Re: Limited Consent
Exhibit 10.44
September 1, 2016
EXCO Resources, Inc.
00000 Xxxxx Xxxxx
Suite 1700
Dallas, Texas 75251
Attention: Chief Financial Officer
Re: Limited Consent
Ladies and Gentleman:
Reference is hereby made to that certain Amended and Restated Credit Agreement, dated as of July 31, 2013, among EXCO Resources, Inc., a Texas corporation, as the Borrower, certain Subsidiaries of the Borrower, as Guarantors, the lenders from time to time party thereto (the “Lenders”) and JPMorgan Chase Bank, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the Credit Agreement. References herein to any Section shall be to a Section of the Credit Agreement unless otherwise specifically provided.
Pursuant to Sections 3.02, 3.03, and 3.04, the next Scheduled Redetermination of the Borrowing Base shall occur on or about September 1, 2016. The Borrower has requested that the Scheduled Redetermination to occur on or about September 1, 2016 be postponed until November 1, 2016. Subject to the terms and conditions described herein, the Administrative Agent and the Lenders (or at least the required percentage thereof) are willing to postpone the Scheduled Redetermination to occur on or about September 1, 2016 until November 1, 2016 (the “Postponed Redetermination”).
The Borrower has also informed the Administrative Agent that the Credit Parties desire to offer the Borrowing Base Properties generally described on Schedule I attached hereto for sale (collectively, the “Specified Properties” and each, a “Specified Property”), and that the Credit Parties expect such sales to occur prior to the postponed Scheduled Redetermination requested by Borrower above. Section 7.03(a)(vii) prohibits the sale, transfer or other Disposition of Borrowing Base Properties by the Credit Parties unless the Engineered Value of all Borrowing Base Properties sold, transferred or otherwise Disposed of between Scheduled Redeterminations does not exceed five percent (5%) of the Borrowing Base most recently determined. In connection with such proposed sales, the Borrower has requested, to the extent required under the Credit Agreement, that the Administrative Agent and the Lenders (or at least the required percentage thereof) consent to the sale of each Specified Property. Subject to the terms and conditions described herein, to the extent required under the Credit Agreement, the
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent – Page 1
Administrative Agent and the Lenders (or at least the required percentage thereof) are willing to consent to the sale, transfer or other Disposition of the Specified Properties.
Accordingly, subject to the terms and conditions set forth below, and in reliance on the representations, warranties, acknowledgments and agreements contained herein, the Administrative Agent and the Lenders (or at least the required percentage thereof) hereby consent and agree to:
(a) the Postponed Redetermination; provided that, from and after the date hereof and until the date such Postponed Redetermination becomes effective, (i) the Borrower shall not request that (A) the Lenders make any Loans and/or (B) the Issuing Bank issue, amend, renew or extend any Letter of Credit, if at the time of and immediately after giving effect to such Borrowing or issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Aggregate Revolving Credit Exposure would exceed $300,000,000 and (ii) Borrower and the other Credit Parties agree that any request made in violation of clause (i) above shall be null and void and Lenders shall not be obligated to make any Loans and the Issuing Bank shall not be obligated to issue, amend, renew or extend any Letter of Credit pursuant to any such request; provided further, that notwithstanding the foregoing, the Borrower shall be permitted to use the existing Borrowing Base amount of $325,000,000 for purposes of calculating the Consolidated Current Ratio for the fiscal quarter ending September 30, 2016; and
(b) the sale, transfer or other Disposition of each Specified Property, notwithstanding the restrictions contained in Section 7.03(a)(vii); provided that:
(i) the sale of such Specified Property is consummated prior to November 1, 2016;
(ii) on the date such sale is consummated, no Default or Event of Default has occurred and is continuing or would result from such sale;
(iii) the consideration received in respect of such sale shall be equal to or greater than the fair market value of such Specified Property (as reasonably determined by the chief executive officer or the president (pursuant to authority provided for in the Organizational Documents of the Borrower or under separate authorizing resolutions of the Board of Directors of the Borrower) or the Board of Directors of the Borrower, and if requested by the Administrative Agent or the Required Lenders, the Borrower shall deliver a certificate of a Responsible Officer certifying to that effect); and
(iv) one hundred percent (100%) of the consideration received from such sale shall be in the form of cash or Permitted Investments.
As consideration for the agreements set forth herein, the Borrower hereby agrees to pay to X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”) for the account of each Lender that executes this limited consent before 2:00 p.m. (Dallas, Texas time) on Thursday, September 1, 2016 (each such Lender a “Consenting Lender”), a consent fee in an amount equal to the sum of 10 basis points
of each Consenting Lender’s Commitment, which consent fee shall be due and payable on the effective date of this limited consent and shall be allocated to the Consenting Lenders based on their Applicable Percentage on the date hereof.
The entire amount of the fees payable hereunder will be fully earned upon becoming due and payable in accordance with the terms hereof. All fees payable hereunder shall be paid in immediately available funds and shall be in addition to reimbursement of our out-of-pocket expenses and any other fees specified in the Credit Agreement and the other Loan Documents. The Borrower agrees that, once paid, the fees or any part thereof payable hereunder shall not be refundable under any circumstances. The Borrower agrees that X.X. Xxxxxx may share the fees payable hereunder with the other Lenders as set forth above.
By its signature below, each Credit Party agrees that, except as expressly set forth above, nothing herein shall be construed as (a) a consent or agreement to, a waiver or continuing waiver of or a modification of any of the provisions of the Credit Agreement or any other Loan Documents, including Sections 3.02, 3.03, 3.04 or 7.03(a)(vii), (b) a consent by the Lenders to allow the Borrower or any other Credit Party to sell, transfer or otherwise dispose of any other Borrowing Base Properties under Section 7.03(a)(vii) other than as expressly permitted under the Credit Agreement, or (c) a waiver of any Default or Event of Default now existing or hereafter arising under the Credit Agreement or any other Loan Document. The consent set forth herein is expressly limited as follows: (x) such consent is limited solely to the postponement of the Scheduled Redetermination and sale of the Specified Properties, and (y) such consent is a limited one-time consent, and nothing contained herein shall obligate the Lenders to grant any additional or future consent, or to grant (i) any waiver of Sections 3.02, 3.03, 3.04 or 7.03(a)(vii) or any other provision of the Credit Agreement or any other Loan Document or (ii) any waiver of any Default or Event of Default now existing or hereafter arising under the Credit Agreement or any other Loan Document.
By its signature below, each Credit Party hereby (a) acknowledges and agrees that the Credit Agreement and the other Loan Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect; (b) ratifies and reaffirms its obligations under, and acknowledges, renews and extends its continued liability under, the Credit Agreement and each other Loan Document to which it is a party; (c) ratifies and reaffirms all of the Liens securing the payment and performance of the Obligations; (d) represents and warrants to the Administrative Agent and the Lenders that, as of the date hereof, (i) all of the representations and warranties contained in the Credit Agreement and each Loan Document to which it is a party are true and correct in all material respects, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date, and (ii) no Default or Event of Default has occurred and is continuing and (e) acknowledges and agrees that this letter agreement shall constitute a Loan Document for all purposes and in all respects.
This limited consent shall become effective as of the date first written above when and only when the Administrative Agent shall have received duly executed counterparts of this limited consent signed by each Credit Party and the Lenders (or at least the required percentage thereof).
This limited consent shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York. This limited consent may be executed in counterparts with each counterpart constituting an original and all of the counterparts, once executed, constituting but one original. Delivery of an executed counterpart by facsimile or other electronic means shall be effective as delivery of an original executed counterpart.
[Signature Pages Follow]
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent – Page 4
If the foregoing is acceptable to you, please execute a copy of this limited consent in the spaces provided below to evidence your acceptance and approval of the foregoing and return a fully-executed counterpart of this limited consent to the attention of the undersigned.
Very truly yours,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Officer
X.X. XXXXXX SECURITIES LLC,
as Sole Bookrunner and Co-Lead Arranger
By: /s/ Xxxxxxxxx X'Xxxxxxx
Name: Xxxxxxxxx X’Xxxxxxx
Title: Authorized Officer
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
BMO XXXXXX BANK N.A.,
as a Lender
as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
UBS AG, STAMFORD BRANCH,
as a Lender
as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Associate Director
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
Name: Xxxxxxx Xxxxx
Title: Director
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
CREDIT SUISSE AG, Cayman Islands Branch,
as a Lender
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxxxxxx
Name: Xxxxx Xxxxxxxxxxx
Title: Authorized Signatory
Name: Xxxxx Xxxxxxxxxxx
Title: Authorized Signatory
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
NATIXIS,
as a Lender
as a Lender
By: /s/ Xxxxx Xx Foyer
Name: Xxxxx Xx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
Name: Xxxxxx Xxxx
Title: Vice President
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Name: Xxxxx Xxxxxxxxx
Title: Vice President
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
XXXXXXX XXXXX BANK USA,
as a Lender
as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
CAPITAL ONE, NATIONAL ASSOCIATION,
as a Lender
as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
Name: Xxxxx Xxxxxxxx
Title: Vice President
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
CIT FINANCE LLC, as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
Name: Xxxxx Xxxxxx
Title: Vice President
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
ING CAPITAL LLC, as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Managing Director
Name: Xxxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Director
Name: Xxxx Xxxxxx
Title: Director
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
ACCEPTED AND AGREED TO:
BORROWER:
EXCO RESOURCES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President, acting Chief Financial Officer and Treasurer
GUARANTORS:
EXCO HOLDING (PA), INC.
EXCO PRODUCTION COMPANY (PA), LLC
EXCO PRODUCTION COMPANY (WV), LLC
EXCO RESOURCES (XA), LLC
EXCO SERVICES, INC.
EXCO MIDCONTINENT MLP, LLC
EXCO PARTNERS GP, LLC
EXCO PARTNERS OLP GP, LLC
EXCO HOLDING MLP, INC.
EXCO PRODUCTION COMPANY (PA), LLC
EXCO PRODUCTION COMPANY (WV), LLC
EXCO RESOURCES (XA), LLC
EXCO SERVICES, INC.
EXCO MIDCONTINENT MLP, LLC
EXCO PARTNERS GP, LLC
EXCO PARTNERS OLP GP, LLC
EXCO HOLDING MLP, INC.
EXCO LAND COMPANY, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President, acting Chief Financial Officer and Treasurer
EXCO OPERATING COMPANY, LP
By: EXCO Partners OLP GP, LLC,
its general partner
its general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President, acting Chief Financial Officer and Treasurer
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
EXCO GP PARTNERS OLD, LP
By: EXCO Partners GP, LLC,
its general partner
its general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President, acting Chief Financial Officer and Treasurer
RAIDER MARKETING, LP
By: Raider Marketing GP, LLC,
its general partner
its general partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Signature Page
Schedule I
Specified Properties
See attached.
JPMorgan Chase Bank, N.A. – EXCO – Limited Consent
Schedule I
