Exhibit 10.1
______________________________________________________________________________
FIFTH AMENDMENT TO FIRST AMENDED
AND
RESTATED CREDIT AGREEMENT
among
SWIFT ENERGY COMPANY
SWIFT ENERGY OPERATING,
LLC
THE LENDERS PARTY HERETO
and
JPMORGAN CHASE BANK,
N.A.,
as Administrative Agent
Effective
May 1, 2009
______________________________________________________________________________
Table of Contents
|
|
DEFINITIONS AND
INTERPRETATION
|
1
|
|
1.1
|
Terms Defined Above
|
1
|
|
1.2
|
Terms Defined in Credit Agreement
|
1
|
|
1.3
|
References
|
1
|
|
1.4
|
Articles and Sections
|
2
|
|
1.5
|
Number and Gender
|
2
|
|
|
|
2
|
|
2.1
|
Amendments to Section 1.2
|
2
|
|
2.2
|
Amendment to Section 2.4
|
4
|
|
2.3
|
Amendment to Section 2.11
|
4
|
|
2.4
|
Addition of Section 2.27
|
4
|
|
2.5
|
Amendment to Section 6.1
|
5
|
|
2.6
|
Amendment to Section 6.16
|
5
|
|
2.7
|
Substitution of Exhibit X
|
5
|
|
2.8
|
Amendment to Table of Contents
|
5
|
|
|
RATIFICATION
AND ACKNOWLEDGMENTS
|
5
|
|
|
|
6
|
|
4.1
|
Successors and Assigns
|
6
|
|
4.2
|
Rights of Third Parties
|
6
|
|
4.3
|
Counterparts
|
6
|
|
4.4
|
Integration
|
6
|
|
4.5
|
Severability
|
6
|
|
4.6
|
Governing Law
|
6
|
FIFTH AMENDMENT TO FIRST AMENDED
AND
RESTATED CREDIT
AGREEMENT
This FIFTH AMENDMENT TO FIRST AMENDED AND
RESTATED CREDIT AGREEMENT (this “ Amendment ”)
executed effective as of May 1, 2009 (the “ Effective
Date ”) is by and among SWIFT ENERGY COMPANY, a Texas
corporation (“ New Swift ”), SWIFT ENERGY
OPERATING, LLC, a Texas limited liability company and successor by
merger to the Texas corporation formerly known as Swift Energy
Company (“ Operating ” and New Swift and
Operating, collectively, the “ Borrower ”), the
lenders party to that certain First Amended and Restated Credit
Agreement dated as of June 29, 2004 by and among the Texas
corporation then known as Swift Energy Company, the lenders party
thereto or bound thereby from time to time (the “
Lenders ”), and Bank One, NA, as administrative agent
for such lenders (as amended to the Effective Date, the “
Credit Agreement ”), and JPMORGAN CHASE BANK, N.A., a
national banking association and successor by merger to Bank One,
NA, as administrative agent for such Lenders (in such capacity, the
“ Agent ”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent
are parties to the Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Agent
desire to amend the Credit Agreement in the particulars hereinafter
provided;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements contained in the Credit
Agreement and herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND
INTERPRETATION
1.1 Terms Defined
Above . As used in this Fifth Amendment to First
Amended and Restated Credit Agreement, each of the terms “
Agent ,” “ Amendment ,” “
Borrower ,” “ Credit Agreement ,”
“ Effective Date ,” “ Lenders
,” “ New Swift and “ Operating
” shall have the meaning assigned to such term
hereinabove.
1.2 Terms Defined
in Credit Agreement . Each term defined in the
Credit Agreement and used herein without definition shall have the
meaning assigned to such term in the Credit Agreement, unless
herein expressly provided to the contrary.
1.3 References
. References in this Amendment to Exhibit, Article or
Section numbers shall be to Exhibits, Articles or Sections of this
Amendment, unless expressly stated to the
contrary. References in this Amendment to
“hereby,” “herein,”
“hereinafter,” “hereinabove,”
“hereinbelow,” “hereof,”
“hereunder” and words of similar import shall be to
this Amendment in its entirety and not only to the particular
Schedule, Exhibit, Article, or Section in which such reference
appears. Specific enumeration herein shall not exclude
the general and, in such regard, the terms “includes”
and “including” used herein shall mean “includes,
without limitation,” or “including, without
limitation,” as the case may be, where
appropriate. Except as otherwise indicated, references
in this Amendment to statutes, sections, or regulations are to be
construed as including all statutory or regulatory provisions
consolidating, amending, replacing, succeeding, or supplementing
the statute, section, or regulation referred
to. References in this Amendment to
“writing” include printing, typing, lithography,
facsimile reproduction, and other means of reproducing words in a
tangible visible form. References in this Amendment to
amendments and other contractual instruments shall be deemed to
include all exhibits and appendices attached thereto and all
subsequent amendments and other modifications to such instruments,
but only to the extent such amendments and other modifications are
not prohibited by the terms of the Credit Agreement or this
Amendment. References in this Amendment to Persons
include their respective successors and permitted
assigns.
1.4 Articles and
Sections . This Amendment, for convenience only, has
been divided into Articles and Sections; and it is understood that
the rights and other legal relations of the parties hereto shall be
determined from this instrument as an entirety and without regard
to the aforesaid division into Articles and Sections and without
regard to headings prefixed to such Articles or
Sections.
1.5 Number and
Gender . Whenever the context requires, reference
herein made to the single number shall be understood to include the
plural; and likewise, the plural shall be understood to include the
singular. Definitions of terms defined in the singular
or plural shall be equally applicable to the plural or singular, as
the case may be, unless otherwise indicated. Words
denoting sex shall be construed to include the masculine, feminine
and neuter, when such construction is appropriate; and specific
enumeration shall not exclude the general but shall be construed as
cumulative.
ARTICLE II
AMENDMENTS
Effective as of the Effective Date, the
Borrower, the Lenders and the Agent hereby amend the Credit
Agreement as follows:
2.1 Amendments to
Section 1.2 . Section 1.2 of the Credit Agreement is
amended to (a) substitute the following for the definitions of
“Alternative Base Rate,” “New Subordinated
Debt” and “Permitted Refinancing Debt”,
respectively, appearing in such Section 1.2, each in its
entirety:
“‛ Alternative Base Rate
’ shall mean, for any day, a rate per annum equal to the sum
of (a) the greatest of (i) the Prime Rate in effect on such day,
(ii) the Federal Funds Rate in effect on such day plus ½ of
1% and (iii) the Adjusted Eurodollar Rate for a one month Interest
Period on such day (or if such day is not a Business Day, the
immediately preceding Business Day) plus 1%; provided that, for the
avoidance of doubt, the Adjusted Eurodollar Rate for any day shall
be based on the rate appearing on the Reuters BBA Libor Rates Page
3750 (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day, plus (b) the
relevant Applicable Margin. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Federal Funds Rate
or the Adjusted Eurodollar Rate shall be effective from and
including the effective date of such change in the Prime Rate, the
Federal Funds Rate or the Adjusted LIBO Rate,
respectively.
‛ New Subordinated Debt ’
shall mean Indebtedness of the Borrower (including senior unsecured
notes, subordinated notes, convertible notes, preferred stock with
any mandatory redemption and other Indebtedness not ranking pari
passu with the Obligations) of up to $250,000,000 in principal
amount, in such form and with terms, including, when appropriate,
the subordination of such Indebtedness to the payment in full of
the Obligations and the termination of the Commitments, approved by
the Administrative Agent in writing in advance of the incurrence
thereof.
‛ Permitted Refinancing Debt
’ shall mean Indebtedness of the Borrower (including senior
unsecured notes, subordinated notes, convertible preferred stock
with any mandatory redemption and other Indebtedness not ranking
pari passu with the Obligations), in such form and with
terms, including, when appropriate, the subordination of such
Indebtedness to the payment in full of the Obligations and the
termination of the Commitments, approved by the Administrative
Agent in writing in advance of the incurrence thereof, resulting
from the refinancing of the Senior Notes due
2011.”
and (b) insert the following definition in its proper alphabetical
location in such Section 1.2:
“‛ Defaulting Lender ’
shall mean any Lender, as reasonably determined by the
Administrative Agent, that has (a) failed to fund any portion of
its Loans or participations in Letters of Credit within three
Business Days of the date required to be funded by it hereunder,
(b) notified the Borrower, the Administrative Agent or any Lender
in writing that it does not intend to comply with any of its
funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements
in which it commits to ex
