FOURTEENTH AMENDMENT TO AMENDED, RESTATED AND CONSOLIDATED REVOLVING CREDIT AGREEMENT DATED AS OF FEBRUARY 4, 2022 AMONG DIVERSIFIED GAS & OIL CORPORATION, AS BORROWER, THE GUARANTORS PARTY HERETO, KEYBANK NATIONAL ASSOCIATION, AS ADMINISTRATIVE...
Exhibit 4.17
FOURTEENTH AMENDMENT
TO
AMENDED, RESTATED AND CONSOLIDATED
REVOLVING CREDIT AGREEMENT
DATED AS OF FEBRUARY 4, 2022
AMONG
DIVERSIFIED GAS & OIL CORPORATION,
AS BORROWER,
THE GUARANTORS PARTY HERETO,
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS PARTY HERETO
FOURTEENTH AMENDMENT TO AMENDED, RESTATED
AND CONSOLIDATED REVOLVING CREDIT AGREEMENT
This Fourteenth Amendment to Amended, Restated and Consolidated Revolving Credit Agreement (this “Fourteenth Amendment”) dated as of February 4, 2022, is among Diversified Gas & Oil Corporation, a Delaware corporation (the “Borrower”), each of the undersigned guarantors (the “Guarantors”), each Lender (as defined below) party hereto, and KeyBank National Association, as administrative agent for the Lenders (in such capacity, together with its successors and assigns, the “Administrative Agent”).
RECITALS
A. The Borrower, the Administrative Agent and the banks and other financial institutions from time to time party thereto (together with their respective successors and assigns in such capacity, each a “Lender”) have entered into that certain Amended, Restated and Consolidated Revolving Credit Agreement dated as of December 7, 2018, as amended by that certain First Amendment dated as of April 18, 2019, that certain Second Amendment dated as of June 28, 2019, that certain Third Amendment dated as of November 13, 2019, that certain Fourth Amendment dated as of January 9, 2020, that certain Fifth Amendment dated as of January 22, 2020, that certain Sixth Amendment dated as of March 24, 2020, that certain Seventh Amendment dated as of May 21, 2020, that certain Eighth Amendment dated as of June 26, 2020, that certain Ninth Amendment dated as of November 19, 2020, that certain Tenth Amendment dated as of April 6, 2021, that certain Eleventh Amendment dated as of May 11, 2021, that certain Twelfth Amendment dated as of August 17, 2021, and that certain Thirteenth Amendment dated as of December 7, 2021 (as further amended, restated, modified or supplemented from time to time, the “Credit Agreement”).
B. The Borrower has requested, and the Lenders and the Administrative Agent have agreed to amend certain provisions of the Credit Agreement on the terms and conditions set forth herein in connection with the formation and investment in ABS III Holdings, ABS III, ABS III Midstream and ABS III Upstream (each as defined below).
AGREEMENT
NOW, THEREFORE, to induce the Administrative Agent and the Lenders to enter into this Fourteenth Amendment and in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Unless otherwise defined in this Fourteenth Amendment, each capitalized term used in this Fourteenth Amendment has the meaning assigned to such term in the Credit Agreement. Unless otherwise indicated, all section references in this Fourteenth Amendment refer to sections of the Credit Agreement.
Section 2. Amendments. Subject to the Satisfaction of the Conditions Precedent in Section 5 of this Fourteenth Amendment, the following Amendments to the Credit Agreement shall be effective:
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2.1 Amendment to Section 1.02. Section 1.02 is hereby amended by amending or adding the following defined terms in their entirety:
“ABS III” means Diversified ABS Phase III LLC, a Delaware limited liability company, a wholly owned subsidiary of ABS III Holdings and an Unrestricted Subsidiary of Diversified.
“ABS III Holdings” means Diversified ABS Phase III Holdings LLC, a Pennsylvania limited liability company and an Unrestricted Subsidiary of Diversified.
“ABS III Midstream” means Diversified ABS Phase III Midstream LLC, a wholly owned subsidiary of ABS III and an Unrestricted Subsidiary of Diversified.
“ABS III Upstream” means Diversified ABS Phase III Upstream LLC, a wholly owned subsidiary of ABS III and an Unrestricted Subsidiary of Diversified.
“Agreement” means this Amended, Restated and Consolidated Revolving Credit Agreement, including the Schedules and Exhibits hereto, as amended by that certain First Amendment dated as of April 18, 2019, that certain Second Amendment dated as of June 28, 2019, that certain Third Amendment dated as of November 13, 2019, that certain Fourth Amendment dated as of January 9, 2020, that certain Fifth Amendment dated as of January 22, 2020, that certain Sixth Amendment dated as of March 24, 2020, that certain Seventh Amendment dated as of May 21, 2020, that certain Eighth Amendment dated as of June 26, 2020, that certain Ninth Amendment dated as of November 19, 2020, that certain Tenth Amendment dated as of April 6, 2021, that certain Eleventh Amendment dated as of May 11, 2021, that certain Twelfth Amendment dated as of August 17, 2021, that certain Thirteenth Amendment dated as of December 7, 2021, that certain Fourteenth Amendment dated as of February 4, 2022, and as the same may be further amended, modified, supplemented, restated, replaced or otherwise modified from time to time.
“Limited Guaranty” means a limited guaranty by the Borrower of certain obligations of ABS III under that certain Indenture dated as of January 27, 2022 among ABS III and UMB Bank, N.A. as trustee for the issuance of Notes in the principal amount of $365.0 million in form and substance reasonably acceptable to the Majority Lenders.
2.2 Amendment to Section 9.02. Section 9.02 is hereby amended by deleting “and” after Section 9.02(i), renumbering Section 9.02(j) as Section 9.02(k) and inserting the following Section 9.02(j):
“(j) the Limited Guaranty; and”
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2.3 Amendment to Section 9.05(k). Section 9.05(k) is hereby amended by deleting “and” at the end of Section 9.05(k)(iii), renumbering 9.05(k)(iv) as 9.05(k)(vi) and adding the following new 9.05(k)(iv) and (v):
“(iv) (A) ABS III Holdings, ABS III and ABS III Upstream; provided that the Borrower’s Investment in such entities at any one time does not exceed those assets allocated to ABS III Upstream pursuant to that certain Statement of Division filed with the Pennsylvania Department of State pursuant to that certain Separation Agreement dated as of February 1, 2022 (the “Separation Agreement”) by and among Diversified, the Borrower, ABS III Holdings, ABS III and ABS III Upstream (without giving effect to any appreciation in the value of such Investment after the date such Investment is made) and (B) the Limited Guaranty;
(v) ABS III Midstream; provided that the Borrower’s Investment in such entity at any one time does not exceed those assets contributed to ABS III Midstream pursuant to that certain Contribution Agreement dated as of February 3, 2022 (the “Contribution Agreement”) by and among Diversified, the Borrower, Diversified Midstream LLC, ABS III Holdings, ABS III and ABS III Midstream (without giving effect to any appreciation in the value of such Investment after the date such Investment is made); and”
2.4 Amendment to Section 9.14. Section 9.14 is hereby amended by deleting such Section in its entirety and replacing it with the following:
“Section 9.14 Transactions with Affiliates. Except for payment of Restricted Payments permitted by Section 9.04, the Borrower will not, and will not permit any other Group Member to, enter into any transaction, including any purchase, sale, lease or exchange of Property or the rendering of any service, with any Affiliate (other than between the Borrower and other Loan Parties) unless such transactions are otherwise not prohibited under this Agreement and are upon fair and reasonable terms no less favorable to it than it would obtain in a comparable arm’s length transaction with a Person not an Affiliate and with respect to any such agreements with ABS, ABS II, ABS III Midstream, ABS III Upstream, SPV I and SPV II and their Affiliates, a Responsible Officer of the Borrower provides a certificate to the Administrative Agent upon entering into and on each amendment or modification of such agreement certifying to the foregoing.”
2.5 Amendment to Section 10.01. Section 10.01 is hereby amended by deleting the “or” at the end of Section 10.01(k), renumbering Section 10.01(l) as 10.01(m) and adding the following new Section 10.01(l):
“(l) any legitimate claim, litigation or other legal proceeding shall be made by the Trustee or a Noteholder (as such terms are defined in the Limited Guaranty) against the Borrower or any other Guarantor and such claim, litigation or other legal proceeding if determined to be payable, could reasonably be expected to be in excess of $10.0 million; or”
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Section 3. Waivers.
3.1 Consideration for Transfer of Oil and Gas Properties. The cash consideration to be received by the Borrower in connection with the Disposition, in one or more separate transactions by Diversified to ABS III of the assets acquired pursuant to the Separation Agreement and the Contribution Agreement (the “Transferred Assets”) related to an asset backed securitization transaction or transactions (the “ABS Transaction”) will be less than 80% of the total consideration for the Transferred Assets. Section 9.11(d)(i) requires that at least 80% of the consideration for such transfer be cash. The Borrower has requested that the Majority Lenders waive, and the Majority Lenders signatory hereto hereby waive the requirements of Sections 9.11(d)(i) that the consideration for the transfer of the Transferred Assets to ABS III pursuant to the ABS Transaction be at least 80% cash.
3.2 Swaps. The Borrower may, at its option, novate certain Swap Agreements associated with the ABS Transaction. If it does so, it may receive less than 80% cash for such novation as required by Section 9.11(d)(i) and it may not receive Fair Market Value for such novation as required by Section 9.11(d)(iii). The Borrower has requested that the Majority Lenders waive, and the Majority Lenders signatory hereto hereby waive the requirements that the consideration for the novation of such Swap Agreements in connection with the transfer of the Transferred Assets be at least 80% cash and at Fair Market Value.
3.3 Conditions. Notwithstanding Section 5 of this Fourteenth Amendment, the foregoing waivers of the ABS Transaction shall be conditioned upon:
(a) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying as to the matters set forth in Section 8.18(d) with respect to the designation of ABS III Holdings and ABS III as Unrestricted Subsidiaries.
(b) The Administrative Agent shall have received copies of the documents to be used to complete the ABS Transaction (the “ABS Transaction Documents”) at least two (2) Business Days prior to the close of the ABS Transaction and such documents shall be in form and substance reasonably acceptable to the Administrative Agent, including, for the avoidance of doubt, the Limited Guaranty.
(c) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower (a) certifying that the ABS Transaction has been completed in accordance with the ABS Transaction Documents, and (b) stating that attached thereto are true and correct copies of the originals of such ABS Transaction Documents used to complete the ABS Transaction.
(d) The Administrative Agent shall have received the certificate required by Section 9.14 with respect to each affiliate transaction entered into with ABS III Midstream and ABS III Upstream.
Section 4. Borrowing Base. Pursuant to Section 2.08(a), the Administrative Agent has determined that upon the closing of the ABS Transaction, the Borrowing Base in effect at such time shall be $550.0 million. The Borrowing Base may be subject to further adjustment from time to time in accordance with the Credit Agreement.
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Section 5. Effectiveness. This Fourteenth Amendment shall become effective on the first date on which each of the conditions set forth in this Section 5 is satisfied (the “Fourteenth Amendment Effective Date”):
5.1 The Administrative Agent shall have received duly executed counterparts (in such number as may be reasonably requested by the Administrative Agent) of this Fourteenth Amendment from the Borrower, each Guarantor, and Lenders constituting the Majority Lenders.
5.2 At the time of and immediately after giving effect to this Fourteenth Amendment, (a) no Default or Event of Default shall have occurred and be continuing and (b) no event or events shall have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
5.3 There shall be no pending or threatened litigation against the Borrower or any Guarantor which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect, except as disclosed in writing to the Administrative Agent prior to the Fourteenth Amendment Effective Date.
5.4 The Borrower shall have paid all amounts due and payable on or prior to the Fourteenth Amendment Effective Date to the extent invoiced two (2) Business Days prior to the Fourteenth Amendment Effective Date, including all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
Section 6. Governing Law. THIS FOURTEENTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. Miscellaneous. (a) On and after the Fourteenth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in each other Loan Document to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended or otherwise modified by this Fourteenth Amendment; (b) the execution, delivery and effectiveness of this Fourteenth Amendment shall not operate as a waiver of any default of the Borrower or any right, power or remedy of the Administrative Agent or the Lenders under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents; (c) this Fourteenth Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Fourteenth Amendment by signing any such counterpart; and (d) delivery of an executed counterpart of a signature page to this Fourteenth Amendment by electronic mail shall be effective as delivery of a manually executed counterpart of this Fourteenth Amendment.
Section 8. Ratification and Affirmation; Representations and Warranties. The Borrower and each Guarantor hereby (a) acknowledges the terms of this Fourteenth Amendment; (b) ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended or modified hereby; and (c) represents and warrants to the Lenders that as of the Fourteenth Amendment Effective Date, after giving effect to the terms of this Fourteenth Amendment: (i) all of the representations and warranties contained in each Loan Document to which it is a party are true and correct in all material respects (unless already qualified by materiality, in which case such representation and warranty (to the extent so qualified) shall continue to be true and correct in all 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 be true and correct in all material respects (unless already qualified by materiality, in which case such representation and warranty (to the extent so qualified) shall continue to be true and correct in all respects) as of such specified earlier date, (ii) no Default or Event of Default has occurred and is continuing, and (iii) no event or events have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
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Section 9. Limitation of Waivers. Except as expressly provided herein, the waivers contained herein, shall not be a consent, waiver or agreement by the Administrative Agent or the Lenders of any Defaults or Events of Default, as applicable, which may exist or which may occur in the future under the Credit Agreement or any other Loan Document (collectively, “Violations”). Similarly, except as expressly provided herein, nothing contained in this Fourteenth Amendment shall directly or indirectly in any way whatsoever: (a) impair, prejudice or otherwise adversely affect the Administrative Agent’s or the Lenders’ right at any time to exercise any right, privilege or remedy in connection with the Credit Agreement or any other Loan Document, as the case may be, with respect to any Violations, (b) amend or alter any provision of the Credit Agreement, the other Loan Documents, or any other contract or instrument, or (c) constitute any course of dealing or other basis for altering any obligation of the Borrower or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents, or any other contract or instrument, as applicable. Nothing in this Fourteenth Amendment shall be construed to be a consent by the Administrative Agent or the Lenders to any Violations.
Section 10. Loan Document. This Fourteenth Amendment is a Loan Document as defined and described in the Credit Agreement and all of the terms and provisions of the Credit Agreement relating to Loan Documents shall apply hereto.
Section 11. No Oral Agreements. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, INCLUDING THIS FOURTEENTH AMENDMENT, EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN AND AMONG THE PARTIES AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN AND AMONG SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN AND AMONG THE PARTIES.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourteenth Amendment to be executed by their officers thereunto duly authorized as of the date first above written.
| BORROWER: | DIVERSIFIED GAS & OIL CORPORATION a Delaware corporation | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer | |
| GUARANTORS: | DIVERSIFIED
PRODUCTION LLC DIVERSIFIED MIDSTREAM LLC DP BLUEBONNET LLC BLUESTONE
NATURAL RESOURCES II, LLC COALFIELD PIPELINE COMPANY TAPSTONE ENERGY HOLDINGS, LLC TAPSTONE ENERGY HOLDINGS II, LLC TAPSTONE ENERGY HOLDINGS III, LLC TAPSTONE ENERGY, LLC TAPSTONE MIDSTREAM, LLC | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| KEYBANK NATIONAL ASSOCIATION, as Coordinating Lead Arranger, Sole Bookrunner, Administrative Agent and a Lender | ||
| By: | /s/ Xxxxxx X. XxXxxx | |
| Name: | Xxxxxx X. XxXxxx | |
| Title: | Senior Vice President | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| TRUIST BANK, as Co-Syndication Agent, and a Lender | ||
| By: | /s/ Xxxxxxxx X. Xxxxx | |
| Name: | Xxxxxxxx X. Xxxxx | |
| Title: | Director | |
| TRUIST SECURITIES, INC., as Joint Lead Arranger | ||
| By: | /s/ Xxxxxxxx X. Xxxxx | |
| Name: | Xxxxxxxx X. Xxxxx | |
| Title: | Director | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| CITIZENS BANK, N.A., as Joint Lead Arranger, Co- Syndication Agent and a Lender | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxx | |
| Title: | Senior Vice President | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Joint Lead Arranger, Co-Syndication Agent, and a Lender | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Authorized Signatory | |
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxxx | |
| Title: | Authorized Signatory |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| DNB BANK ASA, NEW YORK BRANCH, as a Co-Documentation Agent | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President |
| DNB MARKETS, INC., as a Joint Lead Arranger | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxx Xxxx | |
| Name: | Xxx Xxxx | |
| Title: | Managing Director |
| DNB CAPITAL LLC as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| MIZUHO BANK, LTD., as a Joint Lead Arranger, a Co-Syndication Agent and a Lender | ||
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Authorized Signatory | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| U.S. BANK NATIONAL ASSOCIATION, as a Joint Lead Arranger, a Co-Document Agent and a Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Senior Vice President | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Authorized Signatory | |
| By: | /s/ Xxxxxx Xxxxx | |
| Name: | Xxxxxx Xxxxx | |
| Title: | Authorized Signatory |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| First-Citizens Bank & Trust Company (successor by merger to CIT Bank, N.A.), as a Lender | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Director | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| FIRST HORIZON BANK, as a Lender | ||
| By: | /s/ X. Xxxxx XxXxxxxx | |
| Name: | X. Xxxxx XxXxxxxx XX | |
| Title: | Senior Vice President | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| BANK OF AMERICA, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Director | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| CITIBANK, N.A., as a Lender | ||
| By: | /s/ Heathcliff Vaz | |
| Name: | Heathcliff Vaz | |
| Title: | Vice President | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
| By: | /s/ Sumitomo Mitsui Banking Corporation | |
| Name: | Sumitomo Mitsui Banking Corporation | |
| Title: | ||
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| SYNOVUS BANK, as a Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Corporate Banker | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| ZIONS BANCORPORATION dba AMEGY BANK, as a Lender | ||
| By: | /s/ Zions Bancorporation dba Amegy Bank | |
| Name: | Zions Bancorporation dba Amegy Bank | |
| Title: | ||
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
| XXXXXXX XXXXX BANK USA, as a Lender | ||
| By: | /s/ Xxx Xxxxxx | |
| Name: | Xxx Xxxxxx | |
| Title: | Authorized Signatory | |
Signature Page
Diversified Gas & Oil Corporation - Fourteenth Amendment
