Exhibit 10.1
Execution Copy
SEVENTH AMENDMENT TO THIRD
AMENDED
AND RESTATED CREDIT
AGREEMENT
THIS SEVENTH AMENDMENT TO THIRD
AMENDED AND RESTATED CREDIT AGREEMENT (herein called this “ Amendment
”), dated effective as of May 4, 2009 (the “
Effective Date ”), is entered into by and among
W&T OFFSHORE, INC. , a Texas corporation, as the
borrower (the “ Borrower ”), the various
financial institutions parties hereto, as lenders (collectively,
the “ Lenders ”), TORONTO DOMINION (TEXAS)
LLC , individually and as agent (in such capacity together with
any successors thereto, the “ Agent ”) for the
Lenders, and the issuers of letters of credit parties hereto, as
issuers (collectively, the “ Issuers ”). Terms
defined in the Credit Agreement (as hereinafter defined) are used
herein with the same meanings as given them therein, unless the
context otherwise requires.
W I T N E S S E T H
WHEREAS , the Borrower, the Lenders, the Agent and the
Issuers have heretofore executed that certain Third Amended and
Restated Credit Agreement, dated as of May 26, 2006, as
amended by that certain First Amendment to Third Amended and
Restated Credit Agreement dated as of June 9, 2006, as further
amended by that certain Second Amendment to Third Amended and
Restated Credit Agreement dated as of July 27, 2006, as
further amended by that certain Third Amendment to Third Amended
and Restated Credit Agreement dated as of June 7, 2007, as
further amended by that certain Waiver and Fourth Amendment to
Third Amended and Restated Credit Agreement dated as of
November 6, 2007, as further amended by that certain Fifth
Amendment to Third Amended and Restated Credit Agreement dated as
of July 24 2008, and as further amended by that certain Sixth
Amendment to Third Amended and Restated Credit Agreement dated as
of December 18, 2008 (as so amended, and as from time to time
amended, supplemented, restated or otherwise modified prior to the
date hereof, the “ Credit Agreement ”);
and
WHEREAS , the parties hereto hereby further intend to
amend certain provisions of the Credit Agreement, in each case on
the terms and conditions set forth herein.
NOW, THEREFORE
, in consideration of the premises
and the mutual agreements herein contained, the undersigned hereby
agree as follows:
1. Amendments to Credit
Agreement . The Credit Agreement is hereby amended as
follows:
(a) Section 1.1 . The
following definitions are hereby added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical order:
(i) Section 1.1 of the Credit
Agreement is hereby amended by adding the following definitions in
the proper alphabetical order:
“ Impacted Lender
” means any Lender that (a) has not made available to
the Agent such Lender’s ratable portion of a requested
borrowing or has not reimbursed an Issuer for such Lender’s
ratable portion of the amount of a payment made by such Issuer
under a Letter of Credit, in each case after the date due therefor
in accordance with the terms of the Credit Agreement, or has
otherwise defaulted in its obligation to so fund or reimburse in
accordance with the terms of the Credit Agreement; (b) has
notified the Borrower or the Agent that it does not intend to
comply with its obligation to fund Loans or make reimbursements in
respect of outstanding Letters of Credit under the Credit Agreement
(and has not revoked such notice); or (c) is, or is a
Subsidiary of a Person that is, the subject of a bankruptcy,
insolvency or similar proceeding.
“ Reference Eurodollar
Rate ” means, as of any day, a rate of interest per annum
equal to the 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.
(ii) The definition of “
Alternate Base Rate ” in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
“ Alternate Base Rate
” means, for any day, the per annum rate equal to the Base
Rate Margin plus the highest of the determinable of (i) the
Prime Rate, (ii) the Federal Funds Rate plus one-half percent
(0.5%) per annum, and (iii) the Reference Eurodollar Rate
plus one percent (1%) per annum. If the Prime Rate or
the Federal Funds Rate changes after the date hereof, the Alternate
Base Rate shall be automatically increased or decreased, as the
case may be, without notice to Borrower, from time to time as of
the effective time of each such change. The Alternate Base Rate
shall in no event, however, exceed the Highest Lawful Rate. If for
any reason the Agent shall have determined (which determination
shall be conclusive and binding, absent manifest error) that it is
unable to ascertain the Federal Funds Rate for any reason,
including, without limitation, the inability or failure of the
Agent to obtain sufficient bids or publications in accordance with
the terms hereof, the Alternate Base Rate shall be determined using
the Prime Rate until the circumstances giving rise to such
inability no longer exist.
(iii) Clause (c) of the
definition of “ Base Rate Margin ” in
Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“(c) with respect to Revolving
Loans, the applicable rate per annum equal to:
(i) three-quarters of one percent
(0.750%) per annum when the Facility Usage on such day is less than
twenty-five percent (25%) of the Borrowing Base on such
day,
(ii) one percent (1.000%) per
annum when the Facility Usage on such day is greater than or equal
to twenty-five percent (25%) but less than fifty percent
(50%) of the Borrowing Base on such day,
(iii) one and one-quarter percent
(1.250%) per annum when the Facility Usage on such day is
greater than or equal to fifty percent (50%) of the Borrowing
Base on such day, but less than seventy-five percent (75%) of
the Borrowing Base on such day,
(iv) one and one-half percent
(1.500%) per annum when the Facility Usage on such day is
greater than or equal to seventy-five percent (75%) of the
Borrowing Base on such day, but less than ninety percent
(90%) of the Borrowing Base on such day, and
(v) one and three-quarters percent
(1.750%) per annum when the Facility Usage on such day is
greater than or equal to ninety percent (90%) of the Borrowing
Base on such day.”
(iv) The definition of “
Commitment Fee Rate ” in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
“ Commitment Fee Rate
” means, on each day, a rate per annum equal to one-half of
one percent (0.500%).
(v) Clause (c) of the
definition of “ Eurodollar Margin ” in
Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“(c) with respect to Revolving
Loans, the applicable rate per annum equal to:
(i) two percent (2.000%) per
annum when the Facility Usage on such day is less than twenty-five
percent (25%) of the Borrowing Base on such day,
(ii) two and one-quarter percent
(2.250%) per annum when the Facility Usage on such day is
greater than or equal to twenty-five percent (25%) but less
than fifty percent (50%) of the Borrowing Base on such
day,
(iii) two and one-half percent
(2.500%) per annum when the Facility Usage on such day is
greater than or equal to fifty percent (50%) of the Borrowing
Base on such day, but less than seventy-five percent (75%) of
the Borrowing Base on such day,
(iv) two and three-quarters percent
(2.750%) per annum when the Facility Usage on such day is
greater than or equal to seventy-five percent (75%) of the
Borrowing Base on such day, but less than ninety percent
(90%) of the Borrowing Base on such day, and
(v) three percent (3.000%) per
annum when the Facility Usage on such day is greater than or equal
to ninety percent (90%) of the Borrowing Base on such
day.”
(b) Section 2.4 of the
Credit Agreement is hereby amended by deleting the first sentence
thereof and replacing it with the following: “Borrower shall
use all Loans to refinance the Tranche B Term Loans, finance
capital expenditures, and provide working capital for its
operations and for other general business purposes, including the
acquisition of oil and gas properties and related
assets.”
(c) Section 2.11 .
Section 2.11 of the Credit Agreement is hereby amended by
inserting the following new clause (j) at the end of such
Section following clause (i) thereof:
“(j) Notwithstanding anything
herein to the contrary, no Issuer shall be obligated to issue,
renew or extend a Letter of Credit if any Lender is at such time an
Impacted Lender hereunder, unless such Issuer has entered into
arrangements reasonably satisfactory to such Issuer with the
Borrower or such Impacted Lender to eliminate such Issuer’s
risk with respect to such Impacted Lender. If any Letter of Credit
Outstandings exist at the time a Lender is an Impacted Lender, the
Borrower shall within one Business Day following notice by the
Agent cash collateralize such Impacted Lender’s portion of
such Letter of Credit Outstandings in a manner reasonably
satisfactory to such Issuer for so long as such Lender is an
Impacted Lender and such Letter of Credit Outstandings
exist.”
(d) Section 3.4 .
Section 3.4 of the Credit Agreement is hereby amended by
changing the words “Adjusted Eurodollar Rate” to
“Eurodollar Rate”.
(e) Section 7.5(c) .
Section 7.5(c) of the Credit Agreement is hereby amended by
changing the words “the Borrower shall notify the Agent in
writing” to “the Borrower shall notify the Agent in
writing (including notice by email)”.
(f) Section 7.12 .
Section 7.12 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“ Section 7.12 .
Leverage Ratio . The Borrower will not permit its Leverage
Ratio (a) as of the last day of any Fiscal Quarter prior to
and including the Fiscal Quarter ending June 30, 2009, to be
greater than 3.00 to 1.00, (b) as of the last day of the
Fiscal Quarter ending September 30, 2009, to be greater than
3.75 to 1.00, (c) as of the last day of the Fiscal Quarter
ending December 31, 2009, to be greater than 3.50 to 1.00,
(d) as of the last day of the Fiscal Quarter ending
March 31, 2010, to be greater than 3.25 to 1.00 and
(e) as of the last day each Fiscal Quarter thereafter
(commencing with the Fiscal Quarter ending June 30, 2010) to
be greater than 3.00 to 1.00; provided that the calculation
of the Borrower’s Leverage Ratio for purposes of this
Section 7.12 shall exclude any unrealized
gains or losses or non-cash assets
or liabilities in respect of Hedging Contracts described in, and
calculated pursuant to, Statement of Financial Accounting Standards
133 and 143, each as amended (provided that, for the avoidance of
doubt, the calculation of Leverage Ratio shall include any gains,
losses, assets or liabilities in
