Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 4 TO NOTE PURCHASE
AGREEMENT
AND LIMITED WAIVER
THIS AMENDMENT NO. 4 TO NOTE
PURCHASE AGREEMENT AND LIMITED WAIVER (this “
Amendment ”), dated effective as of
May 6, 2009 (the “ Amendment Effective Date
”), is between GMX Resources Inc., an Oklahoma corporation
(the “ Company ”), and the noteholder
listed on the signature page hereto (the “ Noteholder
”).
R E C I T A L S:
A. The Company and the Noteholder
entered into a Note Purchase Agreement dated as of July 31,
2007, as amended by that certain Amendment No. 1 to Note
Purchase Agreement and Limited Consent dated February 11,
2008, Amendment No. 2 to Note Purchase Agreement dated
June 12, 2008 and Amendment No. 3 to Note Purchase
Agreement and Limited Waiver dated as of February 27, 2009 (as
so amended, the “ Note Agreement ”).
Capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Note
Agreement.
B. Reference is made to the
Subordinated Guaranty Agreement (the “ Guaranty
Agreement ”) dated as of July 31, 2007, entered into
by Endeavor Pipeline Inc., an Oklahoma corporation (“
Endeavor ”), and Diamond Blue Drilling Co., an
Oklahoma corporation (together with Endeavor, the “
Subsidiary Guarantors ”).
C. The Company has informed the
Noteholder that an Event of Default under the Note Agreement has
occurred and is continuing under paragraph 6A(4) of the Note
Agreement due to the Company’s failure to maintain the
minimum Consolidated Tangible Net Worth financial covenant for the
fiscal quarter ended March 31, 2009 (the “ Subject
Default ”).
D. The Company has requested that
the Noteholder waive the Subject Default, amend the Consolidated
Tangible Net Worth financial covenant, and amend paragraph 10C of
the Note Agreement, and the Noteholder is willing to agree to
provide such waiver and enter into such amendments, upon and
subject to the terms and conditions set forth herein.
NOW, THEREFORE,
in consideration of the premises and
the covenants, terms, conditions, representations and warranties
herein contained, the parties hereto hereby agree as
follows:
Section 1. AMENDMENTS TO
NOTE AGREEMENT. Subject
to the covenants, terms and conditions set forth herein and in
reliance upon the representations and warranties of the Company
herein contained, the Company and the Noteholder hereby agree to
amend the Note Agreement as set forth below:
(a) Amendment to Paragraph
6A(4) . Effective as of April 1, 2009, paragraph 6A(4) of
the Agreement is hereby amended in its entirety to read as
follows:
6A(4). Tangible Net Worth.
The Company will not permit, at any time, Consolidated Tangible Net
Worth to be less than $115,000,000 plus the sum of (i) 50% of
positive Net Income in each fiscal quarter commencing with the
fiscal quarter ending June 30, 2009, and (ii) 100% of the
Net Cash Proceeds from the issuance and sale of Equity Interests by
the Company after December 31, 2008. For purposes of this
covenant, the non-cash effects, if any, of Swaps pursuant to
Financial Accounting Standards Board Rule No. 133 (Accounting
for Derivative Instruments and Hedging Activities) will not be
included.
(b) Amendment of Paragraph
10C. Paragraph 10C of the Note Agreement is hereby amended by
inserting the following sentence at the end of such
paragraph:
For purposes of determining
compliance with the financial covenants contained in this
Agreement, any election by the Company to measure an item of
Indebtedness using fair value (as permitted by Statement of
Financial Accounting Standards No. 159 or any similar
accounting standard) shall be disregarded and such determination
shall be made as if such election had not been made.
Section 2. LIMITED
WAIVER. The Company
hereby acknowledges that the Subject Default has occurred and is
continuing. Subject to the terms and conditions set forth herein,
and in reliance upon representations and warranties of the Company
set forth herein, the Noteholder hereby waives the Subject Default.
The foregoing waiver shall be limited precisely as written and
shall relate solely to the Note Agreement in the manner and to the
extent described herein, and nothing in this Amendment shall be
deemed (a) to constitute a waiver of compliance by the Company
with respect to (i) paragraph 6A(4) of the Note Agreement in
any other instance or res
