGES 6
AND 7 ARE THE SIGNATURE PAGES.]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the day set forth below their respective signatures, but
effective as of the Effective Date.
BORROWER:
ENERGY PARTNERS, LTD.
By: /s/ SUZANNE V. BAER
------------------------------------
Suzanne V. Baer
Executive Vice President and
Chief Financial Officer
Date: , 2003
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EPL OF LOUISIANA, L.L.C.
By: /s/ SUZANNE V. BAER
------------------------------------
Suzanne V. Baer
Executive Vice President and
Chief Financial Officer
Date: , 2003
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DELAWARE EPL OF TEXAS, LLC
By: /s/ GARY L. HALL
------------------------------------
Gary L. Hall
President
Date: , 2003
------------------
ADMINISTRATIVE AGENT, LC ISSUER AND
BANK:
BANK ONE, TEXAS, N.A.
By: /s/ THOMAS E. BOTH
------------------------------------
Thomas E. Both
Director, Capital Markets
Date: July 24, 2003
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SYNDICATION AGENT AND BANK:
JP MORGAN CHASE BANK
(formerly known as The Chase Manhattan
Bank)
By: /s/ ROBERT C. MERTENSOTTO
------------------------------------
Name: Robert C. Mertensotto
----------------------------------
Title: Managing Director
---------------------------------
Date: July 28, 2003
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DOCUMENTATION AGENT AND BANK:
BNP PARIBAS
By: /s/ BRIAN M. MALONE
------------------------------------
Name: Brian M. Malone
----------------------------------
Title: Managing Director
---------------------------------
Date: July 25, 2003
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BANKS:
WHITNEY NATIONAL BANK
By: /s/ KEVIN P. RAFFERTY
------------------------------------
Name: Kevin P. Rafferty
----------------------------------
Title: Senior Vice President
---------------------------------
Date: July 28, 2003
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ROYAL BANK OF CANADA
By: /s/ LORNE GARTNER
------------------------------------
Name: Lorne Gartner
----------------------------------
Title: Vice President
---------------------------------
Date: July 28, 2003
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WELLS FARGO BANK TEXAS,
NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
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Date: , 2003
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