exhibit10pnt1.htm


     

     

     

    
      Exhibit
10.1

       

       

    

    SECOND
AMENDMENT

    TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT

    


     

    This
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment") dated as of May 1,
2009, is among COMSTOCK RESOURCES, INC. (the "Borrower"), the banks named on
the signature pages hereto (together with their respective successors and
assigns in such capacity, each as a "Lender"), and BANK OF
MONTREAL, as administrative agent for the Lenders (in such capacity, together
with its successors and assigns, the "Administrative
Agent").

     

    PRELIMINARY
STATEMENT

     

    A.           The
Borrower, the Administrative Agent, the Lenders and certain other parties have
entered into that certain Second Amended and Restated Credit Agreement dated as
of December 15, 2006, as amended by that certain First Amendment to Second
Amended and Restated Credit Agreement dated as of April 30, 2008 (as so amended
and as further amended, restated, modified or supplemented from time to time
until the date hereof, the "Credit
Agreement").

     

    B.           Subject
to the terms and conditions of this Amendment, the Lenders, the Administrative
Agent, the Issuing Bank and the Borrower have agreed to enter into this
Amendment in order to effectuate such amendments and modifications to the Credit
Agreement and redetermine the Borrowing Base, all as set forth
herein.

     

    NOW
THEREFORE, in consideration of the foregoing and the mutual agreements set forth
herein, the parties agree as follows:

     

    Section
1. 
Definitions.  Unless
otherwise defined in this Amendment, each capitalized term used in this
Amendment has the meaning assigned to such term in the Credit
Agreement.

     

    Section
2. 
Amendment of
Credit Agreement.

     

                 
(a) 
Section
1.1 of the Credit Agreement is hereby amended by amending and restating the
definition of "Base Rate" to provide:

     

    "Base Rate" means, on
any date and with respect to all Base Rate Loans, a fluctuating rate of interest
per annum equal to the greatest of (a) the rate of interest most recently
announced by Bank of Montreal at its Chicago, Illinois office as its base rate
for dollar advances made in the United States, (b) the Federal Funds Rate most
recently determined by the Administrative Agent plus 1⁄2% (0.5%) per
annum and (c) the rate of interest per annum equal to the offered quotation
appearing on Telerate Page 3750 at approximately 11:00 a.m. (London time)
for a one-month interest period on such day (or if such day is not a Business
Day, the immediately preceding Business Day) (or if such Telerate Page shall not
be available, the rate per annum determined by the Administrative Agent by
reference to the British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars as set forth by any service which has been nominated by
the British Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) plus
1.5%.  The Base Rate is not necessarily intended to be the lowest rate
of interest determined by Bank of Montreal or any Lender in connection with
extensions of credit.  Changes in the rate of interest on that portion
of any Loans maintained as Base Rate Loans will take effect simultaneously with
each change in the Base Rate.  The Administrative Agent will give
notice to the Borrower of changes in the Base Rate promptly upon receipt of
notice of any such change from Bank of Montreal."

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

       

       

                    (b)  The
pricing grid in the definition of "Base Rate Spread" in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following table:

    

     

    
      
        
          
            
              
                
                  
                    	
                            Percentage of

                            Borrowing Base

                            Usage

                          	
                            Base Rate Spread

                          
	
                            > 90%

                          	
                            1.250%

                          
	
                            >75% but <90%

                          	
                            1.000%

                          
	
                            >50% but <75%

                          	
                            0.750%

                          
	
                            <50%

                          	
                            0.500%

                          


                  

                

              

            

          

        

      

    

    


     

                 
(c) The
pricing grid in the definition of "Commitment Fee Rate" in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety and replaced with the
following table:

     

    
      
        
          
            	
                    Percentage of

                    Borrowing Base

                    Usage

                  	
                    Commitment

                    Fee Rate

                  
	
                    > 90%

                  	
                    0.
      500%

                  
	
                    >75% but <90%

                  	
                    0.
      500%

                  
	
                    >50% but <75%

                  	
                    0.
      500%

                  
	
                    <50%

                  	
                    0.500%

                  


          

        

      

    

    


     

                 
(d) The
pricing grid in the definition of "LIBOR Spread" in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following table:

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

     

     

    
      
        
          
            	
                    Percentage of

                    Borrowing Base

                    Usage

                  	
                    LIBOR Spread

                  
	
                    > 90%

                  	
                    2.750%

                  
	
                    >75% but <90%

                  	
                    2.500%

                  
	
                    >50% but <75%

                  	
                    2.250%

                  
	
                    <50%

                  	
                    2.000%

                  


          

        

      

    

    


     

    Section
3. 
Redetermination
of Borrowing Base.

     

                
(a) 
The
Borrowing Base shall be decreased from $590,000,000 to $550,000,000 from and
after the Effective Date until the Borrowing Base shall be otherwise
redetermined in accordance with the Credit Agreement.

     

                
(b)    Both the
Borrower, on the one hand, and the Administrative Agent and the Lenders, on the
other hand, agree that the redetermination of the Borrowing Base pursuant to
clause (a) of this Section 3 constitutes the regularly scheduled Borrowing Base
redetermination for Spring 2009 (and shall not constitute a discretionary
redetermination of the Borrowing Base pursuant to Section 2.8 of the Credit
Agreement).

     

    Section
4.    Ratification.  The
Borrower hereby ratifies and confirms all of the Obligations under the Credit
Agreement (as amended hereby) and the other Loan Documents, and, in particular,
affirms that the terms of the Security Documents secure, and will continue to
secure, all Obligations, after giving effect to this Amendment.

     

    Section
5. 
Effectiveness.  This
Amendment shall become effective on the first date on which all of the
conditions set forth in this Section 5 are satisfied:

     

              (a)    The
Administrative Agent shall have received duly executed counterparts of this
Amendment from the Borrower, the Administrative Agent and Lenders comprising at
least the Majority Lenders; and

     

                
(b)     The
Borrower shall have confirmed and acknowledged to the Administrative Agent and
the Lenders, and by its execution and delivery of this Amendment, the Borrower
does hereby confirm and acknowledge to the Administrative Agent and the Lenders,
that (i) the execution, delivery and performance of this Amendment has been duly
authorized by all requisite corporate action on the part of the Borrower; (ii)
the Credit Agreement (as amended hereby) and each other Loan Document constitute
valid and legally binding agreements enforceable against the Borrower and each
other Loan Party that is a party thereto in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting the enforcement of creditors' rights generally and by general
principles of equity, (iii) the representations and warranties by the Borrower
and the other Loan Parties contained in the Credit Agreement and in the other
Loan Documents are true and correct on and as of the date hereof in all material
respects as though made as of the date hereof, and (iv) no Default or Event of
Default exists under the Credit Agreement or any of the other Loan
Documents.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

     

     

    Section
6. 
Governing
Law.  This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.

     

    Section
7.    Miscellaneous.  (a)
On and after the effectiveness of this Amendment, each reference in each Loan
Document to "this
Amendment", "this Note", "this Mortgage",
"hereunder",
"hereof" or
words of like import, referring to such Loan Document, and each reference in
each other Loan Document to "the Credit
Agreement", "the Notes", "the Mortgages",
"thereunder",
"thereof" or
words of like import referring to the Credit Agreement, the Notes, or the
Mortgage or any of them, shall mean and be a reference to such Loan Document,
the Credit Agreement, the Notes, the Mortgage or any of them, as amended or
otherwise modified by this Amendment; (b) the execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any default of the Borrower or any right, power or remedy
of the Administrative Agent or the Banks under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents and except as
otherwise modified by the terms hereof, the Credit Agreement and such other Loan
Documents shall remain in full force and effect; (c) this Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement; and (d) delivery of an executed counterpart of a signature page
to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.

     

    Section
8. 
Severability.  Any
provisions of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provisions so held to
be invalid.

     

    Section
9. 
Successors and
Assigns.  This Amendment is binding upon and shall inure to the
benefit of the Administrative Agent, the Issuing Bank, the Lenders and the
Borrower and their respective successors and assigns.

     

    Section
10.   Counterparts.  This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart.

     

    Section
11.  Headings.  The
headings, captions and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.

     

    Section
12.  Final
Agreement.  THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS,
INCLUDING THIS AMENDMENT, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.  THERE ARE NO ORAL AGREEMENTS BETWEEN THE
PARTIES.

     

    [Signature
Pages Follow]

     

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, each of the parties hereto has caused this Second Amendment to
Second Amended and Restated Credit Agreement to be executed by its officer(s)
thereunto duly authorized as of the date first above written.

     

    BORROWER:

     

    


     

    COMSTOCK RESOURCES,
INC.,

    a Nevada
corporation

    


     

    By:  /s/ROLAND O.
BURNS

    Name: Roland
O. Burns

    Title: Senior
Vice President

     

     

     

                ADMINISTRATIVE AGENT
AND LENDERS:

     

     

                BANK OF
MONTREAL, as
Administrative Agent and a Lender

    


     

                By:  /s/JAMES V.
DUCOTE

                Name: James V.
Ducote

                Title: Director

     

    


     

                BMO CAPITAL MARKETS
FINANCING, INC., as Lender


     

                By:  /s/JAMES V.
DUCOTE  

                Name: James V.
Ducote                                      

                                     
Title: Director

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    
 

    
      
        
          
            	 
      	
                    S-1

                  	 
      


          

          


        

         


      

      
         


        
          

        

      

      
         


      

    


                BANK OF AMERICA,
N.A., as a Lender

     

     

                By:  /s/JEFFREY
RATHKAMP

                Name: Jeffrey
Rathkamp

                Title: Managing
Director

     

     

     

                COMERICA BANK,
as a Lender

    


     

                By:  /s/REBECCA L.
WILSON

                Name: Rebecca L.
Wilson

                Title:Assistant Vice
President

     

     

     

                FORTIS CAPITAL
CORP., as a Lender

    


     

                By:  /s/MICHELE
JONES            

                Name: Michele
Jones

                Title: Director

     

     

                By:  /s/DARRELL
HOLLEY

                Name: Darrell
Holley

                Title: Managing
Director

     

     

     

                UNION BANK OF
CALIFORNIA, N.A.,

                as a
Lender

    


     

                By:  /s/WHITNEY
RANDOLPH

                Name: Whitney
Randolph

                Title: Vice
President

     

     

     

                BANK OF
SCOTLAND, as a Lender

    


     

                By:  /s/

                Name:

                Title:

     

     

     

     

     

     

     

     

    
 

    
      
         


      

      
        2

        
          

        

      

      
         


      

    


                CALYON NEW YORK BRANCH, as a
Lender

    
 

                By:

                Name:

                Title:

     

     

                By:

                Name:

                Title:

     

     

     

                THE ROYAL BANK OF
SCOTLAND plc,

                as a
Lender

     

     

                By:

                Name:

                Title:

     

     

     

                THE BANK OF NOVA
SCOTIA, as a Lender

    


     

                By:  /s/D.G.
MILLS

                Name: D.G.
Mills

                Title: Managing
Director

     

     

     

                REGIONS
BANK, successor by merger
to 
            AmSouth Bank, as a
Lender

    


     

                By:  /s/W.A.
PHILIPP

                Name: W.A.
Philipp

                Title: Vice
President

     

     

     

                COMPASS BANK,
as a Lender

    


     

                By:   /s/DOROTHY
MARCHAND

                Name: Dorothy
Marchand

                Title: Senior
Vice President

     

     

     

     

     

     

     

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

                

     

     

                CAPITAL ONE, NATIONAL
ASSOCIATION,

                as a
Lender

    


     

                By:  /s/NANCY M.
MAK

                Name: Nancy M.
Mak

                Title: Vice
President

     

     

        

                NATIXIS, as a
Lender

    


     

                By:  /s/DONOVAN C.
BROUSSARD

                Name:Donovan C.
Broussard

                Title: Managing
Director

     

     

                By:  /s/LIANA
TCHERNYSHEVA

                Name: Liana
Tchernysheva

                Title: Director

     

     

     

                U.S. BANK NATIONAL
ASSOCIATION,

                as a
Lender


     

     

                By:  /s/DARIA
MAHONEY

                Name: Daria
Mahoney

                Title: Vice
President

     

     

     

                KEYBANK NATIONAL
ASSOCIATION,

                as a
Lender

    


     

                By:  /s/TODD
COKER

                Name: Todd
Coker

                Title:Assistant Vice
President

     

     

     

                JPMORGAN CHASE BANK,
N.A.,

                as a
Lender

    


     

                By:  /s/ELIZABETH K.
JOHNSON

                Name: Elizabeth
K. Johnson

                Title: Vice
President

     

    


     

     

     

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

             

     

       

                SUNTRUST
BANK,

                as a
Lender

    


     

                By:  /s/YANN
PIRIO    

                Name: Yann
Pirio

                Title: Director

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    


     

     

     

     

     

     

     

     

     


    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    
 

    ACKNOWLEDGMENT
BY GUARANTORS

     

    Each of
the undersigned Guarantors hereby (i) consents to the terms and conditions of
that certain Second Amendment to Second Amended and Restated Credit Agreement
dated as of May 1, 2009 (the "Amendment"), (ii) acknowledges and agrees
that its consent is not required for the effectiveness of the Amendment, (iii)
ratifies and acknowledges its respective Obligations under each Loan Document to
which it is a party and affirms that the terms of its respective Guaranty
guarantees, and will continue to guarantee, the Obligations, after giving effect
to the Amendment, and (iv) represents and warrants that (a) no Default or
Event of Default has occurred and is continuing, (b) it is in full compliance
with all covenants and agreements pertaining to it in the Loan Documents, and
(c) it has reviewed a copy of the Amendment.

     

                COMSTOCK OIL &
GAS HOLDINGS, INC.

                COMSTOCK OIL &
GAS - LOUISIANA, LLC

                COMSTOCK OFFSHORE,
LLC

                COMSTOCK OIL &
GAS GP, LLC,

                      By
Comstock Resources, Inc., its sole member

                COMSTOCK OIL &
GAS, LP,

     

     

                      By
Comstock Oil & Gas GP, LLC,

                      its
general partner,

     

     

                      By
Comstock Resources, Inc., its sole member

     

     

                By:  /s/ROLAND O.
BURNS

                Name: Roland O.
Burns

                Title: Senior
Vice President

     

    


                COMSTOCK OIL &
GAS INVESTMENTS, LLC

     

    


     

                By:  /s/ROLAND O.
BURNS

                Name: Roland O.
Burns

                Title: Manager