Exhibit 10.5
FIRST AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Fourth Amended and Restated Credit Agreement (this
"First Amendment") is entered into effective as of September 25, 2002 by and
among QUICKSILVER RESOURCES INC., a Delaware corporation, as Borrower
("Borrower"), BANK OF AMERICA, N.A., a national banking association, as
Administrative Agent ("Administrative Agent"), the BANKS party hereto, and the
SUBSIDIARY GUARANTORS defined herein.
W I T N E S S E T H:
WHEREAS, Borrower, Administrative Agent, Fortis Capital Corp. and BNP
Paribas, as Co-Syndication Agents, CIBC Inc. and The Bank of Nova Scotia, as
Co-Documentation Agents, and the financial institutions party thereto
(collectively, "Banks") are parties to that certain Fourth Amended and Restated
Credit Agreement dated as of May 13, 2002 (as amended, the "Credit Agreement";
unless otherwise defined herein, all terms used herein with their initial letter
capitalized shall have the meaning given such terms in the Credit Agreement);
and
WHEREAS, pursuant to the Credit Agreement, Banks have made Loans to
Borrower and provided certain other credit accommodations to Borrower; and
WHEREAS, Borrower has requested that Banks amend certain terms of the
Credit Agreement in certain respects, as set forth herein; and
WHEREAS, subject to the terms and conditions herein contained, Banks have
agreed to Borrower's requests.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower,
Administrative Agent and Banks hereby agree as follows:
SECTION 1. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this First Amendment, and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, the
Credit Agreement is hereby amended in the manner provided in this Section 1.
1.1 The definition of "Consolidated Current Assets" in Section 2.1 of the
Credit Agreement is hereby amended to read in full as follows:
"Consolidated Current Assets" means, for any Person at any time, the
current assets of such Person and its Consolidated Subsidiaries at such
time, plus, in the case of Borrower, the Availability at such time, but
excluding, for any Person at any time, any current asset of such Person for
any Hedging Agreement resulting from the requirements of SFAS 133 at such
time.
1.2 The definition of "Consolidated Current Liabilities " in Section 2.1 of
the Credit Agreement is hereby amended to read in full as follows:
"Consolidated Current Liabilities" means, for any Person at any time,
the current liabilities of such Person and its Consolidated Subsidiaries at
such time, but excluding any current liability for any Hedging Agreement
resulting from the requirements of SFAS 133 at such time, and in the case
of Borrower, excluding current maturities of Long Term Debt of Borrower and
its Consolidated Subsidiaries outstanding at such time.
1.3 The introductory paragraph of the definition of "Letter of Credit Fee"
in Section 2.1 of the Credit Agreement is hereby amended to read in full as
follows:
"Letter of Credit Fee" means, with respect to any Letter of Credit
issued hereunder, a fee in an amount equal to a percentage of the stated
amount of such Letter of Credit (calculated on a per annum basis based on
the stated term of such Letter of Credit) determined in accordance with the
table below by reference to the ratio of Outstanding Credit to the
Borrowing Base, as such ratio is in effect from time to time during the
period such Letter of Credit is issued and outstanding:
1.4 The sixth sentence of Section 3.1(b) of the Credit Agreement is hereby
amended to read in full as follows:
Borrower shall pay to Administrative Agent in respect of each Letter
of Credit (a) a quarterly installment of the applicable Letter of Credit
Fee in arrears on each Quarterly Date until such Letter of Credit Fee has
been paid, and (b) the applicable Letter of Credit Fronting Fee at the time
of issuance of each such Letter of Credit.
1.5 The seventh sentence of Section 3.1(b) of the Credit Agreement is
hereby amended to read in full as follows:
Administrative Agent shall distribute the Letter of Credit Fee to
Banks in accordance with their respective Commitment Percentages, and
Administrative Agent shall retain the Letter of Credit Fronting Fee for its
own account.
SECTION 2. Conditions Precedent. The effectiveness of the amendments to the
Credit Agreement contained in Section 1 hereof is subject to the Administrative
Agent's receipt of the First Amendment duly executed by Borrower, each
Subsidiary Guarantor, and Banks.
SECTION 3. Representations and Warranties of Borrower. To induce
Administrative Agent and Banks to enter into this First Amendment, Borrower
hereby represents and warrants to Administrative Agent and Banks as follows:
3.1 Credit Agreement. Each representation and warranty of the Credit
Parties contained in the Credit Agreement and the other Loan Papers is true and
correct on the date hereof, and will be true and correct after giving effect to
the First Amendment.
3.2 Authorization. The execution, delivery and performance by Borrower of
this First Amendment are within Borrower's corporate powers, have been duly
authorized by all necessary
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corporate action, require no action by or filing with any governmental body,
agency or official and do not violate or constitute a default under any
provision of applicable Law or Material Agreement binding upon any Credit Party
or result in the creation or imposition of any Lien upon any of the assets of
any Credit Party other than the Liens securing the Obligations.
3.3 Binding Effect. This First Amendment constitutes the valid and binding
obligation of Borrower enforceable in accordance with its terms, except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
Laws affecting creditors rights generally, and (b) the availability of equitable
remedies may be limited by equitable principles of general application.
3.4 No Defenses. Borrower has no defenses to payment, counterclaim or
rights of set-off with respect to the Obligations existing on the date hereof.
SECTION 4. Ratification of Subsidiary Guarantees. Each Subsidiary of
Borrower (other than Voyager) (each a "Subsidiary Guarantor," and collectively,
the "Subsidiary Guarantors") hereby consents to the execution of this First
Amendment and reaffirms its guaranty of all of the Obligations of the Borrower
pursuant to its respective Subsidiary Guaranty. Borrower and each Subsidiary
Guarantor confirm and agree that (a) neither the execution of this First
Amendment nor the consummation of the transactions described herein shall in any
way effect, impair or limit the covenants, liabilities, obligations and duties
of the Borrower or any Subsidiary Guarantor under the Loan Papers and (b) the
obligations evidenced and secured by the Loan Papers continue in full force and
effect. Each Subsidiary Guarantor hereby further confirms that it
unconditionally guarantees to the extent set forth in its respective Subsidiary
Guaranty the due and punctual payment and performance of any and all amounts and
obligations owed by the Borrower to the Banks under the Credit Agreement and the
other Loan Papers.
SECTION 5. Miscellaneous.
5.1 Reaffirmation of Loan Papers; Extension of Liens. Any and all of the
terms and provisions of the Credit Agreement and the Loan Papers shall, except
as amended and modified hereby, remain in full force and effect. Borrower hereby
extends the Liens securing the Obligations until the Obligations have been paid
in full or are specifically released by Administrative Agent and Banks, and
agrees that the amendments and modifications herein contained shall in no manner
adversely affect or impair the Obligations or the Liens securing payment and
performance thereof.
5.2 Parties in Interest. All of the terms and provisions of this First
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 Legal Expenses. Borrower hereby agrees to pay on demand all reasonable
fees and expenses of counsel to Administrative Agent incurred in connection with
the preparation, negotiation and execution of this First Amendment and all
related documents.
5.4 Counterparts. This First Amendment may be executed in multiple
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this First Amendment until Borrower and Banks have
executed a counterpart hereof. Facsimiles shall be effective as originals.
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5.5 Choice of Law. THIS FIRST AMENDMENT AND THE OTHER LOAN PAPERS HAVE BEEN
EXECUTED AND DELIVERED IN THE STATE OF TEXAS AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF
THE UNITED STATES OF AMERICA, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY STATE IN
WHICH ANY PROPERTY INTENDED AS SECURITY FOR THE OBLIGATIONS IS LOCATED
NECESSARILY GOVERN (A) THE PERFECTION AND PRIORITY OF THE LIENS IN FAVOR OF
ADMINISTRATIVE AGENT AND BANKS WITH RESPECT TO SUCH PROPERTY, AND (B) THE
EXERCISE OF ANY REMEDIES (INCLUDING FORECLOSURE) WITH RESPECT TO SUCH PROPERTY.
5.6 Complete Agreement. THIS FIRST AMENDMENT, THE CREDIT AGREEMENT AND THE
OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN OR AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF.
5.7 Headings. The headings, captions and arrangements used in this First
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this First Amendment, nor affect
the meaning thereof.
Remainder of Page Intentionally Blank
Signature Pages to Follow
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by their respective Authorized Officers effective as of the
date first written above.
BORROWER:
QUICKSILVER RESOURCES INC., a Delaware
corporation
By: /s/ Glenn Darden
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Glenn Darden
President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
SUBSIDIARY GUARANTORS:
BEAVER CREEK PIPELINE, L.L.C.
By: /s/ Jeff Cook
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Jeff Cook
Manager
CINNABAR ENERGY SERVICES &
TRADING, LLC
By: /s/ Bill Lamkin
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Bill Lamkin
Vice President
TERRA ENERGY LTD.
By: /s/ Glenn Darden
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Glenn Darden
President
MERCURY MICHIGAN INC.
By: /s/ Glenn Darden
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Glenn Darden
President
GTG PIPELINE CORPORATION
By: /s/ Glenn Darden
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Glenn Darden
President
MGV ENERGY, INC.
By: /s/ George Voneiff
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George Voneiff
President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
ENERGY ACQUISITION OPERATING
CORPORATION
By: /s/ Glenn Darden
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Glenn Darden
President
KRISTEN CORPORATION
By: /s/ Glenn Darden
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Glenn Darden
President
TERRA PIPELINE COMPANY
By: /s/ Glenn Darden
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Glenn Darden
President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ Richard Stein
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Richard Stein
Principal
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
BANKS:
BANK OF AMERICA, N.A.
By: /s/ Richard Stein
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Richard Stein
Principal
BNP PARIBAS
By: /s/ C. David Dodd
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Name: C. David Dodd
Title: Director
By: /s/ Betsy Jocher
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Name: /s/ Betsy Jocher
Title: Vice President
CIBC INC.
By: /s/ George Knight
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Name: George Knight
Title: Managing Director
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ O. Audemard
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Name: O. Audemard
Title: Senior Vice President
COMERICA BANK - TEXAS
By: /s/ Michele L. Jones
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Name: Michele L. Jones
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement
COMPASS BANK
By: /s/ Dorothy Marchand
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Name: Dorothy Marchand
Title: Senior Vice President
FORTIS CAPITAL CORP.
By: /s/ Christopher S. Parada
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Name: Christopher S. Parada
Title: Vice President
By: /s/ Darrell W. Holley
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Name: Darrell W. Holley
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Doug Clark
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Name: Doug Clark
Title: Vice President
By:
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Name:
-----------------------------
Title:
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THE BANK OF NOVA SCOTIA
By: /s/ A. S. Norsworth
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Name: A. S. Norsworth
Title: Senior Manager
WASHINGTON MUTUAL BANK, FA
By: /s/ David W. Phillips
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Name: David W. Phillips
Title: Vice President
Signature Page to First Amendment to
Fourth Amended and Restated Credit Agreement