FIRST AMENDMENT TO FIRST AMENDED AND RESTATED SENIOR CREDIT AGREEMENT DATED AS OF DECEMBER 23, 2008 AMONG UNIT CORPORATION, SUPERIOR PIPELINE COMPANY, L.L.C., UNIT DRILLING COMPANY, UNIT PETROLEUM COMPANY, and UNIT TEXAS DRILLING, L.L.C., AS...
Exhibit
10.1
FIRST
AMENDMENT TO
FIRST
AMENDED AND RESTATED
DATED
AS OF DECEMBER 23, 2008
AMONG
UNIT
CORPORATION,
SUPERIOR
PIPELINE COMPANY, L.L.C.,
UNIT
DRILLING COMPANY,
UNIT
PETROLEUM COMPANY,
and
UNIT
TEXAS DRILLING, L.L.C.,
AS
BORROWERS,
THE
LENDERS,
BANK
OF OKLAHOMA, NATIONAL ASSOCIATION,
AS
ADMINISTRATIVE AGENT FOR THE LENDERS,
and
as
CO-ARRANGER
BANK
OF AMERICA, N.A.,
CO-ARRANGER
BMO
CAPITAL MARKETS FINANCING, INC.,
SYNDICATION
AGENT
and
COMPASS
BANK,
DOCUMENTATION
AGENT
FIRST
AMENDMENT TO FIRST AMENDED AND RESTATED
THIS
FIRST AMENDMENT TO FIRST AMENDED AND RESTATED SENIOR CREDIT AGREEMENT, dated
effective as of December 23, 2008 (the "First Amendment"), is made and entered
into between and among UNIT CORPORATION, SUPERIOR PIPELINE COMPANY, L.L.C., UNIT
DRILLING COMPANY, UNIT PETROLEUM COMPANY and UNIT TEXAS DRILLING, L.L.C.
(collectively, the "Borrowers"), BANK OF OKLAHOMA, NATIONAL ASSOCIATION ("BOk"),
BANK OF AMERICA ("B of A"), BMO CAPITAL MARKETS FINANCING, INC. ("BMO"), COMPASS
BANK ("Compass"), FORTIS CAPITAL CORP. (Fortis"), COMERICA BANK ("Comerica") and
CALYON NEW YORK BRANCH ("Calyon") (individually a "Lender" and collectively, the
"Lenders") and BANK OF OKLAHOMA, NATIONAL ASSOCIATION, as agent for the Lenders
now or hereafter signatory parties thereto (the "Agent").
RECITALS:
A. The
Borrowers, the Lenders (as well as Sterling Bank which is no longer a part of
the syndication of Lenders) and the Agent entered into that certain First
Amended and Restated Senior Credit Agreement dated as of May 24, 2007 (the
"Existing Credit Agreement"), under which, subject to all of the terms and
conditions of the Existing Credit Agreement, the Lenders severally established
Commitments set forth on the Lenders Schedule until the Facility Termination
Date.
B. The
Borrowers have requested the Lenders to increase the Aggregate Commitment amount
by $50,000,000 from $275,000,000 to $325,000,000 until the existing Facility
Termination Date under the replacement Lenders Schedule set forth on Schedule 2
annexed to this First Amendment.
C. The
Lenders are willing to so increase the existing Aggregate Commitment by
$50,000,000 from $275,000,000 to $325,000,000 until the existing Facility
Termination Date for the Existing Credit Agreement, subject to the revised
Pricing Schedule set forth on the replacement Schedule 1 annexed to this First
Amendment and the other terms, provisions, conditions and limitations set forth
in the Existing Credit Agreement and this First Amendment.
THEREFORE,
subject to the terms, provisions, conditions and limitations hereinafter set
forth, the Lenders are willing to increase the Aggregate Commitment by
$50,000,000 in accordance with the replacement Lenders Schedule set forth on
replacement Schedule 2 annexed to this First Amendment, all subject to the
terms, provisions, conditions and limitations of the Existing Credit Agreement,
as amended by this First Amendment;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and other good and valuable consideration, receipt of which is
acknowledged by the parties hereto, the parties agree as follows:
1. Amendment to
Definition. The definition of "Alternative Base Rate" in the
Existing Credit Agreement is deleted and replaced in its entirety by the
following definition thereof:
2
"Alternative Base Rate" means, for any
day, a rate of interest per annum equal tothe higher of (i) the Prime Rate for
such day, or (ii) the sum of the Federal FundsEffective Rate for such day plus
one-half of one percent (0.50%); provided, however, in no event shall the
Alternative Base Rate be less than the sum of (x) the Eurodollar Rate for such
day plus (y) one hundred basis points (1.00%)".
2. Pricing
Schedule. The Pricing Schedule (Schedule 1) annexed to the
Existing Credit Agreement is deleted and replaced in its entirety by Schedule I
annexed hereto.
3. Lenders
Schedule. The Commitment of each Lender is set forth on the
replacement Lenders Schedule (Schedule 2) annexed to this First Amendment in
replacement of the original Schedule 2 annexed to the Existing Credit
Agreement. Notwithstanding the stated face principal amount of each
of the Notes, in no event shall the amount of a Lender's Commitment exceed the
amount designated on the Lenders Schedule for such Lender without the prior
written consent of the Lender.
4. Ratification. The
remaining terms, provisions and conditions set forth in the Existing Credit
Agreement (including without limitation, the consents, waivers and other
provisions of Article XVII thereof) shall remain in full force and effect and
are incorporated and adopted herein by reference. The Borrowers restate, confirm
and ratify the warranties, covenants and representations (subject to any time
limitations contained therein) set forth in the Existing Credit Agreement and
further represent to the Lenders and the Agent that, as of the date of this
First Amendment, no uncured Default or Event of Default exists under the
Existing Credit Agreement, as amended by this First Amendment (collectively, the
"Credit Agreement").
5. Conditions
Precedent. As express conditions precedent to the
effectiveness of this First Amendment, the Borrowers shall sign and deliver, or
cause to be executed and delivered to the Agent for the benefit of the Lenders,
each of the following:
a. this
First Amendment;
b. a
replacement Note in favor of and payable to the order of Compass in the original
stated face principal amount of $70,000,000;
c. corporate
and limited liability company incumbency and no default certificates from each
of the Borrowers, with resolutions attached, in form, scope and content
acceptable to the Agent; and
d. payment
to the Agent in immediately available funds (US Dollars) for the ratable (Pro
Rata Share) benefit of the Lenders of a Loan facility fee equal to seventy five
basis point (0.75%) on the $50,000,000 increase in the Aggregate Commitment
($375,000) and payment to the Agent for the sole benefit of Compass of a seventy
five basis point (0.75%) fee on the $13,750,000 prior Commitment of Sterling
Bank assumed by Compass concurrently herewith.
6. Fees and
Costs. In addition to payment of the Loan facility fee
described in paragraph 5(d) above, the Borrowers agree to pay to the Agent on
demand all reasonable costs, fees and expenses (including without limitation)
reasonable attorneys fees and legal expenses
3
incurred
or accrued by the Agent in connection with the preparation, negotiation,
signing, closing, delivery, and administration of this First
Amendment.
7. Defined
Terms. Any capitalized term used herein but not otherwise
defined shall have the meaning given to such term in the Existing Credit
Agreement.
SEE NEXT PAGE FOR
SIGNATURES
4
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly
executed and delivered in Tulsa, Oklahoma, effective as of the day and year
first above written.
UNIT CORPORATION, a Delaware
corporation,
SUPERIOR PIPELINE COMPANY,
L.L.C.,
an
Oklahoma limited liability company,
UNIT PETROLEUM COMPANY, an
Oklahoma
corporation,
UNIT DRILLING COMPANY, an
Oklahoma
corporation,
UNIT TEXAS DRILLING, L.L.C.,
an Oklahoma
limited
liability company
| By_____________________________________ | |
|
|
Xxxxx
X. Xxxxxxxx, President of each of
|
| UNIT CORPORATION, | |
|
|
UNIT
PETROLEUM COMPANY, and
|
|
|
UNIT
DRILLING COMPANY,
|
|
|
as
Manager of UNIT TEXAS DRILLING, L.L.C., and
|
| SUPERIOR PIPELINE COMPANY, L.L.C. |
| 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | |
| Xxxxx, Xxxxxxxx 00000 | |
|
|
Attention: Xxxxx
Xxxxxxxx
|
| Telephone: (000) 000-0000 | |
|
|
Facsimile: (000)
000-0000
|
5
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, in its individual corporate capacity as a Lender, as LC
Issuer and as Administrative Agent for the Lenders
| By__________________________________ | |
| Xxx Xxxxxxxxx | |
|
|
Senior
Vice President
|
|
|
000
Xxxx Xxxxxx Xxxxxx
|
|
|
Bank
of Oklahoma Tower
|
|
|
Xxx
Xxxxxxxx Xxxxxx
|
|
|
Xxxxx,
Xxxxxxxx 00000
|
| Telephone: (000) 000-0000 | |
|
|
Facsimile: (000)
000-0000
|
6
BANK OF AMERICA, N.A., a
Lender
| By__________________________________ | |
|
|
Xxxxxxxx
X. Xxxxx
|
|
|
Vice
President
|
|
|
000
Xxxxxxx Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
7
BMO CAPITAL MARKETS FINANCING,
INC., formerly Xxxxxx Xxxxxxx Financing, Inc., a
Lender
| By_________________________________ | |
|
|
_______________________(name)
|
|
|
_______________________(title)
|
|
|
Bank
of Montreal
|
|
|
Houston
Agency
|
|
|
000
Xxxxxxxxx Xxxxxx
|
|
|
0000
Xxxx xx Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
8
COMPASS BANK, a
Lender
| By___________________________________ | |
|
|
Xxxxxxxx
X. Xxxxx
|
|
|
Senior
Vice President
|
|
|
00
Xxxxxxxx Xxxxx
|
|
|
Xxxxx
0000X
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
9
COMERICA BANK, a
Lender
| By___________________________________ | |
|
|
_________________________(name)
|
|
|
_________________________(title)
|
|
|
0000
Xxxx Xxxxxx, 0xx
Xxxxx
|
|
|
Xxxxxx,
Xxxxx 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
10
FORTIS CAPITAL CORP., a
Lender
| By___________________________________ | |
|
|
Xxxxxxx
Xxxxx
|
|
|
Senior
Vice President
|
| By____________________________________ | |
|
|
Xxxxxxx
Xxxxxx
|
|
|
Managing
Director
|
|
|
00000
Xxxxx Xxxxxx Xxxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile: (000)
000-0000
|
00
XXXXXX XXX XXXX XXXXXX, a
Lender
| By___________________________________ | |
|
|
Xxxx
Xxxxx
|
|
|
Managing
Director
|
| By____________________________________ | |
|
|
Xxxxxxx
Xxxxxx
|
|
|
Managing
Director
|
|
|
0000
Xxxxxx Xxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
12
SCHEDULE
1
PRICING
SCHEDULE
|
Applicable
Margin
|
Level
I
Status
|
Level
II
Status
|
Level
III
Status
|
Level
IV
Status
|
|
Eurodollar
Rate
|
1.75%
|
2.00%
|
2.25%
|
2.50%
|
|
Floating
Rate
|
0.50%
|
0.75%
|
1.00%
|
1.25%
|
|
Applicable
Margin
|
Level
I
Status
|
Level
II
Status
|
Level
III
Status
|
Level
IV
Status
|
|
Commitment
Fee Rate
|
0.375%
|
0.375%
|
0.375%
|
0.50%
|
Notwithstanding
the foregoing Floating Rate margins designated above, in no event shall the
contract per annum Floating Rate be less than the Eurodollar Rate plus
1.00%.
For the
purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule:
"Level I
Status" exists at any date if the Borrowing Base Usage Percentage on such date
is less than 50%.
"Level II
Status" exists at any date if the Borrowing Base Usage Percentage on such date
is greater than or equal to 50% and less than 75%.
"Level
III Status" exists at any date if the Borrowing Base Usage Percentage on such
date is greater than or equal to 75% and less than 90%.
"Level IV
Status" exists at any date if the Borrowing Base Usage Percentage on such date
is greater than or equal to 90%.
"Status"
means either Level I Status, Level II Status, Level III Status or Level IV
Status.
The
Applicable Margin and Commitment Fee Rate will be determined on a daily basis in
accordance with the foregoing table based on the Borrowing Base Usage Percentage
on such day.
Letter of
Credit Fees: Issuance Fees are payable quarterly in advance,
determined as of the LC issue date based on the applicable Margin (Eurodollar
Rate column) for Eurodollar Loans on the stated amount of the LC and an LC
fronting fee of 0.125% per annum will be paid to the LC Issuer concurrent with
execution.
13
SCHEDULE
2
LENDERS
SCHEDULE
|
Lender
|
Aggregate
Commitment
Amount
|
Pro
Rata Share
|
|
Bank
of Oklahoma, N. A.
|
$60,937,500.00
|
18.75%
|
|
Bank
of America, N. A.
|
60,937,500.00
|
18.75%
|
|
BMO
|
60,937,500.00
|
18.75%
|
|
Compass
Bank
|
56,875,000.00
|
17.50%
|
|
Comerica
Bank
|
28,437,500.00
|
08.75%
|
|
Fortis
Capital Corp.
|
28,437,500.00
|
08.75%
|
|
Calyon
New York Branch
|
28,437,500.00
|
08.75%
|
|
TOTAL
|
$325,000,000.00
|
100.00%
|
14
PROMISSORY
NOTE
(COMPASS
BANK)
| $70,000,000.00 | December 23, 2008 |
| Tulsa, Oklahoma |
FOR VALUE
RECEIVED, the undersigned, UNIT CORPORATION, a Delaware corporation, SUPERIOR
PIPELINE COMPANY, L.L.C., an Oklahoma limited liability company, UNIT DRILLING
COMPANY, an Oklahoma corporation, UNIT PETROLEUM COMPANY, an Oklahoma
corporation, and UNIT TEXAS DRILLING, L.L.C., an Oklahoma limited liability
company (individually and collectively the "Borrowers"), jointly and severally
promise to pay to the order of COMPASS BANK ("Compass"), with interest, the
principal sum of SEVENTY MILLION and NO/100ths DOLLARS ($70,000,000.00) or, if
less, the aggregate principal amount of all advances outstanding from time to
time hereunder, made by Compass to Borrowers pursuant to the Credit Agreement
(hereinafter defined) and unless otherwise provided in the Credit Agreement, the
principal balance of this Note outstanding on the Facility Termination Date,
with interest payments due on each applicable Payment Date. This Note
is issued pursuant to and subject to the terms of a certain First Amended and
Restated Senior Credit Agreement dated as of May 24, 2007, as amended by the
First Amendment thereto dated effective as of even date herewith among
Borrowers, the Lenders signatory parties thereto (collectively the "Lenders"),
with Bank of Oklahoma, National Association, as the Administrative Agent (in
such capacity, the "Administrative Agent") (such Credit Agreement hereafter
amended, modified, supplemented or restated from time to time collectively
referred to as the "Credit Agreement"). Capitalized terms used and
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement.
Except as
hereinafter provided in connection with a Default, interest shall accrue on the
outstanding principal balance hereof and on any past due interest to the
Facility Termination Date at the rate or rates per annum determined pursuant to
the Pricing Schedule annexed to the Credit Agreement, as provided in
and calculated pursuant to the Credit Agreement.
The rate
of interest payable upon the indebtedness evidenced by this Note shall not at
any time exceed the maximum rate of interest permitted under the laws of the
State of Oklahoma or federal laws to the extent they apply to loans of the type
and character evidenced by this Note.
All
payments under this Note shall be made in legal tender of the United States of
America or in other immediately available funds at the offices of the
Administrative Agent at Bank of Oklahoma Tower, One Xxxxxxxx Center, Seven Xxxx
Xxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and no credit shall be given for any
payment received by check, draft or other instrument or item until such time as
the Administrative Agent or the holder hereof shall have received credit
therefor from the Administrative Agent's or the holder's collecting agent or, in
the event no collecting agent is used, from the bank or other financial
institution upon which said check, draft or other instrument or item is
drawn. If any payment is due upon a Saturday or Sunday or upon any
other day on which state or national banks in the State of Oklahoma are closed
for business by virtue of a legal holiday for such banks, such payment shall be
due and payable on the next succeeding Business Day, and interest shall accrue
to such day.
1
The
Borrowers may borrow and reborrow hereunder at any time and from time to time as
provided in the Credit Agreement and may prepay this Note in whole or in part,
subject to the prepayment limitations contained in the Credit Agreement;
provided, however, that any partial prepayment shall be applied first to accrued
interest, then to the unpaid principal balance hereof.
From time
to time the Borrowers and the Lenders may agree to extend the maturity date of
this Note or to renew this Note, in whole or in part, or a new note of different
form may be substituted for this Note and/or the rate of interest may be
changed, or changes may be made in consideration of loan extensions, and the
holder, from time to time, may waive or surrender, either in whole or in part,
any rights, guarantees, security interests, or liens given for the benefit of
the holder in connection with the payment and the securing the payment of this
Note; but no such occurrences shall in any manner affect, limit, modify or
otherwise impair any rights, guarantees or security of the holder not
specifically waived, released or surrendered in writing, nor shall the Borrowers
or any guarantor, endorser or any other person who is or might be liable hereon,
either primarily or contingently, be released from such liability by reason of
the occurrence of any such event. The holder hereof, from time to
time, shall have the unlimited right to release any person who might be liable
hereon; and such release shall not affect or discharge the liability of any
other person who is or might be liable hereon.
This Note
is subject to and governed by the terms, provisions, conditions and limitations
of the Credit Agreement concerning, among other matters, acceleration following
a Default, imposition of default rates of interest during the continuance of a
Default, methods of payment, minimum amounts of each Advance, selection of the
type of Advance and applicable Interest Period for new Advances, Borrowing Base
calculations, Maximum Credit Amount, Aggregate Commitment amounts, a negative
pledge of certain assets of the Borrowers, rights of set off or offset in
connection therewith and all other matters terms, provisions and agreements
therein prescribed or governed.
The
Borrowers and all endorsers, guarantors and sureties hereby severally waive
protest, presentment, demand, and notice of protest and nonpayment in case this
Note or any payment due hereunder is not paid when due; and they agree to any
renewal of this Note or to any extension, acceleration or postponement of the
time of payment, or any other indulgence, to any substituting, exchange or
release of any collateral and to the release of any party or person primarily or
contingently liable hereon without prejudice to the holder and without notice to
the Borrowers or any endorser, guarantor or surety. In the event of
any controversy, claim or dispute among the parties affecting or relating to the
subject matter or performance of this Note, the prevailing party shall be
entitled to recover from the non-prevailing party all of its reasonable costs,
expenses, including reasonable attorneys' and accountants' fees. In
the event the Administrative Agent or Compass is the prevailing party, the
Borrowers, and any guarantor, endorser, surety or any other person who is or may
become liable hereon, will, on demand, pay all such costs and
expenses.
This Note
is a replacement and modification of that certain promissory note dated as of
May 24, 2007 issued under the Existing Credit Agreement and payable by the
Borrowers to the order of Compass in the original principal amount of
$50,000,000.00.
2
This Note
is issued by the Borrowers in accordance with the provisions of Section 2.14(iv)
of the Credit Agreement and shall be governed by and construed in accordance
with the laws of the State of Oklahoma. Borrowers agree that all
suits or proceedings arising from or related to this Note or the Credit
Agreement may be litigated in courts, state or federal, sitting in Tulsa County,
State of Oklahoma. In furtherance of this provision, Borrowers hereby
waive any objection to such venue.
Notwithstanding
the single execution of this Note by the undersigned President of each of the
corporate Borrowers and the Manager of the limited liability company Borrowers,
as applicable, each of the Borrowers is jointly and severally bound by the terms
of this Note.
UNIT CORPORATION, a Delaware
corporation,
SUPERIOR PIPELINE COMPANY,
L.L.C.,
an
Oklahoma limited liability company,
UNIT PETROLEUM COMPANY, an
Oklahoma
corporation,
UNIT DRILLING COMPANY, an
Oklahoma
corporation,
UNIT TEXAS DRILLING, L.L.C.,
an Oklahoma
limited
liability company
| By_____________________________________ | |
| Xxxxx X. Xxxxxxxx, President of each of | |
| UNIT CORPORATION | |
| UNIT PETROLEUM COMPANY, and | |
| UNIT DRILLING COMPANY, as Manager of | |
| UNIT TEXAS DRILLING, L.L.C., and | |
| SUPERIOR PIPELINE COMPANY, L.L.C. |
3
