FIRST AMENDMENT
| Exhibit 10.1 | Execution Copy |
FIRST AMENDMENT
This First Amendment (this “Amendment”), dated as of November 1, 2011, is by and among The Xxxxxxxx Companies, Inc., a Delaware corporation (“Borrower”), the Lenders party hereto, and Citibank, N.A., as administrative agent for the Lenders (the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders, the Administrative Agent and Issuing Banks are parties to that certain Credit Agreement dated as of June 3, 2011 (the “Credit Agreement”; the capitalized terms of which are used herein unless otherwise defined herein);
WHEREAS, the Borrower has requested and the Required Lenders have agreed to amend the Credit Agreement as provided for herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
Section 1. Amendment to Credit Agreement.
(a) The definition of “‘consolidated’ or ‘Consolidated’” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting “after the WPX Separation, the WPX Entities” and (ii) inserting “after the effectiveness of the WPX Credit Agreement, the WPX Entities” in lieu thereof.
(b) Clause (b) of the definition of “Consolidated EBITDA” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting “after the WPX Separation, the WPX Entities” and (ii) inserting “after the effectiveness of the WPX Credit Agreement, the WPX Entities” in lieu thereof.
(c) Clause (z) of the definition of “Indebtedness” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting “after the WPX Separation, Indebtedness of the WPX Entities” and (ii) inserting “after the effectiveness of the WPX Credit Agreement, Indebtedness of the WPX Entities” in lieu thereof.
(d) The proviso in clause (b) of the definition of “Subsidiary” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting “(2) after the WPX Separation, the WPX Entities” and (ii) inserting “(2) after the effectiveness of the WPX Credit Agreement, the WPX Entities” in lieu thereof.
(e) The definition of “WPX Separation” set forth in Section 1.01 of the Credit Agreement is hereby amended in its entirety to read as follows:
“WPX Separation” means the earliest to occur of (a) the initial public offering of Class A common stock of WPX, (b) the distribution of common stock of WPX through a tax-free spin-off to shareholders of the Borrower and (c) a private sale of WPX’s Equity Interests, and any transaction related thereto (other than under any equity compensation plan); in each case with respect to all or a portion of WPX’s common stock or Equity Interests.
(f) The following defined term is added directly after the definition of “WPX” set forth in Section 1.01 of the Credit Agreement:
“WPX Credit Agreement” means that certain Credit Agreement, dated as of June 3, 2011, by and among WPX Energy, Inc., as Borrower, the Lenders from time to time party thereto and Citibank, N.A., as Administrative Agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
Section 2. Condition to Effectiveness. This Amendment shall become effective (the “Amendment Date”) when the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrower and the Required Lenders.
Section 3. Representations and Warranties. The Borrower hereby represents and warrants that, as of the Amendment Date:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower 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.
(b) The execution, delivery and performance by the Borrower of this Amendment and the consummation of the transactions contemplated hereby do not contravene (i) the Borrower’s organizational documents or (ii) any law or any restriction under any material agreement binding on or affecting the Borrower and will not result in or require the creation or imposition of any Lien prohibited by the Credit Agreement.
Section 4. Effect of Loan Document.
(a) The Credit Agreement and the Loan Documents remain in full force and effect, as amended hereby, and nothing herein shall act as a waiver of any of the Administrative Agent’s or Lenders’ rights under the Loan Documents, as amended, however denominated. After the Amendment Date, any reference to the Credit Agreement in any Loan Document shall be a reference to the Credit Agreement, as amended by this Amendment.
(b) This Amendment is a Loan Document for the purposes of the provisions of the other Loan Documents. Without limiting the foregoing, any breach of representations and warranties under this Amendment may be a Default or Event of Default under other Loan Documents as provided therein.
Section 5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York and the applicable laws of the United States of America.
Section 6. Counterparts. 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. Transmission by facsimile or electronic transmission (i.e., pdf) of an executed counterpart of this Amendment shall be deemed to constitute due and sufficient delivery of such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the Amendment Date.
| THE XXXXXXXX COMPANIES, INC. | ||
| By: | /s/ Xxxxxx X. Sailor | |
| Name: | Xxxxxx X. Sailor | |
| Title: | Vice President & Treasurer | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| CITIBANK, N.A., | ||
| Individually and as Administrative Agent and as an Issuing Bank | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Attorney-In-Fact | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| BARCLAYS BANK PLC, | ||
| Individually and as an Issuing Bank | ||
| By: | /s/ Xxx Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Assistant Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| JPMORGAN CHASE BANK, N.A., | ||
| Individually and as an Issuing Bank | ||
| By: | /s/ Xxxxxxxx Xxxxx | |
| Name: | Xxxxxxxx Xxxxx | |
| Title: | Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| BANK OF AMERICA, N.A., | ||
| Individually and as an Issuing Bank | ||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxx | |
| Title: | Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| THE ROYAL BANK OF SCOTLAND PLC | ||
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | Director | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| THE BANK OF NOVA SCOTIA | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK., individually and as an Issuing Bank | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Director | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| XXXXX FARGO BANK, N.A. | ||
| By: |
/s/ Xxxx X. Xxxxxxx | |
| Name: |
Xxxx X. Xxxxxxx | |
| Title: |
Director | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| UBS LOAN FINANCE LLC | ||
| 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 | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| ROYAL BANK OF CANADA | ||
| By: | /s/ Xxxxx X. York | |
| Name: | Xxxxx X. York | |
| Title: | Authorized Signatory | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| XXXXXX XXXXXXX BANK, N.A. | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Authorized Signatory | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| XXXXXXX XXXXX BANK USA | ||
| By: |
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| Name: |
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| Title: |
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Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| DEUTSCHE BANK AG NEW YORK BANK | ||
| By: | /s/ Xxxx X. Xxx | |
| Name: | Xxxx X. Xxx | |
| Title: | Vice President | |
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxx | |
| Title: | Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
| By: | /s/ Nupar Kumar | |
| Name: | Nupar Kumar | |
| Title: | Vice President | |
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Associate | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| BNP PARIBAS | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Director | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxx | |
| Title: | Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | ||
| By: |
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| Name: |
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| Title: |
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Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| TORONTO DOMINION (NEW YORK) LLC | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Authorized Signatory | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| SUMITOMO MITSUI BANKING CORPORATION | ||
| By: |
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| Name: |
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| Title: |
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Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| MIZUHO CORPORATE BANK, LTD. | ||
| By: | /s/ Xxxx Mo | |
| Name: | Xxxx Mo | |
| Title: | Authorized Signatory | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| DNB NOR BANK ASA | ||
| By: |
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| Name: |
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| Title: |
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| By: |
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| Name: |
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| Title: |
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Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| COMPASS BANK | ||
| By: | /s/ Xxx Xxxxx | |
| Name: | Xxx Xxxxx | |
| Title: | Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
| BOKF, NA DBA BANK OF OKLAHOMA | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Assistant Vice President | |
Signature Page to First Amendment – The Xxxxxxxx Companies, Inc.
