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EXHIBIT 4.1.3
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein
called this "Amendment") made as of the 5th day of March, 1999 by and among
Inland Production Company, a Texas corporation, (herein called "Borrower"),
Inland Resources Inc., a Washington corporation (herein called "Parent"), and
ING (U.S.) Capital LLC (successor to ING (U.S.) Capital Corporation), as Agent
(herein called "Agent") and as a Bank, and the other Banks,
W I T N E S S E T H:
WHEREAS, Borrower, Parent, Agent, and the Banks have entered into that
certain Amended and Restated Credit Agreement dated as of September 11, 1998,
(as amended, restated, or supplemented to the date hereof, the "Amended
Agreement"), for the purposes and consideration therein expressed, pursuant to
which the Banks became obligated to make loans to Borrower as therein provided;
WHEREAS, Borrower, Parent, Trust Company of the West, in its capacity
as noteholder ("Noteholder"), and TCW Asset Management Company, in its
capacities as Agent and Collateral Agent (in its capacity as Agent, "Tamco"),
have entered into that certain Amended and Restated Credit Agreement dated as
of September 11, 1998 (as amended, restated, or supplemented to the date
hereof, the "Amended TCW Agreement");
WHEREAS, Borrower, Parent, Noteholder, Tamco, Banks and Agent have
entered into that certain Amended and Restated Intercreditor Agreement dated as
of September 11, 1998, as amended, restated, or supplemented to the date
hereof;
WHEREAS, Borrower, Parent and Banks desire to amend the Amended
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Amended Agreement, in
consideration of the loans which may hereafter be made by Banks to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Amended Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Amended Agreement shall have the same meanings whenever
used in this Amendment.
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ARTICLE II.
Amendments to Amended Agreement
Section 2.1. Scheduled Principal Payments. Section 2.8 of the Amended
Agreement is hereby amended to read as follows:
"Section 2.8. Scheduled Principal Payments. Beginning on
June 29, 1999, and on each Quarterly Payment Date thereafter, Borrower
will, in addition to paying any interest then due on the Loans, make a
principal payment in accordance with the following schedule:
Quarterly Amount
Payment Date of Payment
------------ ----------
June 29, 1999 $9,472,222
Sept 29, 1999 $6,222,222
Dec 30, 1999 $6,222,222
Mar 30, 2000 $4,666,666
June 29, 2000 $4,666,666
Sept 28, 2000 $4,666,666
Dec 28, 2000 $4,666,666
Mar 29, 2001 $3,888,889
June 28, 2001 $3,888,889
Sept 27, 2001 $3,888,889
Dec 28, 2001 $3,888,889
Mar 28, 2002 $3,500,000
June 27, 2002 $3,500,000
Sept 27, 2002 $3,500,000
Dec 30, 2002 $3,500,000
Mar 28, 2003 $3,111,114
The principal installments required by this Section 2.8 are in
addition to all other principal payments required by the terms of
this Agreement."
Section 2.2. Facility for LC Obligations. Section 2.17 of the Amended
Agreement is hereby added to read as follows:
"Section 2.17. Minimum LC Obligations. At no time during the
Commitment Period may the aggregate amount of Loans outstanding exceed
the remainder of (i) the Borrowing Base minus (ii) $1,000,000, such
$1,000,000 to be reserved solely for LC Obligations."
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Section 2.3. Requesting Letters of Credit. Section 2.12 of the Amended
Agreement is hereby amended by deleting the first two sentences thereof, and
insert the following in place thereof:
"Borrower must make written application for any Letter of
Credit at least three Business Days before the date on which Borrower
desires such Letter of Credit to be issued, by delivering such
application to Agent. Agent shall promptly deliver such application to
LC Issuer."
Section 2.4. Additional Covenant. Section 6.8 of the Amended Agreement
is hereby added as follows:
"Section 6.8. LockBox Management. Parent and Borrower shall,
and shall cause Inland Refining to, direct all proceeds from the sales
of crude oil and natural gas ("E&P revenue") and petroleum products
("refining revenue") to be deposited into one or more lockboxes in the
name of Parent, Borrower or Inland Refining, as the case may be, and
administered by U.S. Bank National Association subject to a first
priority security interest securing the Obligations. Parent and
Borrower agree that if the proceeds of any E&P revenue or refining
revenue shall be received by it or by any other, Parent shall as
promptly as possible deposit such proceeds into the lockbox account,
such account to be administered by and held at U.S. Bank, National
Association referred to below. Until so deposited, all such E&P
revenue and refining revenue proceeds shall be held in trust by Parent
and shall not be commingled with any other funds or property of
Parent."
Section 2.5. Borrowing Base. At the effective date of this Amendment,
and continuing until the next redetermination pursuant to the Credit Agreement
the borrowing base shall be 73,250,000."
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when Banks shall have received,
at Agent's office,
(i) a counterpart of this Amendment executed and delivered by
Borrower,
(ii) a certificate of a duly authorized officer of Borrower
to the effect that all of the representations and warranties set forth
in Article IV hereof are true and correct at and as of the time of
such effectiveness,
(iii) evidence acceptable to Agent in its sole discretion
that all of the conditions of effectiveness to the First Amendment of
the Amended TCW Agreement in the form of Exhibit 1 hereto have been
satisfied,
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(iv) lockbox agreement executed and delivered by Parent,
Borrower and Refining, form and substance acceptable for U.S. Bank
National Association and Agent,
(v) Warrants issued to each Bank to purchase its percentage
share of Fifty-thousand (50,000) shares of common stock of Inland
Resources, Inc., in the form of Exhibit 2 hereto,
(vi) Registration rights agreement in the form of Exhibit 3
hereto, and
(vii) a First Amendment to the Amended and Restated
Intercreditor Agreement in the form of Exhibit 4 hereto executed by
all parties named therein.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In order to
induce Banks to enter into this Amendment, Borrower represents and warrants to
Banks that:
(a) The representations and warranties contained in Article V
of the Amended Agreement are true and correct at and as of the time of
the effectiveness hereof.
(b) Borrower is duly authorized to execute and deliver this
Amendment and the other Amendment Documents and is and will continue
to be duly authorized to borrow and to perform its obligations under
the Amended Agreement. Borrower has duly taken all action necessary to
authorize the execution and delivery of this Amendment and the other
Amendment Documents and to authorize the performance of the
obligations of Borrower hereunder and thereunder.
(c) The execution and delivery by Borrower of this Amendment
and the other Amendment Documents, the performance by Borrower of its
obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby do not and will not
conflict with any provision of law, statute, rule or regulation or of
the articles of organization and regulations of Borrower, or of any
material agreement, judgment, license, order or permit applicable to
or binding upon Borrower, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of Borrower.
Except for those which have been duly obtained, no consent, approval,
authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by
Borrower of this Amendment and the other Amendment Documents or to
consummate the transactions contemplated hereby and thereby.
(d) When duly executed and delivered, each of this Amendment,
the Amended Agreement and the other Amendment Documents will be a
legal and binding instrument and agreement of Borrower, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency
and similar laws applying to creditors' rights generally and by
principles of equity applying to creditors' rights
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generally. No setoff, defense or counterclaim exists with respect to
any of the Obligations or otherwise with respect to any of the
obligations or duties of any Restricted Person under or in respect of
any of the Loan Documents.
(e) The unaudited quarterly financial statements of Borrower
dated as of December 31, 1998 fairly present the financial position at
such date and the statement of operations and the changes in financial
position for the period ending on such date for Borrower. Copies of
such financial statements have heretofore been delivered to Banks.
Since December 31, 1998, no material adverse change has occurred in
the financial condition or businesses of Borrower.
ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements; Release. The Amended Agreement
as hereby amended is hereby ratified and confirmed in all respects. Any
reference to the Note in any other Loan Document shall be deemed to include the
Notes issued and delivered pursuant to this Amendment. The execution, delivery
and effectiveness of this Amendment and the other Amendment Documents shall
not, except as expressly provided herein or therein, operate as a waiver of any
right, power or remedy of Banks under the Amended Agreement or any other Loan
Document nor constitute a waiver of any provision of the Amended Agreement or
any other Loan Document. As further consideration and to induce the
Administrative Agent and the Lenders to enter into and grant the accommodations
contained in this Fifth Amendment, the Borrower hereby also compromises,
releases and discharges the Lenders, the Administrative Agent and their
respective directors, officers, shareholders, agents, employees,
representatives, attorneys, and their respective heirs, legal representatives,
successors and assigns (collectively, the "Lending Parties") from any and all
claims, demands, causes of action, remedies, suits, judgments, damages,
expenses and liabilities (collectively, "Claims") of any nature whatsoever,
whether now know, suspected or claimed, whether arising under common law, in
equity, or under statute, which the Borrower has against the Lending Parties
which may have arisen at any time on or prior to the date hereof in connection
with, arising out of or related to the Loans, the Credit Agreement and all
Security Instruments executed in connection therewith, or the enforcement or
attempted enforcement by the Lenders or the Administrative Agent of any of
their rights, remedies, or recourse related thereto.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the issuance and delivery of the Notes, and shall further survive
until all of the Obligations are paid in full. All representations, warranties,
acknowledgments and agreements contained in Section 9.1 of the Amended
Agreement are hereby reconfirmed on and as of the date hereof. All statements
and agreements contained in any certificate or instrument delivered by Borrower
hereunder or under the Amended Agreement to Banks shall be deemed to constitute
representations and warranties by, or agreements and covenants of, Borrower
under this Amendment and under the Amended Agreement.
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Section 5.3. Loan Documents. This Amendment and the other Amendment
Documents are each a Loan Document, and all provisions in the Amended Agreement
pertaining to Loan Documents apply hereto and thereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 5.5. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT, 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 AGREEMENT OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
INLAND PRODUCTION COMPANY
By:
-------------------------
Bill I. Pennington
Chief Financial Officer
INLAND RESOURCES INC.
By:
-------------------------
Bill I. Pennington
Chief Financial Officer
ING (U.S.) CAPITAL LLC (successor to ING
(U.S) Capital Corporation), as a Bank and
as Agent
By:
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
MEESPIERSON CAPITAL CORP.
By:
Name:
Title:
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CONSENT AND AGREEMENT
Pursuant to the terms of that certain Amended and Restated
Intercreditor Agreement dated September 11, 1998, among Borrower, Parent,
Agent, the Banks, the Noteholder named therein, and the undersigned Agent
Noteholder, the undersigned hereby consent to the foregoing First Amendment to
Amended and Restated Credit Agreement:
Agent Noteholder: TCW ASSET MANAGEMENT COMPANY, a California
corporation, as Investment Manager under that
certain Agreement dated as of June 13, 1994,
between TCW Asset Management and Morgan Stanley
Group, Inc.
By:
-------------------------
Art Carlson
Managing Director
By:
-------------------------
Marc MacAluso
Senior Vice President
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CONSENT AND AGREEMENT
Parent and Inland Refining hereby consent to the provision of this
Amendment and the transactions contemplated herein, and hereby ratify and
confirm their respective Guaranty dated as of September 11, 1998, made by them
for the benefit of Agent, and agree that their obligations and covenants
thereunder are unimpaired hereby and shall remain in full force and effect.
INLAND RESOURCES, INC.
By:
----------------------------
Bill I. Pennington
Chief Financial Officer
INLAND REFINING, INC.
By:
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Bill Fink
President