Exhibit 99.1
SECOND AMENDMENT
TO
CREDIT AGREEMENT
SECOND AMENDMENT, dated as of
July 7, 2009 (this “ Amendment ”), to the
Credit Agreement, dated as of May 15, 2007 (the “
Credit Agreement ”), by and among the lenders
identified on the signature pages thereof (such lenders, together
with their respective successors and permitted assigns, are
referred to hereinafter each individually as a “Lender”
and collectively as the “ Lenders ”), Wells
Fargo Foothill, Inc., a California corporation, as the arranger and
administrative agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, “
Agent ”), Dune Energy, Inc., a Delaware corporation
(“ Parent ”), and each of Parent’s
Subsidiaries identified on the signature pages thereof as a
Borrower (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a “ Borrower ”,
and individually and collectively, jointly and severally, as the
“ Borrowers ”), and each of Parent’s
Subsidiaries identified on the signature pages thereof as a
Guarantor (such Subsidiaries are referred to hereinafter each
individually as a “ Guarantor ”, and
individually and collectively, jointly and severally, as the
“ Guarantors ”; and together with Borrowers,
each a “ Loan Party ” and collectively, the
“ Loan Parties ”).
WHEREAS, the Loan Parties, the Agent
and the Lenders agree to modify the Credit Agreement on and subject
to the terms set forth herein;
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the parties
hereto hereby agree as follows:
1. Definitions . Any
capitalized term used herein and not defined shall have the meaning
assigned to it in the Credit Agreement.
2. Amendments .
(i) New Definitions .
Schedule 1.1 of the Credit Agreement is hereby amended by adding
the following definitions, in appropriate alphabetical
order:
““ Second
Amendment ” means the Second Amendment to Credit
Agreement, dated as of July 7, 2009, among the Borrowers, the
Guarantors, the Agent and the Lenders.”
“‘ Second Amendment
Effective Date ” means the date on which the Second
Amendment shall become effective in accordance with its
terms.”
(ii) Change of Control .
Schedule 1.1 of the Credit Agreement is hereby amended by amending
and restating the definition of “Change of Control” in
its entirety to read as follows:
““ Change of
Control ” means (a) that any “person” or
“group” (within the meaning of Sections 13(d) and 14(d)
of the Exchange Act), other than Permitted Holders, becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of 15%, or more, of the Stock of Parent
having the right to vote for the election of members of the Board
of Directors, (b) that a majority of the members of the Board
of Directors
do not constitute Continuing Directors,
(c) that Parent ceases to own and control, directly or
indirectly, 100% of the outstanding Stock of each other Loan Party,
(d) either James Watt or Frank Smith shall cease to be
involved in the day to day operations and management of the
business of Parent, and a successor reasonably acceptable to Agent
and Lenders is not appointed on terms reasonably acceptable to
Agent and Lenders within 30 days of such cessation of
involvement, or (e) any “Change of Control” or
similar term, as defined in the Second Secured Debt
Documents.”
3. Conditions to
Effectiveness . The effectiveness of this Amendment is subject
to the fulfillment, in a manner satisfactory to the Agent and the
Lenders, of each of the following conditions precedent (the date
such conditions are fulfilled or waived by the Agent and the
Lenders is hereinafter referred to as the “ Second
Amendment Effective Date ”):
(a) Representations and
Warranties; No Event of Default . The representations and
warranties herein, in Section 4 of the Credit Agreement and in
each other Loan Document and certificate or other writing delivered
to the Agent and the Lenders pursuant hereto on or prior to the
Second Amendment Effective Date shall be true and correct in all
material respects (except that such materiality qualifier shall not
be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof) after
giving effect to this Amendment on and as of the Second Amendment
Effective Date as though made on and as of such date (except to the
extent such representations and warranties expressly relate to an
earlier date), and no Default or Event of Default shall have
occurred and be continuing on the Second Amendment Effective Date
or would result from this Amendment becoming effective in
accordance with its terms (except as expressly waived
herein).
(b) Execution of Amendment .
The Agent and the Lenders shall have executed this Amendment and
shall have received a counterpart to this Amendment, duly executed
by the Borrowers and each Guarantor.
4. Representations and
Warranties . Each of the Borrowers and the Guarantors
represents and warrants as follows:
(a) The execution, delivery and
performance by the Borrowers or such Guarantor of this Amendment
(including, without limitation, Section 5) and the performance
by the Borrowers or such Guarantor of the Credit Agreement, as
amended hereby, have been duly authorized by all necessary action,
and the Borrowers or such Guarantor has all requisite power,
authority and legal right to execute, deliver and perform this
Amendment (including, without limitation, Section 5) and to
perform the Credit Agreement, as amended hereby.
(b) This Amendment and the Credit
Agreement, as amended hereby, is a legal, valid and binding
obligation of the Borrowers or such Guarantor, enforceable against
the Borrowers or such Guarantor in accordance with the terms
thereof, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or limiting
creditors’ rights generally.
(c) The representations and
warranties contained in Section 4 of the Credit Agreement are
true and correct in all material respects (except that such
materiality
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