AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 3 TO CREDIT AGREEMENT
#5807231
This Amendment No. 3 to Credit Agreement (this “Amendment”) dated as of November 14, 2018 (the “Effective Date”), is among Xxxxx Petroleum Company, LLC, a Delaware limited liability company (the “Borrower”), Xxxxx Petroleum Corporation, a Delaware corporation (the “Parent” and the “Guarantor”), Xxxxx Fargo Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”) and as issuing lender (in such capacity, the “Issuing Lender”), and the Lenders (as defined below).
RECITALS
A. Reference is made to that certain Credit Agreement dated as of July 31, 2017 (as amended by that certain Limited Waiver and Amendment No. 1 to Credit Agreement dated as of November 16, 2017, Amendment No. 2 to Credit Agreement dated as of March 8, 2018, and as further amended, restated, supplemented, or otherwise modified from time to time, including by this Amendment, the “Credit Agreement”) among the Borrower, the Parent, the Administrative Agent, the Issuing Lender and the financial institutions party thereto as lenders from time to time (the “Lenders”).
B. Subject to the terms and conditions set forth herein, (i) the parties hereto wish to amend the Credit Agreement as provided herein, and (ii) all the Lenders wish to increase the Borrowing Base to $850,000,000 in accordance with the regularly scheduled Borrowing Base redetermination process described in Section 2.2(b) of the Credit Agreement subject to the established Aggregate Elected Commitment Amount (as defined herein) of $400,000,000.
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:
Section 1.Defined Terms. As used in this Amendment, each of the terms defined in the opening paragraph and the Recitals above shall have the meanings assigned to such terms therein. Each term defined in the Credit Agreement and used herein without definition shall have the meaning assigned to such term in the Credit Agreement, unless expressly provided to the contrary.
Section 2. Other Definitional Provisions. Article, Section, Schedule, and Exhibit references are to Articles and Sections of and Schedules and Exhibits to this Amendment, unless otherwise specified. The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Amendment shall refer to this Amendment as a whole and not to any particular provision of this Amendment. The term “including” means “including, without limitation,”. Paragraph headings have been inserted in this Amendment as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this Amendment.
Section 3. Amendments to Credit Agreement. Schedule II of the Credit Agreement is hereby replaced in its entirety with Schedule II attached hereto and Schedule II attached hereto shall be deemed to be attached as Schedule II to the Credit Agreement.
Section 4. Borrowing Base. Subject to the satisfaction of the conditions below, the Borrowing Base is hereby redetermined to be $850,000,000 effective as of November 14, 2018, and such Borrowing Base shall remain in effect at that level until the Borrowing Base is next redetermined or adjusted pursuant to the terms of the Credit Agreement. For the avoidance of doubt, the Borrowing Base redetermination set forth in this Section 4 shall constitute the regularly scheduled Semi-Annual Redetermination to be made on or about November 1, 2018 pursuant to Section 2.2(b)(ii) of the Credit Agreement.
Section 5. Representations and Warranties. Each Credit Party represents and warrants that, as of the date hereof: (a) the representations and warranties of such Credit Party contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Effective Date as if made on and as of such date, except that any representation and warranty which by its terms is made as of a specified date is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) only as of such specified date; (b) no Default has occurred and is continuing; (c) the execution, delivery and performance of this Amendment are within such Credit Party’s powers and have been duly authorized by all necessary corporate, limited liability company, or partnership action; (d) this Amendment constitutes the legal, valid, and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity whether applied by a court of law or equity; (e) the execution, delivery and performance of this Amendment by such Credit Party do not require any authorization or approval or other action by, or any notice or filing with, any Governmental Authority other than those that have been obtained or provided and other than filings delivered hereunder to perfect Liens created under the Security Documents; and (f) the Liens under the Security Documents are valid and subsisting and secure the obligations under the Credit Documents.
Section 6. Conditions to Effectiveness. This Amendment shall become effective on the Effective Date and enforceable against the parties hereto upon the occurrence of the following conditions precedent:
(a) The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this Amendment, duly and validly executed and delivered by duly authorized officers of the Borrower, the Guarantors, the Administrative Agent, and each of the Lenders.
(b) The Borrower shall have paid to the Administrative Agent all reasonable out-of-pocket costs and expenses that have been invoiced and are payable pursuant to Section 10.1 of the Credit Agreement.
Schedule II
(c) The Administrative Agent shall have received such other documents, governmental certificates, agreements, and lien searches as the Administrative Agent or any Lender may reasonably request.
(d) The representations and warranties in this Amendment shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case it shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date, and no Default shall have occurred and be continuing.
(e) The Administrative Agent shall have received (i) duly executed Mortgages (or supplements to existing Mortgages) encumbering not less than 85% of PV10 of the Credit Parties’ Proven Reserves and not less than 85% of PV10 of all the Credit Parties’ PDP Reserves, in each case, as evaluated in the most recently delivered Engineering Report, and (ii) title information reasonably satisfactory to it on at least 85% of the PV10 of each of the Proven Reserves evaluated in the most recently delivered Engineering Report.
Section 7. Acknowledgments and Agreements.
(a) Each Credit Party acknowledges that on the date hereof all outstanding Secured Obligations are payable in accordance with their terms and each Credit Party waives any set-off, counterclaim, recoupment, defense, or other right, in each case, existing on the date hereof, with respect to such Secured Obligations. Each party hereto does hereby adopt, ratify, and confirm the Credit Agreement, as amended hereby, and acknowledges and agrees that the Credit Agreement, as amended hereby, is and remains in full force and effect, and each Credit Party acknowledges and agrees that its respective liabilities and obligations under the Credit Agreement, as amended hereby, and the other Credit Documents are not impaired in any respect by this Amendment.
(b) The Administrative Agent, the Issuing Lender, and the Lenders hereby expressly reserve all of their rights, remedies, and claims under the Credit Documents. Nothing in this Amendment shall constitute a waiver or relinquishment of (i) any Default or Event of Default under any of the Credit Documents, (ii) any of the agreements, terms or conditions contained in any of the Credit Documents, (iii) any rights or remedies of the Administrative Agent, the Issuing Lender, or any Lender with respect to the Credit Documents, or (iv) the rights of the Administrative Agent, the Issuing Lender, or any Lender to collect the full amounts owing to them under the Credit Documents.
(c) This Amendment is a Credit Document for the purposes of the provisions of the other Credit Documents. Without limiting the foregoing, any breach of representations, warranties, and covenants under this Amendment shall be a Default or Event of Default, as applicable, under the Credit Agreement.
Schedule II
Section 8. Reaffirmation of the Guaranty. Each Guarantor hereby ratifies, confirms, acknowledges and agrees that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of all the Guaranteed Obligations (as defined in the Guaranty), and its execution and delivery of this Amendment does not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty, in connection with the execution and delivery of amendments, consents or waivers to the Credit Agreement or any of the other Credit Documents.
Section 9. Reaffirmation of Liens. Each Credit Party (a) reaffirms the terms of and its obligations (and the security interests granted by it) under each Security Document to which it is a party, and agrees that each such Security Document will continue in full force and effect to secure the Secured Obligations as the same may be amended, supplemented, or otherwise modified from time to time, and (b) acknowledges, represents, warrants and agrees that the Liens and security interests granted by it pursuant to the Security Documents are valid, enforceable and subsisting and create an Acceptable Security Interest to secure the Secured Obligations.
Section 10. 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. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 11. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Credit Agreement.
Section 12. Severability. In case one or more of the provisions of this Amendment shall for any reason be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein or in the other Credit Documents shall not be affected or impaired thereby.
Section 13. Governing Law. This Amendment shall be deemed to be a contract made under and shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws principles (other than Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York).
Section 14. Entire Agreement. THIS AMENDMENT, THE CREDIT AGREEMENT, THE NOTES, AND THE OTHER CREDIT DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Schedule II
[SIGNATURES BEGIN ON NEXT PAGE]
Schedule II
EXECUTED to be effective as of the date first above written.
BORROWER:
XXXXX PETROLEUM COMPANY, LLC
By: /s/ Xxxx Xxxxx (Nov. 12, 2018)
Name: | Xxxx Xxxxx |
Title: CFO
GUARANTORS:
XXXXX PETROLEUM CORPORATION
By:/s/ Xxxx Xxxxx (Nov. 12, 2018)
Name: Xxxx Xxxxx
Title: CFO
Schedule II
ADMINISTRATIVE AGENT/ISSUING
LENDER/LENDER:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Administrative Agent, and a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
Schedule II
LENDERS:
BANK OF MONTREAL, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Manageing Director
Schedule II
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
Schedule II
ABN Amro Capital USA LLC,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Director
Schedule II
BOKF, N.A., as a Lender
By: /s/ Xxxxx Boredko
Name: Xxxxx Boredko
Title: Senior Vice President
Schedule II
CAPITAL ONE, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
Schedule II
CITIZENS BANK, N.A., as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Director
Schedule II
CATHAY BANK, as a Lender
By: /s/ Xxxxxxx X Xxxxxx XX
Name: Xxxxxxx X Xxxxxx XX
Title: Vice President
Schedule II
ING CAPITAL LLC, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Managing Director
Schedule II
XXXXXX XXXXXXX BANK, N.A., as a Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Authorized Signatory
Schedule II
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Associate Director
Schedule II
BP ENERGY COMPANY, as a Lender
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Attorney-in-Fact
Schedule II
XXXXXXX SACHS LENDING PARTNERS LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
Schedule II
MACQUARIE BANK LIMITED, as a Lender
By: /s/ Xxxx Xxxxxx-Xxxxx
Name: Xxxx Xxxxxx-Xxxxx
Title: Division Director
By: /s/ Liz Kuliang
Name: Liz Kuliang
Title: Associate Director
(POA Ref: #2468 dated 7 June 2017 expiring 31 March 2019,
signed in London)
Schedule II
IBERIA BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
Schedule II
ARVEST BANK, as a Lender
By: /s/ S. Xxxx Xxxxxx
Name: S. Xxxx Xxxxxx
Title: V.P. Commercial Banking
Schedule II
SCHEDULE II
PRICING GRID
Applicable Margins
Utilization Level* | Base Rate Advances | Eurodollar Advances | Commitment Fee Rate |
Level I | 0.75% | 1.75% | 0.50% |
Level II | 1.00% | 2.00% | 0.50% |
Level III | 1.25% | 2.25% | 0.50% |
Level IV | 1.50% | 2.50% | 0.50% |
Level V | 1.75% | 2.75% | 0.50% |
* Utilization Levels are described below and are determined in accordance with the definition of “Utilization Level”.
1. Level I: If the Utilization Level is less than 25%.
2. Level II: If the Utilization Level is greater than or equal to 25% but less than 50%.
3. Level III: If the Utilization Level is greater than or equal to 50% but less than 75%.
4. Level IV: If the Utilization Level is greater than or equal to 75% but less than 90%.
5. Level V: If the Utilization Level is greater than or equal to 90%.
Schedule II
EXECUTED to be effective as of the date first above written.
BORROWER:
XXXXX PETROLEUM COMPANY, LLC
By: | /s/ Xxxx Xxxxx |
Name: | Xxxx Xxxxx |
Title: CFO
GUARANTORS:
XXXXX PETROLEUM CORPORATION
By: | /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx
Title: CFO
[Signature Page to Amendment No. 3]
ADMINISTRATIVE AGENT/ISSUING
LENDER/LENDER:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Administrative Agent, and a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
[Signature Page to Amendment No. 3]
LENDERS:
BANK OF MONTREAL, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
[Signature Page to Amendment No. 3]
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
[Signature Page to Amendment No. 3]
ABN AMRO CAPITAL USA LLC,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Executive Director
[Signature Page to Amendment No. 3]
BOKF, N.A., as a Lender
By: /s/ Xxxxx Boredko
Name: Xxxxx Boredko
Title: Senior Vice President
[Signature Page to Amendment No. 3]
CAPITAL ONE, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
[Signature Page to Amendment No. 3]
CITIZENS BANK, N.A., as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Director
[Signature Page to Amendment No. 3]
CATHAY BANK, as a Lender
By: /s/ Xxxxxxx X Xxxxxx XX
Name: Xxxxxxx X Xxxxxx XX
Title: Vice President
[Signature Page to Amendment No. 3]
ING CAPITAL LLC, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Managing Director
[Signature Page to Amendment No. 3]
XXXXXX XXXXXXX BANK, N.A., as a Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Authorized Signatory
[Signature Page to Amendment No. 3]
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Associate Director
[Signature Page to Amendment No. 3]
BP ENERGY COMPANY, as a Lender
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Attorney-in-Fact
[Signature Page to Amendment No. 3]
XXXXXXX SACHS LENDING PARTNERS LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[Signature Page to Amendment No. 3]
MACQUARIE BANK LIMITED, as a Lender
By: /s/ Xxxx Xxxxxx-Xxxxx
Name: Xxxx Xxxxxx-Xxxxx
Title: Division Director
By: /s/ Liz Kuliang
Name: Liz Kuliang
Title: Associate Director
[Signature Page to Amendment No. 3]
IBERIA BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
[Signature Page to Amendment No. 3]
ARVEST BANK, as a Lender
By: /s/ S. Xxxx Xxxxxx
Name: S. Xxxx Xxxxxx
Title: V.P. Commercial Banking
[Signature Page to Amendment No. 3]
SCHEDULE II
PRICING GRID
Applicable Margins
Utilization Level* | Base Rate Advances | Eurodollar Advances | Commitment Fee Rate |
Level I | 0.75% | 1.75% | 0.50% |
Level II | 1.00% | 2.00% | 0.50% |
Level III | 1.25% | 2.25% | 0.50% |
Level IV | 1.50% | 2.50% | 0.50% |
Level V | 1.75% | 2.75% | 0.50% |
* Utilization Levels are described below and are determined in accordance with the definition of “Utilization Level”.
1. Level I: If the Utilization Level is less than 25%.
2. Level II: If the Utilization Level is greater than or equal to 25% but less than 50%.
3. Level III: If the Utilization Level is greater than or equal to 50% but less than 75%.
4. Level IV: If the Utilization Level is greater than or equal to 75% but less than 90%.
5. Level V: If the Utilization Level is greater than or equal to 90%.
Schedule II
