OBSIDIAN ENERGY LTD. AMENDMENT AGREEMENT
Exhibit 10.35
Redacted Copy
Dated as of March 13, 2020
To the Holders of Notes Named in
the Signature Pages Hereto (the “Holders”)
Ladies and Gentlemen:
Reference is made to:
| (i) | the Note Purchase Agreement dated as of May 29, 2008 among Obsidian Energy Ltd. (formerly known as Penn West Petroleum Ltd.) (the “Company”) (as amended to (but not including) the date hereof, the “Series G NPA”) and, among others, the purchasers of the Series G Senior Guaranteed Notes issued thereunder (as amended to (but not including) the date hereof, the “Series G Notes”); |
| (ii) | the Note Purchase Agreement dated as of March 16, 2010 among the Company (as amended to (but not including) the date hereof, the “Series S NPA”) and, among others, the purchasers of the Series S Senior Guaranteed Notes issued thereunder (the “Series S Notes”); |
| (iii) | the Note Purchase Agreement dated as of December 2, 2010 among the Company (as amended to (but not including) the date hereof, the “Series X/Y/Z NPA”) and, among others, the purchasers of the Series X Senior Guaranteed Notes issued thereunder (the “Series X Notes”), the Series Y Senior Guaranteed Notes issued thereunder (the “Series Y Notes”) and the Series Z Senior Guaranteed Notes issued thereunder (the “Series Z Notes” and, together with the Series X Notes and the Series Y Notes, collectively, as amended to (but not including) the date hereof, the “Series X/Y/Z Notes”); and |
| (iv) | the Note Purchase Agreement dated as of November 30, 2011 among the Company (as amended to (but not including) the date hereof, the “Series EE NPA” and, together with the Series G NPA, the Series S NPA, and the Series X/Y/Z NPA, collectively, the “NPAs”) and, among others, the purchasers of the Series EE Senior Guaranteed Notes issued thereunder (as amended to (but not including) the date hereof, the “Series EE Notes” and, together with the Series G Notes, the Series S Notes, and the Series X/Y/Z Notes, collectively, the “Notes”; the Series G Notes, the Series S Notes and the Series X Notes are referred to, collectively, as the “Extending Notes”). |
WHEREAS, the Holders and the Company have agreed to certain amendments to the NPAs and the Notes; and
WHEREAS, all capitalized terms used and not defined herein have the respective meaning ascribed thereto in the NPAs.
NOW, THEREFORE, in consideration of the premises herein and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Company and the Holders agree as follows:
1. AMENDMENTS TO NPAs AND NOTES
The parties hereto hereby agree to negotiate in good faith to enter into, on or prior to March 31, 2020, documentation to amend the NPAs and the Notes in a manner consistent with Exhibit A attached hereto, it being acknowledged and agreed that “Most Favored Lender” under Section V – Covenants of such Exhibit shall apply to the covenants and events of default to be contained in such documentation.
2. AMENDMENTS TO SERIES S NPA AND SERIES S NOTES
Effective as of the date hereof, the Series S NPA and the Series S Notes are hereby amended by replacing each reference to “March 16, 2020” relating to the Series S Notes maturity date with “April 7, 2020”.
3. REPRESENTATIONS AND WARRANTIES
Representations and Warranties. The Company hereby represents and warrants to the Holders as follows:
3.1 Organization and Qualification. Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and, where legally applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation, partnership, trust or other legal entity and, where legally applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and to perform the provisions hereof.
3.2 Authorization, Etc. This Agreement has been duly authorized by all necessary corporate action on the part of the Company and does not require any registration with, consent or approval of, notice to or action by, any Person (including any Governmental Authority) in order to be effective and enforceable. The execution and delivery of this Agreement constitutes private and commercial acts rather than governmental or public acts of the Company. This Agreement, and the NPAs and the Notes, as amended hereby, constitute the legal, valid, and binding obligations of the Company, enforceable in accordance with their respective terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
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3.3 Compliance with Laws, Other Instruments, Etc. The execution and delivery of this Agreement and the performance by the Company of this Agreement, and the NPAs and the Notes, as amended hereby, will not (a) contravene, result in any breach of, or constitute a default under or result in the creation of any Lien (other than as contemplated by the NPAs) in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, security agreement, deed of trust, loan, purchase or credit agreement, lease, articles or by-laws or the legal equivalent of the foregoing, or any other agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or other Governmental Authority applicable to the Company or any Subsidiary, or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary.
3.4 Legal, Valid and Binding Obligations. Each of this Agreement, and the NPAs and the Notes, as amended hereby, and each other Financing Agreement constitutes a legal, valid and binding obligation of the Company and its Subsidiaries party thereto, enforceable against each of them in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar statutes affecting the enforcement of creditors’ rights generally and by general principles of equity.
3.5 No Default or Event of Default. No event has occurred and is continuing and no condition exists that, after giving effect to this Agreement, would constitute a Default or an Event of Default.
4. CONDITIONS PRECEDENT
This Agreement shall become effective as of the date on which all of the following conditions precedent have been satisfied in full (the “Effective Date”):
4.1 Representations and Warranties. The representations and warranties set forth in Section 3 hereof shall be true and correct on the Effective Date in all respects.
4.2 Bank Amendment. The Company shall deliver to each Holder a fully executed copy of an amendment to the Obsidian Energy Ltd. Amended and Restated Credit Agreement (the “Bank Credit Agreement”), effective as of March 13, 2020, or such other documentation as may be appropriate (the “Ninth Bank Amendment”) which, among other things, extends the reference to Xxxxx 0, 0000 xx Xxxxxxxx 0(x)(x), (xx), (xxx), (xx) and (vi) and Section 5(a) of the Bank Amendment to March 31, 2020. The “Bank Amendment ” means the Seventh Amending Agreement to the Obsidian Energy Ltd. Amended and Restated Credit Agreement, made effective as of February 28, 2020, between, inter alios, the Company and Royal Bank of Canada, as Administrative Agent.
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4.3 Fees. On or prior to the date hereof, the Company shall have paid to each Holder a fee of [REDACTED]% ([REDACTED] basis points) of the aggregate principal amount of Notes held by such Holder. Such payment shall be made in the manner and to the account for payment of principal and interest in respect of the Notes held by such Holder, as specified in the NPA or NPAs to which such Holder is a party.
4.4 Engagement Letters and Payment of Fees. On or prior to the date hereof, the Company shall have executed and delivered fee agreements with Akin Gump Xxxxxxx Xxxxx & Xxxx LLP and GLC Advisors & Co. (collectively, the “Advisors”), acceptable in form and substance to the Holders, and shall have paid all fees, expenses, disbursements and retainers of the Advisors invoiced on or prior to the date hereof. Without limiting the Company’s obligation to pay such amounts in accordance with such agreements, the Company acknowledges and agrees that any fees and expenses arising under such agreements shall form part of the Obligations and shall be secured by the Security.
5. MISCELLANEOUS
5.1 Ratification; No Waiver. Subject to the amendments set forth in Section 2, the NPAs, the Notes and the other Financing Agreements shall remain in full force and effect. The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of the Holders under the NPAs or any other Financing Agreement, nor constitute a waiver of any provision of the NPAs or any other Financing Agreement. The execution, delivery and effectiveness of this Agreement shall not be, and shall not be deemed to be, a course of action with respect to the NPAs or any other Financing Agreement upon which the Company may rely in the future, and the Company hereby expressly waives any claim to such effect.
5.2 Reference to and Effect on the NPAs and the Notes. On and after the date hereof, each reference in the NPAs, and in other documents describing or referencing the NPAs or the Notes, to (a) the “Agreement,” “Note Purchase Agreement,” “hereunder,” “hereof,” “herein,” or words of like import referring to the NPAs shall mean and be a reference to the NPAs as amended hereby and (b) the “Notes” or to any series of Notes shall mean and be a reference to the Notes as amended hereby.
5.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
5.4 Amendment. No amendment, modification, rescission, waiver or release of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Company and the Holders.
5.5 Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the Province of Alberta and the laws of Canada applicable therein.
5.6 Counterparts. This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original, but altogether only one instrument. Delivery of an executed signature page by facsimile or e-mail transmission shall be effective as delivery of a manually signed counterpart of this Agreement.
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5.7 Noteholder Representation. Each beneficial holder of Notes that is a signatory hereto, but is not the registered holder of such Notes, represents and warrants that it has the power and authority to bind such registered holder to this Agreement by its execution hereof with the same force and effect as if such registered holder had also executed and delivered this Agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Company and the undersigned Holders have caused this Agreement to be executed and delivered by their respective officer or officers thereunto duly authorized.
| OBSIDIAN ENERGY LTD. | ||
| By: | (signed) “Xxxxx X. Xxxxx” | |
| Name: Xxxxx X. Xxxxx | ||
| Title: Senior Vice President and Chief Financial Officer | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to NPAs Amendment Agreement – Obsidian]
| THE LINCOLN NATIONAL LIFE INSURANCE COMPANY | ||
| By: | Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney in Fact | |
| By: | (signed) [Name Redacted] | |
| Name: [Name Redacted] | ||
| Title: Senior Vice President | ||
[Signature Page to NPAs Amendment Agreement – Obsidian]
| THE PRUDENTIAL INSURANCE COMPANY OF AMERICA | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
| PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY | ||
| By: PGIM, Inc., as Investment Manager | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
| ZURICH AMERICAN INSURANCE COMPANY | ||
| By: Prudential Private Placement Investors, L.P. | ||
| (as Investment Advisor) | ||
| By: Prudential Private Placement Investors, Inc. | ||
| (as its General Partner) | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
| PRUDENTIAL ANNUITIES LIFE | ||
| ASSURANCE CORPORATION | ||
| By: PGIM, Inc., as Investment Manager | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
[Signature Page to NPAs Amendment Agreement – Obsidian]
| THE GIBRALTAR LIFE INSURANCE CO., LTD. | ||
| By: Prudential Investment Management Japan Co., Ltd., as Investment Manager | ||
| By: PGIM, Inc. as Sub-Adviser | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
| MTL INSURANCE COMPANY | ||
| By: Prudential Private Placement Investors, L.P. | ||
| (as Investment Advisor) | ||
| By: Prudential Private Placement Investors, Inc. | ||
| (as its General Partner) | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
| FARMERS NEW WORLD LIFE INSURACE COMPANY | ||
| By: Prudential Private Placement Investors, L.P. | ||
| (as Investment Advisor) | ||
| By: Prudential Private Placement Investors, Inc. | ||
| (as its General Partner) | ||
| By: | (signed) [Name Redacted] | |
| Title: Vice President | ||
[Signature Page to NPAs Amendment Agreement – Obsidian]
EXHIBIT A
Term Sheet
[REDACTED]
