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EXHIBIT 10(d)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of July 14, 1995
(herein called this "Amendment"), is entered into by and among Alexander Energy
Corporation, an Oklahoma corporation (herein called the "Borrower"),the various
financial institutions as are or may become parties hereto (herein collectively
called the "Lenders"), and Canadian Imperial Bank of Commerce, acting through
its New York Agency as agent (in such capacity, including its successors in
such capacity, the "Agent") for the Lenders. Terms defined in the Credit
Agreement (as hereinafter defined) are used herein with the same meanings as
given them therein, unless the context otherwise requires.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Agent have
heretofore entered into a certain Credit Agreement, dated as of November 14,
1994 (such agreement herein called the "Credit Agreement"); and
WHEREAS, the Borrower and the Lenders now desire to amend the Credit
Agreement in certain respects, as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower, the Lenders and the Agent hereby
agree as follows:
SECTION 1. Amendment of Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended as follows;
(a) The definition of "Capital Expenditures" is amended and
restated to read as follows:
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of the
Borrower and its Subsidiaries for fixed or capital assets made during
such period which, in accordance with GAAP, would be classified as
capital expenditures, but excluding any capitalized general and
administrative expenses and capitalized interest for such period; and
(b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period.
(b) The definition of "Interest Period" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the date
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"March 1, 1995" from each of clauses (a) and (e) of such definition and
inserting in lieu thereof in each case the date "October 3, 1995."
SECTION 2. Amendment Of Section 2.7. Section 2.7 of the Credit
Agreement is hereby amended by adding the following paragraph thereto:
"The Borrower shall have the right to request a
redetermination of the Borrowing Base by the Agent and the
Required Lenders (or in the case of an increase in the
Borrowing Base, all the Lenders) as of any time designated by
the Borrower but no more than one time during the period from
the Effective Date to the Stated Maturity Date. Such request
for a redetermination of the Borrowing Base shall be made to
the Agent in writing and shall specify the date as of which
such redetermination is to be made (which date shall be no
more than 90 days before the delivery of such request) and
shall be accompanied by payment in full of the redetermination
fee as set forth in Section 3.3.3. Such redetermination shall
be based on the latest reports delivered pursuant to Section
2.6 and/or upon other information in form and substance
acceptable to the Lenders actually delivered to the Agent and
the Lenders prior to or concurrently with such request;
provided, however, that the Borrower shall also deliver to
the Agent and the Lenders, and the Agent and the Lenders
shall base their redetermination of the Borrowing Base on, any
updated engineering, production and operating data and other
information with respect to the Borrowing Base Properties as
any Lender or the Agent may reasonably request. Any
discretionary redetermination of the Borrowing Base pursuant
to this Section 2.7 shall be made by the Agent and the Lenders
within 30 days of receipt of such request and of any
information requested by the Agent and any Lender, in the same
manner and in accordance with the procedures and standards set
forth in Section 2.6."
SECTION 3. Addition to Section 3.3.3. Section 3.3 of the Credit
Agreement is hereby amended by adding thereto the following Section 3.3.3:
"SECTION 3.3.3. Redetermination Fee. As a condition
to the redetermination of the Borrowing Base requested by the
Borrower pursuant to the
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second paragraph of Section 2.7, the Borrower agrees to pay to
the Agent for its own account, the redetermination fee set
forth in the Fee Letter."
SECTION 4. Amendment of Section 7.2.4. Section 7.2.4 of the Credit
Agreement is hereby amended as follows:
(a) clause (b) of Section 7.2.4 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(b) Its Interest Expense Coverage Ratio for the last day of
the Fiscal Quarters shown below to be less than the ratio set forth
opposite such Fiscal Quarter below:
Fiscal Quarters Ending: Ratio
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June 30, 1995 through
December 31, 1995 3.0 to 1.0
March 31, 1996 and June 30, 1996 3.5 to 1.0
September 30, 1996 and thereafter 4.0 to 1.0"
(b) Clause (c) of Section 7.2.4 of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
"(c) Its Current Ratio for any Fiscal Quarter as of the last
day of such Fiscal Quarter to be less than the ratio set forth
opposite such Fiscal quarter below:
Fiscal Quarters Ending: Ratio
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December 31, 1994 through
March 31, 1995 1.0 to 1.0
June 30, 1995 .85 to 1.0
September 30, 1995 and
thereafter 1.0 to 1.01"
SECTION 5. Waiver. Each of the Lenders hereby waives any Default or
Event of Default existing solely as a result of Borrower's failure to comply
with the provisions of Section 7.2.4 (b) with respect to the Interest Expense
Coverage Ratio during the Fiscal Quarter ending March 31, 1995; provided that,
nothing herein shall be construed to be a waiver of any Default or Event of
Default with respect to such provisions continuing after such date or any other
Default or Event of
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Default. Nothing herein shall be construed Lo waive any other provision of the
Credit Agreement or to require any similar or dissimilar waiver to be granted
hereafter.
SECTION 6. Representations and Warranties. To induce the Lenders and
the Agent to enter into this Amendment, the Borrower hereby reaffirms, as of
the date hereof, its representations and warranties contained in Article VI of
the Credit Agreement (except to the extent such representations and warranties
(i) relate solely to an earlier date, (ii) relate to properties and assets,
including Oil and Gas Properties, any Obligor has sold, transferred, abandoned,
released or otherwise disposed of after the Effective Date of the Credit
Agreement, with the Lenders' consent or in the ordinary course of such
Obligor's business or (iii) have been made inaccurate because of the merger of
any Obligor into the Borrower) and additionally represents and warrants as
follows:
(a) The execution, delivery and performance of this
Amendment by the Borrower are within the Borrower's corporate powers,
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
contractual restriction, law or governmental regulation or court
decree or order binding on the Borrower or the Organic Documents of
the Borrower, or result in, or require the creation or imposition of,
any Lien on any of the Borrower's properties;
(b) This Amendment is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms subject to the application of equitable
principles and subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar statutes, judicial
decisions or rules of law affecting creditors rights generally; and
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or
performance by the Borrower of this Amendment.
SECTION 7. Conditions Precedent; Effectiveness. The effectiveness of
this Amendment is conditioned upon receipt by the Agent of (i) counterparts
hereof executed by the Borrower and each of the Lenders, (ii) a letter
agreement amending the Fee Letter in form and substance satisfactory to the
Agent duly executed by the Borrower, (iii) a certificate of a Secretary or
Assistant Secretary
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of the Borrower in form and substance satisfactory to the Agent as to (A)
resolutions of its Board of Directors then in full force and effect authorizing
the execution, delivery and performance of this Amendment, (B) its Articles of
incorporation and By-laws and (C) the incumbency and signatures of those of its
officers authorized to act with respect to this Amendment; and (iv) such other
documents and certificates, if any, as the Agent shall reasonably require.
SECTION 8. Effect of Amendment. This 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 in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Credit Agreement
as amended hereby.
SECTION 9. Choice of Law; Severability. THIS AMENDMENT SHALL BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Whenever possible each provision of this Amendment shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this 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 Amendment.
SECTION 10. Counterpart Execution. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one
and the same instrument, and any party hereto may execute this Amendment by
signing one or more counterparts.
SECTION 11. Binding Effect. This Amendment shall be binding upon the
Borrower, the Lenders and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Lenders and the
Agent and the successors and assigns of the Lenders and the Agent.
SECTION 12. Entire Agreement. This Amendment, together with the
Credit Agreement and the other Loan Documents, constitutes the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersedes any prior agreements, written or oral, with respect
thereto.
THIS WRITTEN AMENDMENT TOGETHER WITH THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
AGREEMENTS OF THE PARTIES.
THERE ARE NO WRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized as of the day and year first above written, to be effective
as of such date.
ALEXANDER ENERGY CORPORATION
By: /S/ DAVID E. GROSE
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Title: Vice President.
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CANADIAN IMPERIAL BANK OF COMMERCE,
acting through its New York Agency,
as Agent
By: /s/ MARYBETH ROSS
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Title: AUTHORIZED SIGNATORY
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LENDER
CIBC INC.
By: /s/ MARYBETH ROSS
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Title: AUTHORIZED SIGNATORY
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July 14, 1995
Canadian Imperial Bank of Commerce
acting through its New York Agency
425 Lexington Avenue
New York, New York 10017
Re: Fee Letter
Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of
November 14, 1994 by and among Alexander Energy Corporation (the "Borrower"),
certain financial institutions therein listed (together with their successors
and assigns, the "Lenders") and Canadian Imperial Bank of Commerce, acting
through its New York Agency, ("you") as Agent for the Lenders (in such capacity
together with its successors in such capacity, the "Agent"), as amended by that
certain First Amendment to Credit Agreement dated as of July 14, 1995 (such
agreement, as so amended and. as it may be further amended, supplemented,
restated or otherwise modified from time to time, the "Loan Agreement").
Reference is also made to that certain letter agreement dated November 14,
1994 (the "Existing Fee Letter") among the Agent, the Borrower, Bradmar
Petroleum Corporation ("Bradmar"), American Natural Energy Corporation
("ANEC"), and Edwards & Leach Oil Company ("Edwards & Leach"; Bradmar, ANEC and
Edwards & Leach each herein called an "Obligor" and collectively the
"Obligors"), The Borrower is the successor by merger of each of the Obligors
into Borrower pursuant to (i) an Agreement and Plan of Merger executed June
30, 1995, by the Borrower and each of the Obligors, (ii) a Certificate of
Ownership and Merger filed June 30, 1995, at the office of the Secretary of
State of Oklahoma, as respects each Obligor, and (iii) a Certificate of
Ownership and Merger filed on June 30, 1995, at the office of the Secretary of
State of Delaware, as respects Edwards & Leach. Unless otherwise defined
herein, capitalized terms used herein shall have the meaning set forth in the
Loan Agreement.
The Borrower hereby agrees that if the Borrower shall request a
redetermination of the Borrowing Base pursuant to the second paragraph of
Section 2.7 of the Loan Agreement, it shall pay to the Agent for its own
account, a non-refundable fee in the aggregate amount of Five Thousand United
States Dollars ($5,000) payable in immediately available funds without set-off
or counterclaim at the account designated by the Agent pursuant to Section 4.7
of the Loan Agreement as a condition precedent to such redetermination.
Such fee is in addition to and not in limitation or satisfaction of
any other fees payable under the Loan Agreement or the Existing Fee Letter,
including without limitation the fees described in Section 3.3.2 of the Loan
Agreement, the commitment fees payable under the Loan Agreement, customary fees
payable with respect to other agencies or financial services provided by the
Agent or any Lender to any of the undersigned (including but not limited to
fees for holding deposits, serving as collateral agent or servicing accounts),
or the reimbursement of
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Canadian Imperial Bank of Commerce
acting through its New York Agency
July 14, 1995
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other fees and expenses (including reasonable legal fees and expenses of the
Agent or any Lender) under the Loan Agreement or any other Loan Document.
This letter agreement supplemented and amends the Existing Fee Letter,
and the Existing Fee Letter, as supplemented and =ended hereby, is hereby
ratified, approved and confirmed in each and every respect. All references to
the Fee Letter in the Loan Agreement Including in Sections 3.3.2 and 3.3.3
thereof) or in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Existing Fee Letter, as supplemented and
amended hereby.
This letter agreement may not be amended or any provision hereof
waived or modified except by an instrument in writing signed by the Borrower
and the Agent. This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Please indicate your agreement with the above provisions by singing below.
Very truly yours,
Borrower
ALEXANDER ENERGY CORPORATION
By: /s/ DAVID E. GROSE
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Name: David E. Grose
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Title: Vice President
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Agreed and Consented to By:
CANADIAN IMPERIAL BANK OF COMMERCE acting
through its New York Agency
By:
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Name:
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Title:
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