FORBEARANCE AGREEMENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
|
EXHIBIT
10.19
|
FINAL
EXECUTION VERSION
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06/12/08
TO
CREDIT AGREEMENT
THIS
FORBEARANCE AGREEMENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT (this
“Agreement”),
dated
as of June 2, 2008, is among Aurora Oil & Gas Corporation, a Utah
corporation (the “Borrower”),
BNP
PARIBAS, as administrative agent for the Lenders (in such capacity together
with
any successors thereto, the “Administrative
Agent”),
the
Lenders and the Secured Swap Providers.
RECITALS
WHEREAS,
the Borrower, the Administrative Agent and the Lenders entered into that
certain
Amended and Restated Credit Agreement, dated as of August 20, 2007 (together
with all amendments, restatements, supplements or other modifications
from time
to time made thereto, the “Credit
Agreement”),
pursuant to which the Lenders have made Loans to the Borrower;
WHEREAS,
the Borrower has notified the Administrative Agent that it has suffered
certain
identified Defaults or Events of Default and failed or may shortly fail
to
comply with certain covenants set forth in the Credit Agreement, with
the result
being that certain identified Defaults or Events of Default have occurred
or may
occur and be continuing under the Credit Agreement;
WHEREAS,
the Borrower has requested that the Administrative Agent, the Secured
Swap
Providers and the Lenders (1) permanently waive certain identified Events
of
Default, and (2) forbear and not waive, but instead refrain from exercising
any
available rights and remedies in respect of certain other potential identified
Defaults or Events of Default, and the Administrative Agent, the Secured
Swap
Providers and the Lenders are willing to do so but only on the terms,
conditions
and limitations hereinafter set forth;
WHEREAS,
Borrower, Xxxxxx Pipeline & Processing Co., LLC (the “Guarantor”)
and
the other signatories hereto also intend to amend the Credit Agreement
as
hereinafter set forth;
NOW,
THEREFORE, in consideration of the foregoing, the mutual agreements herein
contained and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereby agree
as
follows:
SECTION
1. DEFINED
TERMS.
Unless
expressly defined herein, all defined terms used herein shall have the
same
meanings as set forth in the Credit Agreement. Section references are
to
sections in the Credit Agreement unless otherwise noted.
SECTION
2. WAIVER
AND CONSENT.
2.1 Waiver
of Defaults.
The
Borrower has informed the Administrative Agent and the Lenders that it
has
failed to comply with the financial covenant in Section 9.01(a) for the
period
ending prior to and including March 31, 2008. In addition, the Borrower
has
informed the Administrative Agent and the Lenders that it has failed
to achieve
daily production required in Section 8.18 as of March 31, 2008. The Borrower
hereby requests, and the Lenders hereby do, permanently waive any Default
or
Event of Default under Section 10.01(d) and (e) resulting from the
non-compliance with Sections 9.01(a) and 8.18 for any date of determination
occurring on or prior to and including March 31, 2008 (such Defaults
and Events
of Default being referred to herein as the “Waived
Defaults”).
The
waiver in this Section 2.1 is limited to the Waived Defaults and shall
not be
construed as a waiver of any Defaults or Events of Default under such
Sections
of the Credit Agreement for any periods other than those specified herein
and
shall not apply to any other Defaults or Events of Default that may exist
or
arise later.
2.2 Consent
to Sale of Woodford Shale Oil and Gas Properties.
Subject
to compliance with the following sentence, the Lenders hereby consent
under
Section 9.12 to the sale of certain Oil and Gas Properties located in
Cleveland,
Pottawatomie and XxXxxxx Counties in Oklahoma which do not contain any
proved
reserves as of the date of this Agreement and which are commonly known
as the
Woodford Shale (the “Woodford
Shale Oil and Gas Properties”)
or all
of the Equity Interests of the Wholly-Owned Subsidiary owning the Woodford
Shale
Oil and Gas Properties (which owns no other Properties other than Properties
ancillary thereto); provided that (a) no Default or Event of Default
under any
Section of the Credit Agreement (other than the Designated Defaults or
the
Waived Defaults) exists at the time of such sale and (b) such sale is
for
substantially all cash and results in a gross cash amount in excess of
the
aggregate purchase price paid for the Woodford Shale Oil and Gas Properties.
In
the event the Borrower sells all or any material portion of the Woodford
Shale
Oil and Gas Properties (or the Equity Interests in the Wholly-Owned Subsidiary
owning such Properties), the Borrower will, on the next Business Day
after it
receives any cash proceeds associated therewith, use 50% of the net cash
proceeds to prepay Loans outstanding under the Credit Agreement, including
any
Borrowing Base Deficiency, to be applied in accordance with Section 3.04,
as it
may be modified by Section 3.2(f) of this Agreement.
SECTION
3. FORBEARANCE.
3.1 Acknowledgement
of Designated Defaults and Borrowing Base Deficiency.
The
Borrower and the Guarantor acknowledge and agree as follows:
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(a) the
Borrower is or may be in default of, is or may be in or breach of or
has failed
or may fail to comply with certain covenants contained in the Loan Documents,
as
and to the extent further described on Schedule I attached hereto (such
defaults
being collectively referred to herein as the “Designated
Defaults”);
(b) the
Majority Lenders in accordance with, and subject to, the terms of the
Loan
Documents have the right to accelerate the Loans outstanding under the
Credit
Agreement and to make demands upon the Borrower and the Guarantor for
the
payment in full of the Indebtedness for the Designated Defaults;
and
(c) as
of
June 6, 2008, the Administrative Agent sent to the Borrower a New Borrowing
Base
Notice which contained a Borrowing Base Deficiency, but which provided
that any
amortization of such deficiency required by the Credit Agreement may
be modified
by the subsequent agreement of the Lenders and the Borrower.
3.2 Agreement
to Standstill and Deferral of Amortization of Borrowing Base
Deficiency.
(a) The
Administrative Agent, for itself and on behalf of the Lenders and each
of the
Secured Swap Providers, agrees, subject to the complete satisfaction
of the
conditions precedent set forth in Section 6 hereof, to forbear and refrain
during the period from June 2, 2008, until and including August 15, 2008
(the
“Standstill
Period”)
from
(i) accelerating any Loans outstanding under the Credit Agreement, (ii)
exercising all rights and remedies and (iii) taking any other enforcement
action
under the Loan Documents at law or otherwise, in each case, as a result
of the
Designated Defaults. Nothing contained in this Agreement shall prejudice
any
rights or remedies that the Administrative Agent, any of the Secured
Swap
Providers or any of the Lenders may have to exercise any rights and remedies
during the Standstill Period with respect to any Defaults or Event of
Default
(whether now existing or hereafter occurring) other than the Designated
Defaults. Moreover, nothing contained in this Agreement shall prejudice
any
rights or remedies the Administrative Agent, any of the Secured Swap
Providers
or any of the Lenders may have to exercise any rights and remedies with
respect
to the Designated Defaults (other than the Waived Defaults) after expiration
of
the Standstill Period. The Standstill Period shall terminate upon the
occurrence
of any Forbearance Termination Event (as defined below).
(b) During
the Standstill Period, the Administrative Agent and the Lenders agree
to forbear
and refrain from initiating an Interim Redetermination of the Borrowing
Base
under Section 2.07(b). The foregoing shall not affect any adjustment
occurring
to the Borrowing Base under Section 9.12(d).
(c) Notwithstanding
Section 2.04(e) to the contrary, during the Standstill Period, the Designated
Defaults shall not serve to prevent the interest elections of the Borrower
otherwise permitted under Section 2.04. The Lenders will not impose Post-Default
Rate interest for the Designated Defaults during the Standstill Period
or
thereafter.
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(d) During
the Standstill Period, the Secured Swap Providers agree to forbear and
refrain
from declaring Defaults, Events of Default or Termination Events (as
defined in
the Swap Agreements) that results from any of the Designated
Defaults.
(e) The
Borrower shall continue to have and reserves all rights to invoke an
Interim
Redetermination of the Borrowing Base under the Credit Agreement (provided
that
any election after August 1, 2008 shall not result in a deferral of the
August
18, 2008 Borrowing Base Deficiency payment (if any) resulting from the
New
Borrowing Base Notice delivered on or about June 6, 2008).
(f) The
Lenders acknowledge and agree that, unless otherwise accelerated under
Section
10.02 (to the extent not prohibited by this Agreement), the first payment
(if
any) required to amortize the Borrowing Base Deficiency (if any) noted
in the
New Borrowing Base Notice will be deferred until August 18, 2008. For
the
avoidance of doubt, the parties agree that any prepayment made under
Section 2.2
of this Agreement with the net cash proceeds from the sale of the Woodford
Shale
Oil and Gas Properties (or the Equity Interests of the Wholly-Owned Subsidiary
owning such Properties) may be applied to reduce the amount of any installment
due in respect of such Borrowing Base Deficiency in direct order of
maturity.
3.3 Forbearance
Covenants.
The
Borrower agrees to comply with each of the following covenants during
the
Standstill Period:
(a) Monthly
Financial Reports.
The
Borrower shall deliver to the Administrative Agent on or before the twentieth
business day of each month, a detailed monthly financial reporting package
for
the previous month that shall include an account payables aging, status
of
working capital, monthly production reports and lease operating
statements.
(b) Calls
with Lenders.
The
Borrower and its advisors shall participate in monthly conference calls
with the
Administrative Agent, the Secured Swap Providers, the Lenders and their
advisors
during which a Financial Officer of the Borrower shall provide the
Administrative Agent with an update on restructuring and cost reduction
efforts.
(c) Additional
Mortgages.
No
later than August 18, 2008, the Borrower will execute and deliver (or
cause to
be executed and delivered) additional mortgages in form and substance
reasonably
satisfactory to the Administrative Agent such that after giving effect
to such
additional mortgages, the Administrative Agent, for the benefit of the
Lenders
and the Secured Swap Providers, will have first priority Liens on not
less than
90% of the PV10 of all proved Oil and Gas Properties evaluated in the
Reserve
Report most recently delivered prior to such date.
3.4 Forbearance
Termination Events.
Each of
the following events shall constitute a “Forbearance Termination
Event”:
(a) Failure
of the Borrower or the Guarantor to observe or perform any term, covenant,
condition or agreement applicable to it contained in this Agreement or
the
failure of any representation or warranty made in this Agreement to be
true in
all material respects when made; or
4
(b) The
occurrence of any Event of Default under the Credit Agreement or any
other Loan
Document, other than the Designated Defaults.
The
Borrower and the Guarantor acknowledge and agree that upon the earlier
of (i)
the occurrence of a Forbearance Termination Event, or (ii) August 15,
2008, the
Standstill Period shall terminate without the need for any further action
by, or
notice being due from, the Administrative Agent, any of the Secured Swap
Providers or any of the Lenders. Further, upon the occurrence of a Forbearance
Termination Event, the Administrative Agent, each of the Secured Swap
Providers
and each of the Lenders shall be entitled (but not required) to exercise
any or
all of their rights and remedies under and in accordance with the Loan
Documents, Swap Agreements or applicable law as a result of the Designated
Defaults (other than the Waived Defaults) and/or any other Defaults,
Events of
Default or Termination Events (as defined in the Swap Agreements) under
the Loan
Documents or the Swap Agreements.
SECTION
4. AMENDMENT
TO CREDIT AGREEMENT.
4.1 Amendment
to Section 1.02.
Section
1.02 is hereby amended as follows:
(a) The
definition of “Applicable Margin” is hereby amended by replacing “2.000%” with
“3.000%”in the Borrowing Base Utilization Grid for Eurodollar Loans for a
Borrowing Base Utilization Percentage greater than or equal to 75%.
4.2 Reaffirmation
of Obligations.
The
Borrower and the Guarantor each hereby acknowledges that the Credit Agreement,
the Notes and all of the Loan Documents constitute the valid and binding
obligations of the Borrower and the Guarantor enforceable against such
Person in
accordance with their respective terms, and the Borrower and the Guarantor
each
hereby reaffirms their respective obligations under the Loan Documents
and the
Swap Agreements. None of (a) the entry by the Administrative Agent or
any of the
Secured Swap Providers or any of the Lenders into this Agreement, (b)
the
acceptance of any payment from the Borrower or the Guarantor, (c) any
other
action or failure to act on the part of the Administrative Agent, any
of the
Secured Swap Providers or any of the Lenders, in any case, shall constitute
or
has constituted a modification or extension of the Credit Agreement,
the Notes
or any other Loan Documents or Swap Agreements or (d) any other action
or
failure to act on the part of the Administrative Agent, any of the Secured
Swap
Providers or any of the Lenders during the Standstill Period shall, in
any case,
constitute a waiver of any Defaults, Events of Default or Termination
Events
under the Loan Documents or the Swap Agreements, except as expressly
set forth
in this Agreement.
SECTION
5. REPRESENTATIONS
AND WARRANTIES.
The
Borrower and the Guarantor represent and warrant to the Administrative
Agent,
the Secured Swap Providers and the Lenders that:
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5.1 This
Agreement.
This
Agreement has been duly executed and delivered by the Borrower and the
Guarantor
and constitutes the legal, valid and binding obligation of the Borrower
and the
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally, and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at
law.
5.2 Credit
Agreement.
The
Credit Agreement and each of the Loan Documents, as they may be modified
by this
Agreement, remain in full force and effect and remain the valid and binding
obligation of the Borrower and the Guarantor enforceable against the
Borrower
and the Guarantor in accordance with their terms. The Borrower and the
Guarantor
each hereby ratifies and confirms the Credit Agreement and each of the
Loan
Documents to which it is a party, as they may have been previously amended
and
as they may be further amended by this Agreement.
5.3 Loan
Documents.
All
representations and warranties set forth in the Loan Documents are true
and
correct in all material respects as of the date hereof, except to the
extent any
such representations and warranties are expressly limited to an earlier
date, in
which case, such representations and warranties are true and correct
as of such
specified earlier date.
5.4 Nonwaiver.
Except
as set forth herein, the execution, delivery, performance and effectiveness
of
this Agreement shall not operate nor be deemed to be nor construed as
a waiver
(i) of any right, power or remedy of the Administrative Agent, any of
the
Secured Swap Providers or any of the Lenders under the Credit Agreement
or any
of the other Loan Documents or Swap Agreements, (ii) of any other term,
provision, representation, warranty or covenant contained in the Credit
Agreement, any other Loan Documents or Swap Agreements or any other instruments
or documents executed in connection therewith. Further, except as set
forth
herein, none of the provisions of this Agreement shall constitute, be
deemed to
be or construed as, a waiver of any Defaults or Events of Default under
the
Credit Agreement, as amended by this Agreement, or any Defaults, Events
of
Default or Termination Events (as defined in the Swap Agreements) under
the Swap
Agreements other than the Waived Defaults. Except as set forth herein,
any
Defaults, Events of Default (including, without limitation, the Designated
Defaults (other than the Waived Defaults)) and/or Termination Events,
if any,
shall continue and shall not be deemed waived or cured in any way by
the
execution of this Agreement.
5.5 Defaults.
After
giving effect to the terms of this Agreement, except for the Designated
Defaults, no event has occurred or is continuing which, with the giving
of
notice or the passage of time, or both, would constitute Defaults or
Events of
Default under any of the Loan Documents.
5.6 Third-Party
Actions.
No
attachments, executions, assignments for the benefit of creditors,
receiverships, conservatorships or voluntary or involuntary proceedings
in
bankruptcy or actions pursuant to any other debtor relief laws are pending
against the Borrower or the Guarantor.
6
5.7 Mutual
Agreement; Legal Consultation.
This
Agreement has been entered into without force or duress, of the free
will of the
Borrower, the Guarantor, the Administrative Agent, each of the Lenders
and the
Secured Swap Providers. The Borrower, the Guarantor, the Administrative
Agent,
each of the Lenders and each of the Secured Swap Providers have read
and
understand this Agreement, have consulted with and been represented by
legal
counsel in connection herewith, and have been advised by their counsel
of their
rights and obligations hereunder. The decision by each signatory to enter
into
this Agreement is a fully informed decision, and each such signatory
is aware of
all legal and other ramifications of such decision.
SECTION
6. CONDITIONS
PRECEDENT.
In
addition to all of the other conditions and agreements set forth herein,
the
effectiveness of this Agreement is subject to the following conditions
precedent:
6.1 Execution
of this Agreement.
The
Administrative Agent shall have received counterparts of this Agreement
duly
executed by the Borrower, the Guarantor, the Administrative Agent, each
of the
Secured Swap Providers and each of the Lenders.
6.2 Acknowledgment
of Guarantor.
The
Administrative Agent shall have received, from the Guarantor, a duly
executed
counterpart of the Guarantor Acknowledgment and Release in substantially
the
form of Exhibit
A.
6.3 Amendment
to the Second Lien Term Loan Agreement.
The
Administrative Agent shall have received a fully executed copy of the
Forbearance Agreement and Amendment No.1 to Second Lien Term Loan Agreement
in
substantially the form of Exhibit
B.
6.4 Fees
and Expenses.
The
Administrative Agent and/or the Lenders, as appropriate, shall have received
payment of all reasonable, necessary and documented out-of-pocket fees,
costs
and expenses incurred by the Administrative Agent and the Lenders in
connection
with this Agreement, including, but not limited to, such attorney’s fees, costs
and expenses incurred in connection with the evaluation, negotiation,
drafting,
implementation, administration and enforcement of this Agreement, and
any other
agreements, documents or instruments referred to herein or contemplated
hereby
to the extent invoiced.
SECTION
7. MISCELLANEOUS
7.1 Reference
to and Effect on the Credit Agreement.
Upon
the effectiveness of this Agreement, each reference in the Credit Agreement
to
“this Agreement”, “hereunder”, “hereof’, “herein”, or words of like import shall
mean and be a reference to the Credit Agreement, as it may be amended
hereby,
and each reference to the Credit Agreement in any other document, instrument
or
agreement executed and/or delivered in connection with the Credit Agreement
shall mean and be a reference to the Credit Agreement, as it may be amended
hereby.
7.2 Status
of Loan Documents; No Novation.
Except
as otherwise expressly provided in this Agreement, and both during, and
following the expiration of, the Standstill Period, the Loan Documents
and the
Indebtedness shall remain in full force and effect, and shall not be
waived,
modified, superseded or otherwise affected by this Agreement, except
as
expressly set forth herein. This Agreement is not a novation nor is it
to be
construed as a release, waiver or modification of any of the terms, conditions,
representations, warranties, covenants, rights or remedies set forth
in the Loan
Documents or the Swap Agreements, except as expressly set forth herein.
The
Administrative Agent, each of the Secured Swap Providers and each of
the Lenders
reserve all rights, claims and remedies that they have or may have against
the
Borrower or the Guarantor (or any other Person), except as expressly
set forth
in this Agreement.
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7.3 Release
of Lenders. IN
CONSIDERATION OF THIS AGREEMENT AND, SUBJECT TO THE CONDITIONS STATED
HEREIN,
THE BORROWER AND THE GUARANTOR EACH HEREBY RELEASES, ACQUITS, FOREVER
DISCHARGES, AND COVENANTS NOT TO XXX, THE ADMINISTRATIVE AGENT, EACH
OF THE
SECURED SWAP PROVIDERS AND EACH OF THE LENDERS, ALONG WITH ALL OF THEIR
BENEFICIARIES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SERVANTS, ATTORNEYS
AND
REPRESENTATIVES, AS WELL AS THEIR RESPECTIVE HEIRS, EXECUTORS, LEGAL
REPRESENTATIVES, ADMINISTRATORS, PREDECESSORS IN INTEREST, SUCCESSORS
AND
ASSIGNS (EACH INDIVIDUALLY, A “RELEASED
PARTY”
AND COLLECTIVELY, THE “RELEASED
PARTIES”)
FROM ANY AND ALL CLAIMS, DEMANDS, DEBTS, LIABILITIES, SUITS, OFFSETS
AGAINST THE
INDEBTEDNESS EVIDENCED BY THE LOAN DOCUMENTS AND ACTIONS, CAUSES OF ACTION
OR
CLAIMS FOR RELIEF OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED BY BORROWER OR THE GUARANTOR, WHICH BORROWER,
THE
GUARANTOR OR ANY SUBSIDIARY MAY HAVE OR WHICH MAY HEREAFTER ACCRUE RELATED
TO
ANY ACTIONS OR FACTS OCCURRING PRIOR TO THE DATE OF THIS AGREEMENT AGAINST
ANY
RELEASED PARTY, FOR OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER
OCCURRING ON OR PRIOR TO THE DATE OF THIS AGREEMENT, WHICH RELATE TO,
IN WHOLE
OR IN PART, DIRECTLY OR INDIRECTLY THE CREDIT AGREEMENT, ANY SWAP AGREEMENT,
ANY
NOTE, ANY SECURITY INSTRUMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
EVIDENCED THEREBY, INCLUDING, WITHOUT LIMITATION, ANY DISBURSEMENTS UNDER
THE
CREDIT AGREEMENT, ANY SWAP AGREEMENT, ANY NOTES, THE NEGOTIATION OF ANY
OF THE
CREDIT AGREEMENT, THE SWAP AGREEMENTS, THE NOTES, THE MORTGAGES OR THE
OTHER
LOAN DOCUMENTS, THE TERMS THEREOF, OR THE APPROVAL, ADMINISTRATION, ENFORCEMENT
OR SERVICING THEREOF.
7.4 Modification.
Any
amendments or modifications of this Agreement or any provision of this
Agreement
shall be effectuated in accordance with Section 12.02 .
7.5 Limitation
on Relationship.
This
Agreement and the Loan Documents do not and shall not be deemed or construed
to
create, a partnership, tenancy in common, joint tenancy, joint venture,
co-ownership or any other relationship aside from a debtor-creditor relationship
among, the Borrower, the Administrative Agent, the Secured Swap Providers
and
the Lenders.
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7.6 Notices.
Any
notice required or desired to be served, given or delivered hereunder
shall be
given in the manner provided in Section 12.01, mutatis
mutandis.
7.7 Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such invalidity, illegality or unenforceability without affecting the
validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall
not
invalidate such provision in any other jurisdiction.
7.8 Counterparts.
This
Agreement may be executed in any number of counterparts, including by
facsimile
signature or other electronic means (i.e., PDF or similar transmission)
with
hard copy to follow, each of which shall be deemed an original, but all
of which
together shall constitute one and the same agreement.
7.9 Headings.
The
various headings used in this Agreement are inserted for convenience
only and
shall not affect the meaning or interpretation of this Agreement or any
provision hereof.
7.10 GOVERNING
LAW; JURISDICTION; WAIVER OF JURY TRIAL, ETC. THE
PROVISIONS OF SECTION 12.09 SHALL APPLY TO THIS AGREEMENT.
7.11 Signing
by Lenders.
This
Agreement shall be effective, as provided in Section 6 above, upon execution
and
delivery hereof by the Borrower, the Guarantor, the Administrative Agent,
each
of the Secured Swap Providers and each of the Lenders.
7.12 Construction;
Integration.
This
Agreement has been freely negotiated by the parties and the principle
of
construction against draftsmen shall have no application in the interpretation
of this Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
7.13 Approval
of Amendment to Second Lien Documents.
The
Lenders hereby approve the Amendment to the Second Lien Term Loan Agreement
substantially in the form attached as Exhibit
B.
[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
9
IN
WITNESS WHEREOF, this Agreement is executed as of June 2, 2008.
| AURORA OIL & GAS CORPORATION | ||
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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XXXXXX
PIPELINE & PROCESSING CO., LLC
By:
AURORA
Oil & Gas Corporation, its sole manager
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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BNP
PARIBAS, as Administrative Agent, a Lender and Secured Swap
Provider
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By:/s/
Xxxxxxx X. Xxxxxxx
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Name:Xxxxxxx
X. Xxxxxxx
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Title:Managing
Director
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By:/s/
Xxxxx Xxxxxx
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Name:Xxxxx
Xxxxxx
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Title:Director
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COMERICA
BANK, as a Lender
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By:/s/
Xxxxx X. Xxxxxx
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Name:Xxxxx
X. Xxxxxx
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Title:Vice
President
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KEYBANK
NATIONAL ASSOCIATION, as a Lender
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By:
/s/
Xxxxxxxx X. Xxxx
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Name:
Xxxxxxxx
X. Xxxx
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Title:
EVP
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CIT
CAPITAL USA INC., as a Lender
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By:
/s/
Xxxxxx X. XxXxxx
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Name:
Xxxxxx
X. XxXxxx
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Title:
Vice
President
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EXHIBIT
A
[FORM
OF] GUARANTOR
ACKNOWLEDGMENT AND RELEASE
The
undersigned, Xxxxxx Pipeline & Processing Co., LLC,
a
Michigan limited liability company (the “Guarantor”),
hereby acknowledges and agrees to the terms of the foregoing Forbearance
Agreement and Amendment No. 1 to Credit Agreement, dated as of June 2,
2008 (the
“Forbearance
Agreement”).
Unless
expressly defined herein, all defined terms used herein shall have the
same
meanings as set forth in the Forbearance Agreement.
The
Guarantor hereby represents and warrants that the Amended and Restated
Guaranty
and Collateral Agreement (the “Guarantee”)
executed and delivered by the undersigned to the Administrative Agent,
dated as
of August 20, 2007, remains the valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with the terms of, and
the
Guarantor hereby
reaffirms its obligations under, such
Guarantee.
In
consideration of the Forbearance Agreement and, subject to the conditions
stated
therein, the Guarantor hereby releases, acquits and forever discharges
the
Administrative Agent, each of the Secured Swap Providers and each of
the Lenders
that executes and delivers a counterpart of the Forbearance Agreement
to the
Administrative Agent, along with all of their beneficiaries, officers,
directors, agents, employees, servants, attorneys and representatives,
as well
as their respective heirs, executors, legal representatives, administrators,
predecessors in interest, successors and assigns (each individually,
a
“Released
Party”,
collectively, the “Released
Parties”)
from
any and all claims, demands, debts, liabilities, suits, offsets against
the
indebtedness evidenced by the Loan Documents and actions, causes of action
or
claims for relief of whatever kind or nature, whether known or unknown,
suspected or unsuspected by the Borrower or the Guarantor, which the
Borrower or
the Guarantor may have or which may hereafter accrue against any Released
Party,
for or by reason of any matter, cause or thing whatsoever occurring on
or prior
to the date of this Agreement related to any actions or facts occurring
prior to
the date of the Forbearance Agreement, which relate to, in whole or in
part,
directly or indirectly the Credit Agreement, any Swap Agreement, any
Note, any
Mortgage, any other Loan Document or the transactions evidenced thereby,
including, without limitation, any disbursements under the Credit Agreement,
any
Notes, the negotiation of any of the Credit Agreement, the Swap Agreements,
the
Notes, the Mortgages or the other Loan Documents, the terms thereof,
or the
approval, administration, enforcement or servicing thereof.
XXXXXX
PIPELINE & PROCESSING CO., LLC
By:
Aurora Oil & Gas Corporation, its sole manager
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Dated:
Chief
Executive Officer
EXHIBIT
B
SCHEDULE
I
DESIGNATED
DEFAULTS
Any
Defaults or Event of Defaults under Section 10.01(d) and (e) resulting
from the
non-compliance with Sections 8.18 or 9.01(a) or (b) that occurred or
may occur
prior to and including June 30, 2008, even if reported after June 30,
2008.
Any
cross
defaults to Sections 8.18 or 9.01(a) or (b) of the Second Lien Term Loan
Agreement under Section 10.01(g) related to any period prior to and including
June 30, 2008.
For
the
avoidance of doubt, Designated Defaults do not include any Waived
Defaults.
