______________________________________________________________________________ FIFTHAMENDMENT TO FIRST AMENDED AND RESTATEDCREDIT AGREEMENT among SWIFTENERGY COMPANY SWIFTENERGY OPERATING, LLC THELENDERS PARTY HERETO and JPMORGANCHASE BANK, N.A., asAdministrative Agent Effective May 1,2009 ______________________________________________________________________________ Table ofContents

 

 

 

______________________________________________________________________________

 

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

 

______________________________________________________________________________

 

 

Article I	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
Article II	AMENDMENTS	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
Article III	RATIFICATION AND ACKNOWLEDGMENTS	5
Article IV	MISCELLANEOUS	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

 

 

 

 

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”).

 

 

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

 

 

 

 

 

 

 

 

ARTICLE II

 

 

 

Effective as of the Effective Date, the Borrower, the Lenders and the Agent hereby amend the Credit Agreement as follows:

 

 

“‛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.”

 

“‛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 extend credit, (c) failed, within three Business Days after a request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a Insolvency Proceeding or had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a Insolvency Proceeding, or had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.”

 

 

“Anything herein to the contrary notwithstanding, no more than fifteen (15) separate Eurodollar Rate Loans shall be outstanding at any one time, with, for purposes of this Section 2.2, all Eurodollar Rate Loans for the same Interest Period constituting one Eurodollar Rate Loan.”

 

 

        “(e)           Upon the incurrence of any New Subordinated Debt (other than Permitted Refinancing Debt), the Borrowing Base shall be automatically reduced by an amount equal to thirty percent (30%) of the amount of the New Subordinated Debt incurred and the Borrower shall be obligated for any mandatory prepayment of the then existing Loan Balance and/or provision of cash as collateral for all or a portion of the then existing L/C Exposure, in accordance with the provisions of Section 2.12, resulting from such further automatic reduction of the Borrowing Base.  For the avoidance of doubt, offerings of preferred stock with no mandatory redemption or mandatory redemption provisions approved by the Administrative Agent in writing in advance of the issuance thereof and a dividend and cash payments thereof, if any, approved by the Administrative Agent in writing in advance of the issuance thereof will not reduce the Borrowing Base.  Also for the avoidance of doubt, offerings of common stock will not reduce the Borrowing Base and no prior approval from either the Administrative Agent or the Lenders is necessary to conduct any such offering.”

 

 

                  “2.27         Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

                  (a)           if any L/C Exposure exists at the time a Lender is a Defaulting Lender, the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s Percentage Share of the then existing L/C Exposure in accordance with the procedures set forth in Section 2.12 for so long as such L/C Exposure is outstanding; and

 

 

                  (b)           the Administrative Agent shall not be required to issue, amend or increase any Letter of Credit unless it is satisfied that cash collateral will be provided by the Borrower in accordance with Section 2.12 and this Section 2.27.”

 

 

                 “(g) the Senior Notes due 2011;”.

 

 

                “6.16              New Subordinated Debt, Senior Subordinated Debt and Senior Notes due 2011.  Amend, extend or modify any of the terms or provisions of any documents, notes or agreements evidencing or governing the Senior Notes due 2011, any Permitted Refinancing Debt or any New Subordinated Debt or consent to any of the foregoing; or at any time following the occurrence and during the continuance of any Default or Event of Default, make any payment, whether in cash or other Property, on or with respect to the Senior Notes due 2011, any Permitted Refinancing Debt or any New Subordinated Debt.  The Borrower may not redeem any part of the Senior Notes due 2011, any Permitted Refinancing Debt or any New Subordinated Debt without the consent of the Administrative Agent, except the Senior Notes due 2011 may be redeemed or repurchased with proceeds of any Permitted Refinancing Debt or any New Subordinated Debt.”

 

 

 

ARTICLE III

 

 

Each of the Borrower, the Lenders and the Agent does hereby adopt, ratify and confirm the Credit Agreement, as amended hereby, and each of the other Loan Documents to which it is a party and acknowledges and agrees that the Credit Agreement, as amended hereby, and each of the other Loan Documents to which it is a party is and remains in full force and effect.  Furthermore, the Borrower, the Lenders and the Agent acknowledge and agree that, as of the Effective Date, the Borrowing Base is set at $300,000,000 and the Commitment Amount is set at $300,000,000 and each of such amounts shall remain in effect until the Borrower receives notice from the Agent of a revised Borrowing Base pursuant to Section 2.11 of the Credit Agreement or the Borrower notifies the Agent of the election by the Borrower to reduce the Commitment Amount pursuant to Section 2.14 of the Credit Agreement or the Borrower, the Lenders and the Agent agree, in accordance with applicable provisions of the Credit Agreement, on a different Commitment Amount, as the case may be.  Each of the Borrower, the Lenders and the Agent further acknowledges and agrees that, as of the Effective Date, the Facility Amount, allocable share of the Commitment Amount and the Percentage Share of each of the Lenders is as set forth on the schedule attached hereto and labeled Exhibit V.

 

ARTICLE IV

 

                         

                          4.1 Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Credit Agreement.

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to First Amended and Restated Credit Agreement to be duly executed and delivered, as of the Effective Date, by their proper and duly authorized officers.

 

BORROWER:

SWIFT ENERGY COMPANY

By:           s/b Alton D. Heckaman, Jr.

Alton D. Heckaman, Jr.

Executive Vice President

and Chief Financial Officer

By:           s/b Adrian D. Shelley

Adrian D. Shelley

Treasurer

SWIFT ENERGY OPERATING, LLC

By:           s/b Alton D. Heckaman, Jr.

Alton D. Heckaman, Jr.

Executive Vice President

and Chief Financial Officer

By:           s/b Adrian D. Shelley

Adrian D. Shelley

Treasurer

AGENT:

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

By:           s/b Jo Linda Papadakis                                                                

Jo Linda Papadakis

Vice President

LENDER:

JPMORGAN CHASE BANK, N.A.

By:           s/b Jo Linda Papadakis                                                                

Jo Linda Papadakis

Vice President

 

 

LENDER:

BANK OF SCOTLAND

By:                                                                

Name:                                                                           

Title:                                                                           

 

 

LENDER:

NATEXIS

By:           s/b Donavan Broussard                                                                

Name:        Donavan Broussard

Title:        Managing Director

By:           s/b Liana Tchernysheva                                                                

Name:         Liana Tchernysheva

Title:            Director

 

LENDER:

COMPASS BANK

By:           s/b Dorothy Marchand                                                                

Name:        Dorothy Marchand

Title:        Senior Vice President

 

LENDER:

SOCIETE GENERALE

By:           s/b Stephen W. Warfel                                                                

Name:        Stephen W. Warfel

Title:         Managing Director

 

LENDER:

CALYON NEW YORK BRANCH

By:                                                                

Name:                                                                           

Title:                                                                           

By:                                                                

Name:                                                                           

Title:                                                                           

 

LENDER:

WELLS FARGO BANK, NATIONAL ASSOCIATION

By:           s/b Scott Hodges                                                                

Name:         Scott Hodges                                                      

Title:        Vice President

 

LENDER:

BNP PARIBAS

By:           s/b Douglas R. Liftman                                                                

Name:        Douglas R. Liftman

Title:        Managing Director

By:           s/b Polly Schott                                                                

Name:       Polly Schott

Title:          Director                                                      

 

LENDER:

COMERICA BANK

By:           s/b Matt Turner                                                                

Name:         Matt Turner

Title:          Corporate Banking Officer

 

LENDER:

AMEGY BANK NATIONAL ASSOCIATION

By:          s/b Kenneth R. Batson, III                                                                

Kenneth R. Batson, III

Vice President

 

 

 

 

For the purposes of this Schedule, the following terms have the following meanings subject to the final paragraph of this Schedule:

 

“Borrowing Base Usage” means, as of any date, the percent of the Borrowing Base represented by the sum of (i) the then existing Loan Balance plus (ii) the then existing L/C Exposure.

 

“Level I Status” exists at any date if the Borrowing Base Usage as of such date is less than 25%.

 

“Level II Status” exists at any date if the Borrowing Base Usage as of such date is less than 50%, but equal to or in excess of 25%.

 

“Level III Status” exists at any date if the Borrowing Base Usage as of such date is less than 75%, but equal to or in excess of 50%.

 

“Level IV Status” exists at any date if the Borrowing Base Usage as of such date is less than 90%, but equal to or in excess of 75%.

 

“Level V Status” exists at any date if the Borrowing Base Usage as of such date is less than or equal to 100%, but equal to or in excess of 90%.

 

“Status” means Level I Status, Level II Status, Level III Status, Level IV Status or Level V Status.

 

The Applicable Margin and Applicable Fee Rate shall be determined by the Administrative Agent from time to time in accordance with the foregoing table.

 

 

 

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