SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.13
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 15,
2008 (the “Effective Date”), is entered into by and among PIONEER SOUTHWEST ENERGY PARTNERS
L.P., a Delaware limited partnership (the “Borrower”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, XXXXX FARGO BANK, N. A., as
Syndication Agent, and BMO CAPITAL MARKETS FINANCING, INC., as Documentation Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Swing Line Lender, the L/C Issuer, the Administrative
Agent, the Syndication Agent and the Documentation Agent have entered into that certain Credit
Agreement, dated as of October 29, 2007, as amended by that certain Amendment to Credit Agreement,
dated as of December 14, 2007, by and among the Borrower, the Lenders, the Swing Line Lender, the
L/C Issuer, the Administrative Agent, the Syndication Agent and the Documentation Agent (as may be
further amended or otherwise modified, the “Credit Agreement”);
WHEREAS, the Borrower, the Lenders, the Swing Line Lender, the L/C Issuer, the Administrative
Agent, the Syndication Agent and the Documentation Agent intend to waive certain provisions of the
Credit Agreement and amend certain provisions of the Credit Agreement as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual agreements set forth herein,
the parties hereto 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. Limited Waiver of Covenant to Deliver Financial Statements. The
Administrative Agent, L/C Issuer and the Lenders hereby waive compliance with the delivery
requirements set forth in clause (a) of Section 6.01 of the Credit Agreement with respect to the
fiscal year ended December 31, 2007.
SECTION 3. Amendment of Section 1.01 of the Credit Agreement. Section 1.01 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the definition of “Audited Financial Statements” and replacing it in
its entirety with the following:
“‘Audited Financial Statements’ means (a) the
audited Consolidated balance sheet of the predecessor to the
Borrower and its Consolidated Subsidiaries as of December
31, 2006, (b) the audited Consolidated balance sheet of the
predecessor to the Borrower and its Consolidated
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Subsidiaries as of December 31, 2007, and (c) in each case,
the related Consolidated statements of income or operations,
owner’s net equity and cash flows for such fiscal year of
the predecessor of the Borrower and its Consolidated
Subsidiaries, including the notes thereto, as reflected in
the Registration Statement.”
(b) by deleting the definition of “Initial Reserve Report” and replacing it in its
entirety with the following:
“‘Initial Reserve Report’ means the engineering
report concerning the Oil and Gas Properties to be owned by
the Operating Company pursuant to the terms of the Closing
Transactions Documents, prepared by Pioneer, as of December
31, 2007, and audited by Netherland, Xxxxxx & Associates,
Inc. or another independent engineering firm selected by the
Borrower and reasonably acceptable to the Administrative
Agent.”
(c) by deleting the definition of “Unaudited Financial Statements” and replacing it in
its entirety with the following:
“‘Unaudited Financial Statements’ means (a) the
unaudited pro forma Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of September
30, 2007 after giving effect to the Closing Transactions,
and the related pro forma Consolidated statements of
operations for the year ended December 31, 2006 and for the
nine months ended September 30, 2007 and (b) the unaudited
Consolidated balance sheet of the predecessor to the
Borrower and its Consolidated Subsidiaries as of September
30, 2007, and the related Consolidated statements of
operations, changes in equity and cash flows for the nine
months ended on that date, in each case, including the notes
thereto and as reflected in the Registration Statement and
(c) each additional unaudited balance sheet or related
statement of operations, changes in equity and cash flows of
the Borrower and its Consolidated Subsidiaries, or
predecessor of the Borrower and its Consolidated
Subsidiaries, that is submitted to the SEC and filed in
connection with the Registration Statement.”
(d) by inserting the following new definition immediately following the definition of
“Other Taxes”:
“‘Outside Closing Date’ means April 15, 2008.”
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SECTION 4. Amendment of Section 2.03 of the Credit Agreement. Clause (j) of Section
2.03 of the Credit Agreement is hereby amended by deleting the text “Arrangers’ Fee Letter” and
replacing it with the text “Administrative Agent’s Fee Letter”.
SECTION 5. Amendment of Section 4.01 of the Credit Agreement. Section 4.01 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the text of sub-clause (vii) of clause (a) thereof and replacing it in
its entirety with the following:
“(vii) a certificate signed by a Responsible Officer of the
General Partner certifying (A) that the conditions specified
in Sections 4.02(a) and (b) have been satisfied, and (B) that
there has been no event or circumstance since the date of the
Audited Financial Statements for the fiscal year ended
December 31, 2006 that has had or could be reasonably
expected to have, either individually or in the aggregate, a
Material Adverse Effect;”
(b) by deleting the text of clause (d) thereof and replacing it in its entirety with
the following:
“(d) The Closing Date shall have occurred on or before the
Outside Closing Date.”
SECTION 6. Amendment of Article IV of the Credit Agreement. Article IV of the Credit
Agreement is hereby amended by adding a new Section 4.03 as follows:
“4.03 Automatic Termination of Aggregate Commitments.
Notwithstanding anything herein to the contrary, in the
event that the Closing Date shall not have occurred on or
before the Outside Closing Date, the Aggregate Commitments
shall automatically terminate on such Outside Closing Date
without any further action by the Administrative Agent or
any Lender.”
SECTION 7. Amendment of Section 5.04 of the Credit Agreement. Section 5.04 of the
Credit Agreement is hereby amended as follows:
(a) by deleting the text of clause (a) thereof and replacing it in its entirety with
the following:
“(a) The Borrower has heretofore furnished to the Lenders
true, correct and complete copies of the Audited Financial
Statements, as of and for each of the fiscal years ended
December 31, 2006 and December 31, 2007, reported on by
Ernst & Young LLP, independent public accountants. Such
financial statements present fairly, in all
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material respects, the financial position and results of
operations and cash flows of the predecessor to the Borrower
and its Consolidated Subsidiaries on a consolidated basis as
of such dates and for such periods in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.”
(b) by deleting the text of clause (c) thereof and replacing it in its entirety with
the following:
“(c) Since the date of the Audited Financial Statements for
the fiscal year ended December 31, 2006, there has been no
material adverse change in the business, assets, properties,
liabilities (actual or contingent), operations, or financial
condition of the Borrower and its Consolidated Subsidiaries,
or the predecessor to the Borrower and its Consolidated
Subsidiaries, as applicable, taken as a whole.”
SECTION 8. Representations and Warranties, Etc. To induce the Lenders to enter into
this Amendment, the Borrower represents and warrants to the Administrative Agent and the and the
Lenders that as of the date hereof:
(a) each of the representations and warranties by the Borrower 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, except those that by their
terms relate solely as to an earlier date, in which event they shall be true and correct on
and as of such earlier date;
(b) the execution, delivery and performance of this Amendment has been duly authorized
by all requisite organizational action on the part of the Borrower;
(c) the Credit Agreement and each other Loan Document constitute valid and legally
binding agreements enforceable against each Loan Party that is a party thereto in accordance
with their respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting creditors’ rights generally and by general principles of
equity, regardless of whether considered in a proceeding in equity or at law; and
(d) no Default or Event of Default exists under the Credit Agreement or any of the
other Loan Documents.
SECTION 9. Ratification. The Borrower hereby ratifies and confirms, as of the
Effective Date, (a) the covenants and agreements contained in each Loan Document to which it is a
party, including, in each case, as such covenants and agreements may be modified by this Amendment
and the transactions contemplated thereby and (b) all of the Obligations under the Credit Agreement
and the other Loan Documents. This Amendment is an amendment to the
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Credit Agreement, and the Credit Agreement as amended hereby, is hereby ratified, approved and
confirmed in each and every respect.
SECTION 10. Effectiveness. This Amendment shall become effective as of the Effective
Date when all of the conditions set forth in this Section have been satisfied.
(a) The Administrative Agent shall have received duly executed counterparts of this
Amendment from the Borrower, the Administrative Agent, the L/C Issuer, the Syndication
Agent, the Documentation Agent and each Lender; and
(b) The Administrative Agent shall have received (i) all reasonable documented
out-of-pocket fees, costs and expenses incurred in connection with the negotiation,
preparation, execution and delivery of this Amendment and related documents (including all
reasonable documented fees, charges and disbursements of counsel to the Administrative
Agent), and (ii) all other reasonable fees, costs and expenses due and payable pursuant to
Section 10.04 of the Credit Agreement, in each case under either clause (i) or (ii) above,
to the extent then invoiced.
SECTION 11. Governing Law; Severability; Integration. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXAS. If any provision of
this Amendment or any other Loan Document is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this Amendment and the other
Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good
faith negotiations to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the illegal, invalid
or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. This Amendment and
the other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
SECTION 12. Execution in Counterparts. This Amendment may be executed by the parties
hereto in several counterparts (and by different parties hereto in different counterparts), each of
which shall constitute an original and all of which when taken together shall constitute a single
document.
SECTION 13. Successors and Assigns. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors and assigns;
provided, however, that (a) no Borrower may assign or transfer its rights or
obligations hereunder without the prior written consent of the Administrative Agent and each
Lender; and (b) the rights of sale, assignment and transfer of the Lenders are subject to Section
10.06 of the Credit Agreement.
SECTION 14. Miscellaneous. (a) On and after the effectiveness of this Amendment, each
reference in each Loan Document to “the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the Credit Agreement shall mean and be a
reference to the
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Credit Agreement 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, the L/C Issuer, the Syndication Agent, the Documentation Agent or the Lenders
under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents; (c) this Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement; and (d) a facsimile signature of
any party hereto shall be deemed to be an original signature for purposes of this Amendment.
SECTION 15. ENTIRE AGREEMENT. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG 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 AMONG THE
PARTIES.
[Remainder of Page Left Intentionally Blank]
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Second Amendment to Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
PIONEER SOUTHWEST ENERGY PARTNERS L.P. |
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By: Pioneer Natural Resources GP LLC, its general partner |
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By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Executive Vice President and Chief Financial Officer | |||
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Second Amendment to Credit Agreement
BANK OF AMERICA, N.A., as Administrative Agent |
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By: | /s/ Xxxxxx X. XxXxxx | |||
Name: | Xxxxxx X. XxXxxx | |||
Title: | Senior Vice President | |||
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Second Amendment to Credit Agreement
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender |
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By: | /s/ Xxxxxx X. XxXxxx | |||
Name: | Xxxxxx X. XxXxxx | |||
Title: | Senior Vice President | |||
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Second Amendment to Credit Agreement
XXXXX FARGO BANK, N.A., as Syndication Agent and a Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
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Second Amendment to Credit Agreement
BMO CAPITAL MARKETS FINANCING, INC., as Documentation Agent and a Lender |
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By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Director | |||
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Second Amendment to Credit Agreement
BARCLAYS BANK PLC, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Director | |||
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Second Amendment to Credit Agreement
CITIBANK, N.A., as a Lender |
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By: | /s/ Xxx Xxxxxx | |||
Name: | Xxx Xxxxxx | |||
Title: | Vice President | |||
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Second Amendment to Credit Agreement
DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxxx | |||
Title: | Director | |||
By: | /s/ Xxxxx Xxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxx | |||
Title: | Vice President | |||
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Second Amendment to Credit Agreement
DNB NOR BANK ASA, as a Lender |
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By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | First Vice President | |||
By: | /s/ Xxxx Xxx | |||
Name: | Xxxx Xxx | |||
Title: | First Vice President | |||
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Second Amendment to Credit Agreement
JPMORGAN CHASE BANK, N.A., as a Lender |
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By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: | Executive Director | |||
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Second Amendment to Credit Agreement
THE ROYAL BANK OF SCOTLAND plc, as a Lender |
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By: | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | Vice President | |||
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Second Amendment to Credit Agreement
TORONTO DOMINION (TEXAS) LLC, as a Lender |
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By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Authorized Signatory | |||
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Second Amendment to Credit Agreement
UBS LOAN FINANCE LLC, as a Lender |
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By: | /s/ Xxxx X. Xxxxx | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Associate Director Banking Products Services, US | |||
By: | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director Banking Products Services, US | |||
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Second Amendment to Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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By: | /s/ Xxxxx Xxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxx | |||
Title: | Vice President | |||
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Second Amendment to Credit Agreement
SOCIETE GENERALE, as a Lender |
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By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director | |||
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