Exhibit 99.3
SECOND AMENDMENT TO
AMENDED AND RESTATED SUBORDINATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein
called this "Amendment") is made as of the 28th day of May, 2004, by and among
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BRIGHAM OIL & GAS, L.P., a Delaware limited partnership (the "Borrower"),
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BRIGHAM EXPLORATION COMPANY, a Delaware corporation ("Brigham Exploration"),
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BRIGHAM, INC., a Nevada corporation (the "General Partner"), the lenders party
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to the Agreement from time to time (the "Lenders"), and THE ROYAL BANK OF
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SCOTLAND plc, as Agent (in such capacity, the "Agent").
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W I T N E S S E T H:
WHEREAS, Borrower, Brigham Exploration and General Partner (collectively,
the "Credit Parties"), Agent, and Lenders have entered into that certain Amended
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and Restated Subordinated Credit Agreement dated as of March 21, 2003, which was
amended by that certain First Amendment to Amended and Restated Subordinated
Credit Agreement dated as of December 9, 2003 (collectively, the "Original
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Agreement"), for the purposes and consideration therein expressed, pursuant to
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which Lenders made and became obligated to make loans to Borrower, which loans
are unconditionally and irrevocably guaranteed by Brigham Exploration and
General Partner (collectively, the "Guarantors"), all as therein provided;
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WHEREAS, Credit Parties, Agent, and Lenders desire to amend the Original
Agreement for the purposes described herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders 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. Defined Terms. Unless the context otherwise requires or
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unless otherwise expressly defined herein, the terms defined in the Original
Agreement shall have the same meanings whenever used in this Amendment. As used
herein, the following terms shall have the following meanings:
"Amendment" means this Second Amendment to Amended and Restated
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Subordinated Credit Agreement.
"Credit Agreement" means the Original Agreement as amended by this
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Amendment.
ARTICLE II.
AMENDMENTS
Section 2.1. Definitions.
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The definition of "Total Debt" contained in Section 1.1 of the Original
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Agreement is hereby deleted in its entirety and replaced by the following:
"Total Debt" means all Debt of the Borrower and its Consolidated
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Subsidiaries; excluding however, any redeemable preferred stock that is
permitted to be issued pursuant to Section 6.02(c).
Section 2.2. Calculated Total NPV to Total Debt Ratio. Section 6.25(b)
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of the Original Agreement is hereby deleted in its entirety and replaced by the
following:
"(b) Upon (i) any change to Calculated Total NPV pursuant to a
Scheduled Redetermination or an Interim Redetermination or (ii) the
incurrence of any Debt (other than redeemable preferred stock that is
permitted to be issued pursuant to Section 6.02(c)) by the Borrower or any
of its consolidated Subsidiaries, the Borrower will promptly, but in any
event within fifteen (15) days after any such event, deliver a certificate
of the chief financial officer of the General Partner setting forth the
Total Debt of the Borrower and the Calculated Total NPV, both prior to and
after giving effect to such event, and demonstrating compliance with
Section 6.25(a), provided that no such certificate need be delivered in
connection with any borrowing under the Senior Credit Agreement if
immediately following such borrowing the Borrower remains in compliance
with the covenant set out in Section 6.25(a)."
ARTICLE III.
CONDITIONS TO EFFECTIVENESS OF THE AMENDMENT
Section 3.1. Effective Date. This Amendment shall become effective as
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of the date first above written when Agent shall have received all of the
following:
(a) this Amendment, duly authorized, executed and delivered by the
Credit Parties, Agent, and each Lender, and in form and substance satisfactory
to Agent;
(b) copies, certified as of the date of this Agreement by a
Responsible Officer or the secretary or an assistant secretary of the Borrower
of (A) the resolutions of the applicable governing body of the Borrower
approving this Amendment, (B) the organizational documents of the Borrower (to
the extent the same have changed since copies thereof were delivered in
connection with the Original Agreement), and (C) all other documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Amendment;
(c) certificates of a Responsible Officer or the secretary or an
assistant secretary of the Borrower certifying the names and true signatures of
the officers of the Borrower authorized to sign this Amendment;
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(d) copies, certified as of the date of this Agreement by a
Responsible Officer or the secretary or an assistant secretary of each Guarantor
of (A) the resolutions of the applicable governing body of such Guarantor
approving the Amendment, (B) the organizational documents of such Guarantor (to
the extent the same have changed since copies thereof were delivered in
connection with the Original Agreement), and (C) all other documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Amendment;
(e) a certificate of the secretary or an assistant secretary of
each Guarantor certifying the names and true signatures of officers of such
Guarantor authorized to sign this Amendment, the Security Instruments and the
other Loan Documents to which such Guarantor is a party;
(f) payment of the reasonable fees and disbursements of Chadbourne &
Parke, LLP relating to this Amendment as provided in Section 10.04 of the Credit
Agreement (provided that if such fees and disbursements have not been invoiced
to the Borrower at least one day prior to the delivery of this Amendment, such
payment will not be a condition to the effectiveness hereof and the Borrower
will pay such fees and disbursements promptly after receipt of such an invoice);
and
(g) such other documents as Agent may reasonably request.
ARTICLE IV.
MISCELLANEOUS
Section 4.1. Ratification of Agreements. The Original Agreement as
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hereby amended is hereby ratified and confirmed in all respects. Without in any
way modifying or limiting the foregoing, each of the undersigned Guarantors
hereby (a) consents to the provisions of this Amendment and the transactions
contemplated herein, and (b) ratifies and confirms its guaranty obligations made
by it in favor of Agent for the benefit of each Lender pursuant to and in
accordance with Article VIII of the Credit Agreement, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain in
full force and effect. Any reference to the Credit Agreement in any
Subordinated Loan Document shall be deemed to be a reference to the Original
Agreement as hereby amended. The Subordinated Loan Documents, as they may be
amended or affected by this Amendment, are hereby ratified and confirmed in all
respects. The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of Lenders under the Credit Agreement, the Subordinated Note, or any
other Subordinated Loan Document nor constitute a waiver of any provision of the
Credit Agreement, the Subordinated Note, or any other Subordinated Loan
Document.
Section 4.2. Survival of Agreements. All representations, warranties,
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covenants and agreements of the Credit Parties herein shall survive the
execution and delivery of this Amendment and the performance hereof, including
without limitation the making, granting or maintenance of the Advances, and
shall further survive until all of the Subordinated Obligations are paid in
full. All statements and agreements contained in any certificate or instrument
delivered by any Credit Party hereunder or under the Credit Agreement to any
Lender shall be
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deemed to constitute representations and warranties by, and/or agreements and
covenants of, such Credit Party under this Amendment and under the Credit
Agreement.
Section 4.3. Subordinated Loan Documents. This Amendment is a
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Subordinated Loan Document, and all provisions in the Credit Agreement
pertaining to Subordinated Loan Documents apply hereto.
Section 4.4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 4.5. Counterparts. This Amendment may be separately executed
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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 SUBORDINATED 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 AMONG THE PARTIES HERETO.
[Signatures on Following Page]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
BRIGHAM OIL & GAS, L.P.
By: /s/ Eugene B. Shepherd, Jr.
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Name: Eugene B. Shepherd, Jr.
Title: Executive Vice President &
Chief Financial Officer
BRIGHAM EXPLORATION COMPANY
By: /s/ Eugene B. Shepherd, Jr.
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Name: Eugene B. Shepherd, Jr.
Title: Executive Vice President &
Chief Financial Officer
BRIGHAM, INC.
By: /s/ Eugene B. Shepherd, Jr.
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Name: Eugene B. Shepherd, Jr.
Title: Executive Vice President &
Chief Financial Officer
THE ROYAL BANK OF SCOTLAND PLC,
as Agent and Lender
By: /s/ P.R. Ballard
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Name: P.R. Ballard
Title: Senior Vice President
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