amendedca.htm


     

    
 

     

    
 

    Exhibit
10.1

    AMENDMENT NO.
3

    (Amended
and Restated Credit Agreement)

    


    This Amendment No. 3 ("Agreement") dated as
of May 7, 2009 ("Effective Date") is
among Abraxas Energy Partners, L.P., a Delaware limited partnership ("Borrower"), the
lenders party to the Credit Agreement described below from time to time as
Lenders, and Société Générale, as Administrative Agent (in such capacity, the
"Administrative
Agent") and as Issuing Lender (in such capacity, the "Issuing
Lender").

    


    RECITALS

    


    A.                      The
Borrower, the Lenders, the Issuing Lender and the Administrative Agent are
parties to the Amended and Restated Credit Agreement dated as of January 31,
2008, as amended by that certain Amendment No. 1 dated as of January 16, 2009
and that certain Amendment No. 2 dated as of April 30, 2009 (as so amended and
as the same may be further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement";
each capitalized term defined in the Credit Agreement and used herein without
definition shall have the meaning assigned to such term in the Credit Agreement,
unless expressly provided to the contrary).

    


    B.                      Contemporaneously
herewith, the Borrower, the Subordinated Agent and the Subordinated Lenders
(each as defined in the Credit Agreement) propose to make certain amendments to
the Subordinated Credit Agreement (as defined in the Credit Agreement) pursuant
to that certain Amendment No. 3 dated as of May 7, 2009 (the "Subordinated Credit
Agreement Amendment") among the Borrower, the Subordinated Agent and the
Subordinated Lenders.

    


    C.                      The
Borrower has requested that the Lenders (a) consent to (i) the Subordinated
Credit Agreement Amendment, (ii) the terms of that certain Amendment No. 2 to
Intercreditor and Subordination Agreement dated as of May 7, 2009 (the "Intercreditor
Amendment") among the Administrative Agent, the Subordinated Agent, the
Borrower and the Guarantors, and (iii) a refinancing of the Subordinated Debt,
and (b) make certain amendments to the Credit Agreement as provided
herein.

    


    THEREFORE, the Borrower, the Lenders,
the Issuing Lender and the Administrative Agent hereby agree as
follows:

    


    ARTICLE
I.

     

    DEFINITIONS

     

    Section
1.1                                Terms
Defined Above.  As used in this Agreement, each of the terms
defined in the opening paragraph and the Recitals above shall have the meanings
assigned to such terms therein.

     

    Section
1.2                                Other
Definitional Provisions.
The words "hereby", "herein", "hereinafter", "hereof", "hereto" and
"hereunder" when used in this Agreement shall refer to this Agreement as a whole
and not to any particular Article, Section, subsection or provision of this
Agreement.  Article, Section, subsection and Exhibit references herein
are to such Articles,

     

    


    
      
        
          
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    Sections,
subsections and Exhibits of this Agreement unless otherwise specified. All
titles or headings to Articles, Sections, subsections or other divisions of this
Agreement or the exhibits hereto, if any, are only for the convenience of the
parties and shall not be construed to have any effect or meaning with respect to
the other content of such Articles, Sections, subsections, other divisions or
exhibits, such other content being controlling as the agreement among the
parties hereto.  Whenever the context requires, reference herein made
to the single number shall be understood to include the plural; and likewise,
the plural shall be understood to include the singular.  Words
denoting gender shall be construed to include the masculine, feminine and
neuter, when such construction is appropriate; and specific enumeration shall
not exclude the general but shall be construed as
cumulative.  Definitions of terms defined in the singular or plural
shall be equally applicable to the plural or singular, as the case may be,
unless otherwise indicated.

     

    ARTICLE
II.

     

    CONSENT

     

    Section
2.1                                Consent;
Acknowledgment; Agreement.  Subject to the terms of this
Agreement, the Administrative Agent and the Lenders hereby consent to (a) the
execution and delivery of the Subordinated Credit Agreement Amendment and the
terms and conditions thereof, (b) the execution and delivery of the
Intercreditor Amendment and the terms and conditions thereof, and (c) a
refinancing in full and not in part of the Subordinated Debt; provided that (i) any
such refinancing is on terms and subject to documentation satisfactory to the
Administrative Agent and the Required Lenders in their sole discretion, (ii) any
such refinancing is subject to an intercreditor and subordination agreement in
form and substance satisfactory to the Administrative Agent and the Lenders in
their sole discretion, (iii) the principal amount of any such refinancing does
not exceed $20,000,000 in the aggregate at any time, (iv) any such refinancing
does not have a maturity date that is on or earlier than July 31, 2012, (v) any
such refinancing does not have any sinking fund payments, scheduled principal
payments, or mandatory redemption obligations that are due on or prior to July
31, 2012, (vi) any such refinancing does not impose any representation,
warranty, covenant, condition, mandatory prepayment, event of default, remedy or
other provision similar to the foregoing that is more restrictive or burdensome
than the terms and provisions of the Credit Agreement, and (vii) any such
refinancing and repayment of the Subordinated Debt complies with the terms of
the Intercreditor Agreement, including without limitation Section 2.01 of the
Intercreditor Agreement.  The consents by the Lenders and by the
Administrative Agent described in this Section 2.01 are collectively referred to
herein as the "Consents."  The Consents are contingent upon the
satisfaction of the conditions precedent described in Article VI
below.  Such Consents are strictly limited to the extent described
herein.  Nothing contained herein shall be construed to be a consent
to or a permanent waiver of the Sections covered by the Consents provided for
herein or any other terms, provisions, covenants, warranties or agreements
contained in the Credit Agreement or any other Loan Document.  The
Lenders reserve the right to exercise any rights and remedies available to them
in connection with any other present or future defaults with respect to any
provision of the Credit Agreement or any other Loan Document.  The
descriptions herein of the Consents are based upon the information provided to
the Lenders on or prior to the date hereof, and, to the extent that material
information is incorrect or omitted with respect to any activity, event or
circumstance that could result in a Default or Event of Default, such Consent
shall not be deemed to apply to such activity, event or
circumstance.  The failure of the Lenders to give notice to the
Borrower of any such Defaults or Events of Default is not intended

     

    


    
      
        
          
             

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    to be nor
shall be a waiver thereof.  The Borrower hereby agrees and
acknowledges that the Lenders require and will require strict performance by the
Borrower of all of its obligations, agreements and covenants contained in the
Credit Agreement and the other Loan Documents pursuant to the terms thereof, and
no inaction or action regarding any Default or Event of Default is intended to
be or shall be a waiver thereof.

     

    ARTICLE
III.

     

    AMENDMENTS

     

    Section
3.1                                Section
1.01 of the Credit Agreement is hereby amended as follows:

     

    (a)                                The
defined term "Applicable Margin" is deleted in its entirety and replaced with
the following:

     

    "Applicable Margin"
means, with respect to any Advance, (a) during such times as any Event of
Default exists, 3% per annum plus the rate per annum otherwise applicable under
clause (b) below, and (b) at all other times, the rate per annum set forth below
for the relevant Type of such Advance based on the relevant Utilization
applicable from time to time:

     

    
      	
              Utilization

            	
              Eurodollar
      Rate Advances

            	
              Reference
      Rate Advances

            
	
              Less
      than or equal to 25%

            	
              2.50%

            	
              1.50%

            
	
              Greater
      than 25% but less than 50%

            	
              2.75%

            	
              1.75%

            
	
              Equal
      to or greater than 50% but less than 75%

            	
              3.00%

            	
              2.00%

            
	
              Equal
      to or greater than 75% but less than 85%

            	
              3.25%

            	
              2.25%

            
	
              Equal
      to or greater than 85%

            	
              3.50%

            	
              2.50%

            


    

    


    The
Applicable Margin for any Advance shall change when and as the relevant date or
Utilization changes and when and as any such Event of Default commences or
terminates.

     

    (b)                                The
following new terms are added in alphabetical order:

     

    "Amendment No. 3 Effective
Date" means May 7, 2009.

     

    "May 14, 2009 Payment
Amount" means an amount equal to the lesser of (a) the amount of the cash
distribution made by the Borrower to Abraxas Energy Investments, LLC on or about
February 14, 2009 attributable to the fourth quarter of 2008 and (b)
$2,250,000.

     

    Section
3.2                                Section
2.02(a) of the Credit Agreement is hereby deleted in its entirety and replaced
with the following:

     

    (a)Borrowing
Base.  The Borrowing Base in effect as of the Amendment No. 3
Effective Date has been set by the Administrative Agent and the

     

    


    
      
        
          
             

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    Lenders
and acknowledged by the Borrower as $130,000,000.  Such Borrowing Base
shall remain in effect until it is reduced pursuant to Section
2.02(e).  The Borrowing Base shall be determined in accordance with
the standards set forth in Section 2.02(d) and is subject to periodic
redetermination or reduction pursuant to Sections 2.02(b), 2.02(c), 2.02(e) and
6.04(b).

     

    Section
3.3                                Section
2.02 of the Credit Agreement is hereby amended by adding a new subsection (e) to
the end thereof as follows:

     

    (e)May 14, 2009 Reduction
Amount.  The Borrowing Base shall be reduced as of May 14, 2009
by an amount equal to the May 14, 2009 Payment Amount.

     

    Section
3.4                                Section
2.06 of the Credit Agreement is hereby deleted in its entirety and replaced with
the following:

     

    Section
2.06.  Repayment of
Advances.  The Borrower shall repay to the Administrative Agent
for the ratable benefit of the Lenders the outstanding principal amount of each
Advance, together with any accrued interest thereon, in installments in the
aggregate amounts and on the dates indicated as follows or on such earlier date
pursuant to Section 7.02 or Section 7.03:

     

    
      	
              Date

            	
              Amount

            
	
              May
      14, 2009

            	
              May
      14, 2009 Payment Amount

            
	
              Maturity
      Date

            	
              all
      remaining principal, interest, fees and other amounts owing in respect of
      the Advances

            


    

    


    Section
3.5                                Section
7.01 of the Credit Agreement is hereby amended by (1) deleting "or" at the end
of subsection (o), (2) deleting the period at the end of subsection (p) and
replacing it with "; or", and (3) inserting the following new subsection
(q):

     

    (q)           APC Letter of
Credit.  (i) the Borrower fails to receive a letter of credit
in its favor on terms, including draw conditions, satisfactory to all of the
Lenders in their sole discretion and from an issuer satisfactory to all of the
Lenders in their sole discretion, in the amount of the May 14, 2009 Payment
Amount (the "APC Letter of Credit"), (ii) the Borrower fails to draw on the APC
Letter of Credit on or before May 14, 2009, or (iii) the Borrower fails to use
the proceeds of such draw to repay the Advances on May 14, 2009 in accordance
with Section 2.06; provided that if the
Borrower repays such Advances with funds received from APC, failure to comply
with (i), (ii) or (iii) shall not constitute an Event of Default.

     

    ARTICLE
IV.

     

    AGREEMENT

     

    Section
4.1                                Consent
Fee.  In connection with this Agreement, the Borrower agrees to
pay to the Administrative Agent for the account of each Lender having a
Commitment a consent

     

    


    
      
        
          
             

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    fee in an
amount equal to $2,400,000 (the "Consent
Fee").  The Consent Fee shall be due and payable on July 1,
2009.  Notwithstanding the foregoing, if the Borrower repays the
Subordinated Debt in full in accordance with the terms of the Intercreditor
Agreement on or before July 1, 2009, the Consent Fee shall be waived and
the Borrower shall not be required to pay such fee.

     

    ARTICLE
V.

     

    REPRESENTATIONS
AND WARRANTIES

     

    Section
5.1                                Representations
and Warranties.  The Borrower represents and warrants that: (a)
its representations and warranties contained in Article IV of the Credit
Agreement and its representations and warranties contained in the Security
Instruments, the Guaranties, and each of the other Loan Documents to which it is
a party are true and correct in all material respects on and as of the Effective
Date, as though made on and as of such date, except those representations and
warranties that speak of a certain date, which representations and warranties
were true and correct as of such date; (b) no Default has occurred and is
continuing; (c) the execution, delivery and performance of this Agreement are
within the corporate power and authority of  the Borrower and have
been duly authorized by appropriate corporate action and proceedings; (d) this
Agreement constitutes the legal, valid, and binding obligation of the Borrower
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the rights of creditors generally and general principles of equity; (e) there
are no governmental or other third party consents, licenses and approvals
required in connection with the execution, delivery, performance, validity and
enforceability of this Agreement; and (f) the Liens under the Security
Instruments are valid and subsisting and secure the Borrower's obligations under
the Loan Documents.

     

    ARTICLE
VI.

     

    CONDITIONS

     

    This
Agreement shall become effective and enforceable against the parties hereto upon
the occurrence of the following conditions precedent:

    


    Section
6.1                                Documentation.  The
Administrative Agent shall have received multiple original counterparts, as
requested by the Administrative Agent, of (a) this Agreement duly and validly
executed and delivered by duly authorized officers of the Borrower, the
Administrative Agent, the Issuing Lender and the Required Lenders (except as to
Section 2.1(b) which shall have been consented to in writing by all of the
Lenders) and (b) the Intercreditor Amendment.

     

    Section
6.2                                Subordinated
Credit Agreement Amendment.  The Administrative Agent shall
have received true and correct copies of the fully-executed Subordinated Credit
Agreement Amendment and such agreement shall have become effective.

     

    Section
6.3                                No
Default.  No Default shall have occurred and be continuing as
of the Effective Date.

     

    Section
6.4                                Representations.  The
representations and warranties in this Agreement shall be true and correct in
all material respects.

     

    


    
      
        
          
             

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    Section
6.5                                Fees and
Expenses.  The Borrower shall have paid all fees and expenses
of the Administrative Agent's outside legal counsel and other consultants
pursuant to all invoices presented for payment on or prior to the Effective
Date.

     

    ARTICLE
VII.

     

    MISCELLANEOUS

     

    Section
7.1                                Effect on
Loan Documents;
Acknowledgments.

     

    (a)                                The
Borrower acknowledges that on the date hereof all Obligations are payable
without defense, offset, counterclaim or recoupment.

     

    (b)                                The
Administrative Agent, the Issuing Lender, and the Lenders hereby expressly
reserve all of their rights, remedies, and claims under the Loan
Documents.  Nothing in this Agreement shall constitute a waiver or
relinquishment of (i) any Default or Event of Default under any of the Loan
Documents, (ii) any of the agreements, terms or conditions contained in any of
the Loan Documents, (iii) any rights or remedies of the Administrative Agent,
the Issuing Lender or any Lender with respect to the Loan Documents, or (iv) the
rights of the Administrative Agent, any Issuing Lender or any Lender to collect
the full amounts owing to them under the Loan Documents.

     

    (c)                                Each
of the Borrower, the Administrative Agent, the Issuing Lender, and the Lenders
does hereby adopt, ratify, and confirm the Credit Agreement, and acknowledges
and agrees that the Credit Agreement and all other Loan Documents are and remain
in full force and effect, and the Borrower acknowledges and agrees that its
liabilities under the Credit Agreement and the other Loan Documents are not
impaired in any respect by this Agreement or the consent and amendment granted
hereunder.

     

    (d)                                This
Agreement is a Loan Document for the purposes of the provisions of the other
Loan Documents.  Without limiting the foregoing, any breach of
representations, warranties, and covenants under this Agreement shall be a
Default or Event of Default, as applicable, under the Credit
Agreement.

     

    Section
7.2                                Counterparts.  This
Agreement may be signed in any number of counterparts, each of which shall be an
original and all of which, taken together, constitute a single
instrument.  This Agreement may be executed by facsimile signature and
all such signatures shall be effective as originals.

     

    Section
7.3                                Successors
and Assigns.  This Agreement shall be binding upon and inure to
the benefit of the Lenders, the Borrower, the Administrative Agent, the Issuing
Lender and their respective successors and assigns permitted pursuant to the
Credit Agreement.

     

    Section
7.4                                Invalidity.  In
the event that any one or more of the provisions contained in this Agreement
shall for any reason be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.

     

    


    
      
        
          
             

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    Section
7.5                                Governing
Law.  This Agreement
shall be deemed to be a contract made under and shall be governed by and
construed in accordance with the laws of the State of New York.

     

    Section
7.6                                RELEASE.  THE
BORROWER ACKNOWLEDGES THAT ON THE DATE HEREOF ALL OBLIGATIONS ARE PAYABLE
WITHOUT DEFENSE, OFFSET, COUNTERCLAIM OR RECOUPMENT.  IN ADDITION,
EACH OF THE BORROWER AND ITS SUBSIDIARIES (FOR THEMSELVES AND THEIR RESPECTIVE
SUCCESSORS, AGENTS, ASSIGNS, TRANSFEREES, OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, ATTORNEYS AND AGENTS) HEREBY RELEASES ANY AND ALL CLAIMS, CAUSES
OF ACTION OR OTHER DISPUTES IT MAY HAVE AGAINST THE ADMINISTRATIVE AGENT, THE
ISSUING LENDER, ANY OF THE LENDERS, LEGAL COUNSEL TO THE ADMINISTRATIVE AGENT,
THE ISSUING LENDER OR ANY OF THE LENDERS, CONSULTANTS HIRED BY ANY OF THE
FOREGOING, OR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SHAREHOLDERS,
AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS
OF ANY KIND OR NATURE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH,
THE CREDIT AGREEMENT OR THE LOAN DOCUMENTS, IN EACH CASE WHICH MAY HAVE ARISEN
ON OR BEFORE THE DATE OF THIS AGREEMENT.  EACH OF THE BORROWER AND ITS
SUBSIDIARIES HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND HAS
CONFERRED WITH ITS COUNSEL AND ADVISORS REGARDING ITS CONTENT, INCLUDING THIS
SECTION 7.6, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT, AND
HEREBY AGREES TO WAIVE ANY CLAIM THAT THE TERMS OF THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, THE RELEASES CONTAINED HEREIN) ARE INVALID OR OTHERWISE
UNENFORCEABLE.

     

    Section
7.7                                Entire
Agreement.
THIS AGREEMENT, THE
CREDIT AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.

     

    THERE
ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

     

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