NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AMONG LEGACY RESERVES LP, as Borrower, THE GUARANTORS, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, and THE LENDERS SIGNATORY HERETO DATED AS OF MARCH 23, 2018 Sole...
Exhibit 10.1
NINTH AMENDMENT
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
LEGACY RESERVES LP,
as Borrower,
THE GUARANTORS,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
THE LENDERS SIGNATORY HERETO
DATED AS OF MARCH 23, 2018
Sole Lead Arranger and Sole Book Runner
Xxxxx Fargo Securities, LLC
Syndication Agent
Compass Bank
Co-Documentation Agents
UBS Securities LLC
and
U.S. Bank National Association
NINTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Ninth Amendment”) dated as of March 23, 2018, among LEGACY RESERVES LP, a limited partnership duly formed under the laws of the State of Delaware (the “Borrower”); each of the undersigned guarantors (the “Guarantors”, and together with the Borrower, the “Obligors”); XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”); and the Lenders signatory hereto.
Recitals
A. The Borrower, the Administrative Agent and the Lenders are parties to that certain Third Amended and Restated Credit Agreement dated as of April 1, 2014 (as amended by the First Amendment to Third Amended and Restated Credit Agreement dated as of April 17, 2014, that certain Second Amendment to Third Amended and Restated Credit Agreement dated as of May 22, 2014, that certain Third Amendment to Third Amended and Restated Credit Agreement dated as of December 29, 2014, that certain Fourth Amendment to Third Amended and Restated Credit Agreement dated as of February 23, 2015, that certain Fifth Amendment to Third Amended and Restated Credit Agreement dated as of August 5, 2015, that certain Sixth Amendment to Third Amended and Restated Credit Agreement dated as of November 13, 2015, that certain Seventh Amendment to Third Amended and Restated Credit Agreement dated as of February 19, 2016 and that certain Eighth Amendment to Third Amended and Restated Credit Agreement dated as of October 25, 2016 (as so amended prior to the date hereof, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended by this Ninth Amendment, the “Credit Agreement”), pursuant to which the Lenders have made certain credit available to and on behalf of the Borrower.
B. The Guarantors are parties to that certain Third Amended and Restated Guaranty Agreement dated as of April 1, 2014 made by each of the Guarantors (as defined therein) in favor of the Administrative Agent (the “Guaranty”).
C. The Borrower, the Guarantors, the Administrative Agent and the Lenders have agreed to amend certain provisions of the Existing Credit Agreement as more fully set forth herein.
NOW, THEREFORE, 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. Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Ninth Amendment, shall have the meaning ascribed such term in the Credit Agreement. Unless otherwise indicated, all article, section and exhibit references in this Ninth Amendment refer to articles, sections and exhibits of the Credit Agreement.
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Section 2. Amendments to Credit Agreement. Effective as of (a) in the case of the additions of Sections 9.26 and 9.27 to the Existing Credit Agreement specified in Section 2.21 below, the date hereof and (b) in any other case, as of the Ninth Amendment Effective Date:
2.1 Amendments to Section 1.02.
(a) The following definitions are hereby amended and restated in their entirety to read as follows:
“Agreement” means this Third Amended and Restated Credit Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment and the Ninth Amendment, as the same may from time to time be amended, modified, supplemented or restated.
“Change in Control” means (a) the Parent ceases to (i) be the Beneficial Owner of 100% of the Equity Interests of Legacy GP, (ii) Control Legacy GP or (iii) be the Beneficial Owner of 100% of the limited partner Equity Interests in the Borrower; (b) Legacy GP ceases to be the sole general partner of the Borrower; (c) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or greater than 50% of the properties or assets (determined by reference to fair market value of such properties and assets at the time of such sale, lease, transfer, conveyance or other disposition) of the Borrower and its Subsidiaries taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act); (d) the adoption of a plan relating to the liquidation or dissolution of the Parent or the Borrower; (e) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Equity Interests of the Parent, measured by voting power rather than number of shares, units or the like; or (f) the first day on which a majority of the members of the Board of Directors of the Parent are not Continuing Directors.
“Consolidated Net Income” means with respect to the Parent and the Consolidated Subsidiaries, for any period, the aggregate of the net income (or loss) of the Parent and the Consolidated Subsidiaries after allowances for taxes for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein) the following: (a) the net income of any Person in which the Parent or a Consolidated Subsidiary has an interest (which interest does not cause the net income of such other Person to be consolidated with the net income of the Parent and the Consolidated Subsidiaries in accordance with GAAP), except to the extent of the amount of dividends or distributions actually paid in cash during such period by such other Person to the Parent or to a Consolidated Subsidiary (including any such payments made by an E&P
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Subsidiary), as the case may be; (b) the net income (but not loss) during such period of any Consolidated Subsidiary to the extent that the declaration or payment of dividends or similar distributions or transfers or loans by that Consolidated Subsidiary is not at the time permitted by operation of the terms of its charter or any agreement, instrument or Governmental Requirement applicable to such Consolidated Subsidiary or is otherwise restricted or prohibited, in each case determined in accordance with GAAP; (c) the net income (or loss) of any Person acquired in a pooling-of-interests transaction for any period prior to the date of such transaction; and (d) any extraordinary gains or losses during such period; and provided further that if the Parent or any Consolidated Subsidiary shall acquire or dispose of any Property during such period, then Consolidated Net Income shall be calculated after giving pro forma effect to such acquisition or disposition, as if such acquisition or disposition had occurred on the first day of such period.
“Consolidated Subsidiaries” means, (a) with respect to the Borrower, each Subsidiary of the Borrower (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of the Borrower in accordance with GAAP and (b) with respect to the Parent, each Subsidiary of the Parent (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of the Parent in accordance with GAAP.
“Continuing Directors” means, as of any date of determination, any member of the board of directors of the Parent who (a) was a member of such board of directors on the Ninth Amendment Effective Date or (b) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election.
“EBITDA” means, for any period, Consolidated Net Income for such period plus, to the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for income and income based taxes paid or accrued, (iii) depreciation, depletion, amortization, accretion and impairment, including without limitation, impairment of goodwill, (iv) reasonable transaction expenses and fees in connection with financing, acquisition and divestiture activities permitted under this Agreement, in an aggregate amount not to exceed $5,000,000 in any four fiscal quarter period, (v) minimum payments earned in excess of overriding royalty interests, (vi) any non-cash items associated with (a) xxxx to market accounting related to derivatives or investments, (b) stock based compensation arising from the grant of or issuance or replacement of stock, stock options or other equity-based awards or any amendment, modification, substitution or change of any such stock, stock options or other equity-based awards, in each case in connection with employee plans or other compensation arrangements, and/or (c) any losses (or to the extent increasing the Consolidated Net Income, subtracting any gains) attributable to
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writeups or writedowns of assets, including ceiling test writedowns, and asset sales and (vii) (i) reasonable and customary one-time investment banking, legal, accounting and other reasonable and customary advisory transaction expenses and fees in connection with the Reorganization Transactions and (ii) cash consideration paid to the equityholders of Legacy GP in connection with the Reorganization Transactions; provided that the aggregate amount under this clause (vii) shall not exceed $4,000,000; less, all non-cash items increasing Consolidated Net Income, all calculated for the Borrower and its Subsidiaries on a consolidated basis. For the purposes of calculating EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”), (x) if during such Reference Period the Borrower shall have designated any Subsidiary as an E&P Subsidiary or designated an E&P Subsidiary to no longer be an E&P Subsidiary, EBITDA for such Reference Period shall be calculated on a pro forma basis as if such designation had occurred on the first day of such Reference Period, and (y) if the Borrower or any Consolidated Subsidiary shall acquire or dispose of any Property during such period, then EBITDA shall be calculated after giving pro forma effect to such acquisition or disposition, as if such acquisition or disposition had occurred on the first day of such period.
“Guarantors” means (a) Legacy Reserves Operating LP, (b) Legacy Reserves Operating GP LLC, (c) Legacy Reserves Services, Inc., (d) Legacy Reserves Energy Services LLC, (e) Dew Gathering LLC, (f) Pinnacle Gas Treating LLC, (g) the Parent Guarantors and (h) each Material Domestic Subsidiary formed or acquired during the term of this Agreement or other Domestic Subsidiary that is a party to the Guaranty Agreement and the Security Agreement as a “Guarantor” and a “Grantor” (as such terms are defined in the Guaranty Agreement and the Security Agreement, respectively) and guarantees the Indebtedness pursuant to Section 8.14(b). For the avoidance of doubt, it is understood and agreed that an E&P Subsidiary shall not be a Guarantor.
“Pledge Agreement” means the Third Amended and Restated Pledge Agreement of even date herewith executed by the Guarantors in favor of the Administrative Agent (as amended, supplemented or otherwise modified from time to time) with respect to the “Pledged Securities” as defined therein.
“Subsidiary” means, with respect to any Person (the “parent”), (a) any other Person (i) of which at least a majority of the outstanding Equity Interests is at the time directly or indirectly owned by the parent or one or more of its Subsidiaries or by the parent and one or more of its Subsidiaries or (ii) of which at least a majority of the outstanding Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors, manager or other governing body of such Person (irrespective of whether or not at the time Equity Interests of any other class or classes of such Person shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the parent or one or more of its Subsidiaries or by the parent and one or more of its Subsidiaries and (b) any partnership of which the parent or any of its Subsidiaries is a general partner.
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Unless otherwise indicated herein, each reference to the term “Subsidiary” shall mean a Subsidiary of the Borrower. Notwithstanding the foregoing, until such time as the Borrower notifies the Administrative Agent that the Person constituting an E&P Subsidiary is no longer designated an “E&P Subsidiary” hereunder, it is understood and agreed that neither such E&P Subsidiary nor any subsidiary of such E&P Subsidiary shall be a Subsidiary of the Borrower for purposes of this Agreement and the other Loan Documents other than, to the extent such E&P Subsidiary would otherwise constitute a ‘Subsidiary’ within the meaning of such definition, such E&P Subsidiary and its subsidiaries shall each be a Subsidiary for purposes of Section 7.06, Section 7.09, Section 7.10, Section 7.23, Section 8.10, Section 8.15, Section 9.09, Section 9.13 and Section 12.03(b).
(b) The following definitions are hereby added where alphabetically appropriate to read as follows:
“GP Purchase” means the acquisition by the Parent from the XX Xxxxxxx of 100% of the limited liability company Equity Interests in Legacy GP and the admission of the Parent as the sole member of Legacy GP, in each case pursuant to the terms of the GP Purchase Agreement.
“GP Purchase Agreement” means that certain GP Purchase Agreement, dated as of March 23, 2018, by and among Parent and the XX Xxxxxxx, in form and substance reasonably satisfactory to the Administrative Agent (it being agreed and understood that the GP Purchase Agreement delivered to the Administrative Agent on or prior to the date of the Ninth Amendment is reasonably satisfactory to the Administrative Agent), as it may be amended, supplemented, restated or otherwise modified from time to time (without giving effect to any amendments, supplements, restatements or other modifications that are materially adverse to the Lenders without the prior written consent of the Administrative Agent, it being acknowledged that any increase in any amounts beyond $3,500,000 payable to the XX Xxxxxxx thereunder shall be deemed to be materially adverse).
“XX Xxxxxxx” means, collectively, Brothers Production Properties, Ltd., Brothers Production Company, Inc., Brothers Operating Company, Inc., J&W McGraw Properties, Ltd., Moriah Properties, Ltd., DAB Resources, Ltd. and H2K Holdings, Ltd.
“Legacy GP” means Legacy Reserves GP, LLC, a Delaware limited liability company.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of March 23, 2018, by and among the Borrower, Legacy GP, Parent and Legacy Reserves Merger Sub LLC, a Delaware limited liability company, in form and substance reasonably satisfactory to the Administrative Agent (it being agreed and understood that the Merger Agreement delivered to the Administrative Agent on or prior to the date of the Ninth Amendment is reasonably satisfactory to the Administrative Agent), as it may be amended, supplemented, restated or
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otherwise modified from time to time (without giving effect to any amendments, supplements, restatements or other modifications that are materially adverse to the Lenders without the prior written consent of the Administrative Agent, it being acknowledged that any increase in any amounts beyond $50,000 payable thereunder shall be deemed to be materially adverse).
“Ninth Amendment” means that certain Ninth Amendment to Third Amended and Restated Credit Agreement, dated as of March 23, 2018, among the Borrower, the Guarantors, the Administrative Agent and the Lenders party thereto.
“Ninth Amendment Effective Date” has the meaning ascribed to such term in the Ninth Amendment.
“Parent” means Legacy Reserves Inc., a Delaware corporation.
“Parent Guarantors” means, collectively, the Parent and Legacy GP.
“Reorganization Transactions” means the corporate reorganization of the Borrower and its Subsidiaries, as described in the Merger Agreement and the GP Purchase Agreement, which transactions include, without limitation: (A) the formation by Legacy GP of the Parent and the formation by the Parent of Legacy Reserves Merger Sub, LLC a Delaware limited liability company (“Merger Sub”), (B) the GP Purchase on the terms set forth in the GP Purchase Agreement, (C) the merger of Merger Sub with and into the Borrower, with the Borrower surviving such merger and the Borrower’s limited partner interests being 100% owned by the Parent as a result thereof and (D) the exchange of the Borrower’s common and preferred Equity Interests for common Equity Interests in the Parent on the terms set forth in the Merger Agreement.
“Subsidiary Guarantor” means any Subsidiary of the Borrower that is a Guarantor.
(c) Clause (e) of the definition of “Excepted Liens” is hereby amended by replacing the reference therein to “the Borrower” with “the Parent Guarantors, the Borrower”.
(d) Clause (i) of the definition of “Excluded Accounts” is hereby amended by replacing the reference therein to “the Borrower” with “the Parent Guarantors, the Borrower”.
(e) The definition of “Indebtedness” is hereby amended by replacing the phrase “relating to the Borrower or any of its Subsidiaries” with the phrase “relating to the Borrower or any of its Subsidiaries or any Guarantor”.
(f) The definition of “Second Lien Loan Documents” is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries” with the phrase “the Borrower or any of its Subsidiaries or any Guarantor”.
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(g) Each of the definitions “Consolidated Cash Balance”, “First Lien Debt”, “Interest Expense”, “Secured Debt” and “Total Debt” is hereby amended by replacing each instance of the word “Borrower” with the word “Parent”.
(h) Each of the definitions “Available Cash” and “Legacy Reserves GP, LLC” is hereby deleted in its entirety.
2.2 Amendment to Section 2.08(j). Section 2.08(j) is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries” with the phrase “the Borrower or any of its Subsidiaries or any Guarantor”.
2.3 Amendment to Section 3.04(d). Section 3.04(d) is hereby amended by (a) replacing each instance of the phrase “the Borrower or any Subsidiary” with the phrase “the Borrower or any Subsidiary or any Guarantor” and (b) replacing the phrase “the Borrower or such Subsidiary” with the phrase “the Borrower or such Subsidiary or such Guarantor”.
2.4 Amendment to Section 7.14. Section 7.14 is hereby amended by adding a new sentence at the end thereof to read as follows: “The Parent does not directly own any Equity Interests in any Person other than Equity Interests in the Borrower and Legacy GP, and Legacy GP does not directly own any Equity Interests in any Person other than Equity Interests in the Borrower.”
2.5 Amendment to Section 7.21. Clause (b) of Section 7.21 is hereby amended and restated in its entirety to read as follows: “(b) to make Restricted Payments permitted by Section 9.04,”.
2.6 Amendment to Article VII. Article VII is hereby amended by (a) replacing the phrase “The Borrower represents and warrants to the Lenders that:” immediately before Section 7.01 with the phrase “The Borrower (and each Parent Guarantor, in the case of Section 7.27) represents and warrants to the Lenders that:” and (b) adding a new Section 7.27 thereto to read as follows:
Section 7.27 Representations and Warranties of the Parent Guarantors. Each of the Parent Guarantors hereby makes each of the representations and warranties to the Lenders set forth in Section 7.01, Section 7.02, Section 7.03, Section 7.04, Section 7.05, Section 7.06, Section 7.07, Section 7.08, Section 7.09, Section 7.10, Section 7.11, Section 7.12, Section 7.13, Section 7.14, Section 7.21, Section 7.22 and Section 7.23, as if each reference to “the Borrower” therein were a reference to “such Parent Guarantor”, and provided that each reference in each such representation and warranty to the Borrower’s knowledge shall, for the purposes of this Section 7.27, be deemed to be a reference to such Parent Guarantor’s knowledge.
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2.7 Amendment to Section 8.01(a)-(c). Each of Sections 8.01(a), (b) and (c) is hereby amended and restated in its entirety to read as follows:
(a) Annual Financial Statements. As soon as available, but in any event not later than 90 days after the end of each fiscal year, the Parent’s audited consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year (which, for the avoidance of doubt, may be against the financial statements of the Borrower for any period prior to the closing of the Reorganization Transactions), all reported on by independent public accountants of recognized national standing and reasonably acceptable to the Administrative Agent (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied.
(b) Quarterly Financial Statements. As soon as available, but in any event not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, its consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows as of the end of and for such quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year (which, for the avoidance of doubt, may be against the financial statements of the Borrower for any period prior to the closing of the Reorganization Transactions), all certified by a Financial Officer of the Parent as presenting fairly in all material respects the financial position and results of operations of the Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes.
(c) Certificate of Financial Officer – Compliance. Concurrently with any delivery of financial statements under Section 8.01(a) or Section 8.01(b), a certificate of a Financial Officer of the Parent and the Borrower in substantially the form of Exhibit B hereto (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 9.01, (iii) stating whether any change in GAAP or in the application thereof has occurred since the Effective Date and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) specifying each Subsidiary and E&P Subsidiary.
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2.8 Amendment to Section 8.01(h). Section 8.01(h) is hereby amended and restated in its entirety to read as follows:
(h) Other Accounting Reports. Promptly upon receipt thereof, a copy of each other report or letter submitted to the Parent, the Borrower or any of its Subsidiaries by independent accountants in connection with any annual, interim or special audit made by them of the books of the Parent, the Borrower or any such Subsidiary, and a copy of any response by the Parent, the Borrower or any such Subsidiary to such letter or report.
2.9 Amendment to Section 8.01(i). Section 8.01(i) is hereby amended by replacing the phrase “the Borrower or any Subsidiary” with “the Parent, the Borrower or any Subsidiary”.
2.10 Amendment to Section 8.01(p). Section 8.01(p) is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries” with “any Parent Guarantor, the Borrower or any of its Subsidiaries”.
2.11 Amendment to Section 8.01(q). Section 8.01(q) is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries” with “any Parent Guarantor, the Borrower or any of its Subsidiaries”.
2.12 Amendment to Section 8.02(b). Section 8.02(b) is hereby amended by replacing the phrase “the Borrower or any Subsidiary thereof” therein with the phrase “any Parent Guarantor, the Borrower or any Subsidiary thereof”.
2.13 Amendment to Article VIII. Article VIII is hereby amended by (a) replacing the phrase “the Borrower covenants and agrees with the Lenders that:” immediately before Section 8.01 with the phrase “The Borrower (and each Parent Guarantor, in the case of Section 8.01, Section 8.02 and Section 8.21) covenants and agrees with the Lenders that:” and (b) adding a new Section 8.21 to read as follows:
Section 8.21 Affirmative Covenants of the Parent Guarantors. Each of the Parent Guarantors hereby covenants and agrees to comply with each of the covenants set forth in Section 8.03, Section 8.04, Section 8.05, Section 8.07, Section 8.08, Section 8.09, Section 8.10, Section 8.11, Section 8.15, Section 8.19 and Section 8.20, as if each reference to “the Borrower” therein were a reference to “such Parent Guarantor”; provided, however, that, so long as the aggregate balance held in all Deposit Accounts, Securities Accounts and Commodity Accounts of the Parent Guarantors does not at any time exceed $500,000, the Parent Guarantors shall be under no obligation with respect to Section 8.20 prior to the 30th day following the Ninth Amendment Effective Date (or such later date as the Administrative Agent may agree to in its sole discretion).
2.14 Amendment to Section 9.01. Section 9.01 is hereby amended by replacing each instance of the word “Borrower” with the word “Parent”.
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2.15 Amendment to Section 9.04(a). Section 9.04(a) is hereby amended and restated in its entirety to read as follows:
(a) Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.
2.16 Amendment to Section 9.04(b)(i). Section 9.04(b)(i) is hereby amended by (a) replacing the word “and” at the end of clause (A) with a comma, (b) adding the word “or” at the end of clause (B) and (c) adding the following as a new clause (C): “(C) with the Net Cash Proceeds of any sale of Equity Interests (other than Disqualified Capital Stock) of the Parent or in exchange solely for Equity Interests (other than Disqualified Capital Stock) of the Parent”.
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2.17 Amendments to Section 9.05.
(a) Section 9.05(g) is hereby amended and restated in its entirety to read as follows:
(g) Investments (i) made by the Borrower in or to the Subsidiary Guarantors, (ii) made by any Subsidiary in or to the Borrower or any Subsidiary Guarantor, and (iii) made by the Borrower or any Subsidiary Guarantor in Subsidiaries that are not Guarantors, provided that the aggregate of all Investments made by the Borrower and the Subsidiary Guarantors in or to all Subsidiaries that are not Guarantors shall not exceed $20,000,000 at any time, and only to the extent an Event of Default or Borrowing Base Deficiency does not exist and would not result from making such Investments.
(b) Section 9.05(m) is hereby added to Section 9.05 to read as follows:
(m) loans and advances made by the Borrower to the Parent to the extent any such loan or advance (i) is made in lieu of a Restricted Payment permitted pursuant to Section 9.04 or otherwise under this Agreement and (ii) if made as a Restricted Payment, would be permitted pursuant to Section 9.04 or otherwise under this Agreement.
2.18 Amendment to Section 9.11. Section 9.11 is hereby amended by deleting the last paragraph thereof in its entirety.
2.19 Amendment to Section 9.14. Section 9.14 is hereby amended and restated in its entirety to read as follows:
Section 9.14 Transactions with Affiliates. The Borrower will not, and will not permit any Subsidiary to, enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property or the rendering of any service, with any Affiliate (other than the Guarantors and Wholly-Owned Subsidiaries of the Borrower) (each, an “Affiliate Transaction”) unless (a) such transactions are otherwise permitted 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 (b) the Borrower delivers to the Administrative Agent and Lenders: (i) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million but less than or equal to $50.0 million, an officers’ certificate of a Responsible Officer certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 9.14; or (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an officers’ certificate of a Responsible Officer certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 9.14 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by the board of directors of the Parent (so long as the members of the board of directors are disinterested) or a majority of the disinterested members of the board of directors of the Parent, in each case pursuant to a resolution set forth in such officers’ certificate.
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2.20 Amendment to Section 9.21(a). The final proviso of Section 9.21(a) is hereby amended and restated in its entirety to read as follows: “provided, further the Borrower and its Subsidiaries shall be permitted to make an optional or voluntary Redemption of the Second Lien Loans with (1) the proceeds of Permitted Refinancing Debt or (2) the Net Cash Proceeds of any sale of Equity Interests (other than Disqualified Capital Stock) of the Parent or in exchange solely for Equity Interests (other than Disqualified Capital Stock) of the Parent”.
2.21 Amendments to Article IX. Article IX is hereby amended by (a) replacing the phrase “the Borrower covenants and agrees with the Lenders that:” immediately before Section 9.01 with the phrase “The Borrower (and each Parent Guarantor, in the case of Section 9.01, Section 9.04(a), Section 9.24, Section 9.25, Section 9.26 and Section 9.27) covenants and agrees with the Lenders that:” and (b) adding a new Section 9.24, Section 9.25, Section 9.26 and Section 9.27 thereto to read as follows:
Section 9.24 Passive Holding Company Status of Parent Guarantors. Neither of the Parent Guarantors shall engage in any operating or business activities or other transactions and shall not directly hold Equity Interests of any Subsidiary except the Borrower or Legacy GP; provided that the following shall be permitted in any event: (a) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (b) the performance of its obligations with respect to the Loan Documents, the Second Lien Loan Documents, the Senior Notes and any Permitted Refinancing Debt of the foregoing, (c) any public offering of the Parent’s common stock or any other issuance or sale of the Parent’s Equity Interests and, in each case, the redemption thereof, (d) payment of taxes and dividends to its Equity Interest holders and making contributions to the capital of the Borrower and its Subsidiaries, (e) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Parent and its Subsidiaries or the making and filing of any reports required by any Governmental Authority, (f) holding any cash or cash equivalents incidental to any activities permitted under this Section 9.24, (g) providing indemnification to officers, managers and directors, (h) managing, through its board of directors, directors, officers and managers, the business of the Borrower and its Subsidiaries and (i) any other activities incidental to the foregoing. Notwithstanding the foregoing, no Parent Guarantor shall (i) incur, create, assume or suffer to exist any Debt or other material liabilities or material obligations (including any obligations (whether contingent or otherwise) under Swap Agreements or guarantees of any obligations under Swap Agreements), except (A) nonconsensual obligations (other than Debt) imposed by operation of law, (B) pursuant to any Loan Documents, any Second Lien Loan Documents, any Senior Notes or any Permitted
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Refinancing Debt of the foregoing to which it is a party or (C) pursuant to Section 9.05(h); (ii) incur, assume or permit to exist any Lien on any of its Properties (now owned or hereafter acquired), except (A) pursuant to any Loan Documents or any Second Lien Loan Documents or any Permitted Refinancing Debt of the foregoing to which it is a party and (B) for Excepted Liens; (iii) make or permit to remain outstanding any Investment in any Person other than (A) Investments of the type described in Section 9.05(c) through (f), (B) loans and advances to the Borrower and the Subsidiary Guarantors and (C) capital contributions to the Borrower; (iv) Redeem any Senior Notes, Second Lien Loans or any Permitted Refinancing Debt in respect of the foregoing, or any Debt of any other Person; (v) merge into or with or consolidate with any other Person, or sell, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its Property to any other Person; or (vi) sell, assign, convey or otherwise transfer any Property except for (A) Restricted Payments permitted by Section 9.04(a) and (B) transfers of any Property to the Borrower or any Subsidiary Guarantor.
Section 9.25 Negative Covenants of the Parent Guarantors. Each of the Parent Guarantors hereby covenants and agrees to comply with each of the covenants set forth in Section 9.04(b)(ii), Section 9.04(c), Section 9.09, Section 9.14, Section 9.16, Section 9.21(b), and Section 9.22, as if each reference to “the Borrower” were a reference to “such Parent Guarantor”; provided, however, that, so long as the aggregate balance held in all Deposit Accounts, Securities Accounts and Commodity Accounts of the Parent Guarantors does not at any time exceed $500,000, the Parent Guarantors shall be under no obligation with respect to Section 9.22 prior to the 30th day following the Ninth Amendment Effective Date (or such later date as the Administrative Agent may agree to in its sole discretion).
Section 9.26 Certain Settlements. Each of the Borrower and the Parent Guarantors will not, and will not permit their Subsidiaries or the Parent to, at any time, without the prior written approval of the Administrative Agent, make any payment in any form (including cash, securities or other Property, but excluding any payments made with the proceeds of insurance) in respect of any settlement of any action, suit, proceeding, investigation or arbitration relating to the Reorganization Transactions in excess of $10,000,000.
Section 9.27 LTIP. Each of the Borrower and the Parent Guarantors will not, and will not permit their Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any payment in any form (including cash, securities or other Property) pursuant to the Amended and Restated Long-Term Incentive Plan of the Borrower, dated August 17, 2007, as amended by the First Amendment, dated June 12, 2015, as it may be further amended, restated, amended and restated or otherwise modified from time to time or any related employment or other
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agreement (any such payment, an “LTIP Payment”) on account of or in connection with the Reorganization Transactions and any other LTIP Payments on or after the date of the Ninth Amendment in respect of grant years 2018 and prior, other than (i) cash LTIP Payments up to $30,000,000 in the aggregate and (ii) any such LTIP Payment taking the form of common Equity Interests in the Parent.
2.22 Amendment to Section 10.01. Section 10.01 is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries”, the phrase “the Borrower, any of its Subsidiaries” and the phrase “the Borrower and its Subsidiaries” with the phrase “the Borrower or any of its Subsidiaries or any Guarantor”.
2.23 Amendment to Section 12.03(b)(ii). Section 12.03(b)(ii) is hereby amended by replacing the phrase “THE BORROWER OR ANY OF ITS SUBSIDIARIES” with “THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY GUARANTOR”.
2.24 Amendment to Section 12.08. Section 12.08 is hereby amended by replacing the phrase “the Borrower or any of its Subsidiaries” with the phrase “the Borrower or any of its Subsidiaries or any Guarantor”.
2.25 Amendment to Section 12.19. Section 12.19 is hereby amended and restated in its entirety to read as follows:
Section 12.19 Joinder of Parent Guarantors. By executing and delivering the Ninth Amendment, effective as of the Ninth Amendment Effective Date, each of the Parent and Legacy GP hereby becomes a party to this Agreement with the same force and effect as if originally named herein and hereby agrees to be bound by the terms of this Agreement. In furtherance of the foregoing, on the Ninth Amendment Effective Date, each of the Parent and Legacy GP shall execute and deliver to the Administrative Agent a joinder with respect to its obligations under this Agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent. Each of the Parent and Legacy GP hereby represents and warrants that each of the representations and warranties applicable to it in this Agreement are true and correct, 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 as of such specified earlier date.
Section 3. Consent to Reorganization Transactions.
3.1 So long as the Ninth Amendment Effective Date has occurred by December 31, 2018 (as may be extended with the consent of the Administrative Agent), the Lenders hereby (a) agree that (i) none of the Reorganization Transactions shall constitute (A) a merger or consolidation in violation of Section 9.11 or (B) a transaction with an Affiliate in violation of Section 9.14 and (ii) the Change in Control that results on account of the Reorganization Transactions is hereby waived in its entirety and is deemed not to have occurred and (b) consent
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to the Borrower’s payment of cash in lieu of fractional shares held by its limited partner Equity Interest holders pursuant to the terms of the Merger Agreement in an amount up to $50,000 (or such greater amount as the Administrative Agent may agree to in its sole discretion) and the Borrower’s payment to Parent of the cash consideration to be paid by Parent to the equityholders of Legacy GP pursuant to the GP Purchase Agreement in an amount up to $3,500,000 (or such greater amount as the Administrative Agent may agree to in its sole discretion).
3.2 Except as expressly waived herein, all covenants, obligations and agreements of the Borrower and each Guarantor contained in the Credit Agreement (as amended hereby) and the other Loan Documents shall remain in full force and effect in accordance with their terms. Without limitation of the foregoing, the foregoing waiver is hereby granted to the extent and only to the extent specifically stated herein and for no other purpose and shall not be deemed to (a) be a consent or agreement to, or waiver or modification of, or amendment to, any other term or condition of the Credit Agreement (as amended hereby), any other Loan Document or any of the documents referred to therein, (b) except as expressly set forth herein, prejudice any right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement (as amended hereby), any other Loan Document or any of the documents referred to therein, 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 (as amended hereby), the other Loan Documents, or any other contract or instrument. Granting the waiver set forth herein does not and should not be construed to be an assurance or promise that consents or waivers will be granted in the future, whether for the matters herein stated or on other unrelated matters.
Section 4. Conditions Precedent. This Ninth Amendment shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement) (the “Ninth Amendment Effective Date”):
4.1 The Administrative Agent shall have received from the Majority Lenders, the Borrower and the Guarantors, counterparts (in such number as may be requested by the Administrative Agent) of this Ninth Amendment signed on behalf of such Person.
4.2 The Administrative Agent shall have received from the Borrower and each Guarantor (including the Parent Guarantors) counterparts (in such number as may be requested by the Administrative Agent), signed on behalf of such Person, of amendments, joinders and/or assumption agreements with respect to each of this Agreement, the Guaranty Agreement, the Pledge Agreement and the Security Agreement, in each case with respect to the joinder of the Parent Guarantors, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.
4.3 The Administrative Agent shall be reasonably satisfied that the Security Instruments create first priority, perfected Liens on all of the Property of the Parent Guarantors, and the Administrative Agent shall have received certificates, if any, together with undated, blank stock powers for such certificates, representing all of the issued and outstanding certificated Equity Interests in each subsidiary pledged pursuant to the Pledge Agreement.
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4.4 The Administrative Agent shall have received a certificate (which may be the same certificate delivered pursuant to Section 4.8 and 4.10) of each Parent Guarantor setting forth (i) resolutions of the board of directors or other managing body with respect to the authorization of each Parent Guarantor to execute and deliver the Loan Documents to which it is a party and to enter into the transactions contemplated in those documents, (ii) the individuals (A) who are authorized to sign the Loan Documents to which such Parent Guarantor is a party and (B) who will, until replaced by another individual duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the other Loan Documents to which it is a party, (iii) specimen signatures of such authorized individuals, and (iv) the articles or certificate of incorporation or formation and bylaws, operating agreement or partnership agreement, as applicable, of each Parent Guarantor, in each case, certified as being true and complete.
4.5 The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of each Parent Guarantor, if any.
4.6 The Administrative Agent shall have received an opinion of Xxxxxxxx & Xxxxx, LLP, special counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, as to such matters as the Administrative Agent may reasonably request.
4.7 The Administrative Agent shall have received an executed copy of an amendment to the Second Lien Intercreditor Agreement, by and among the Administrative Agent, the Second Lien Administrative Agent, the Borrower and the Guarantors (including the Parent Guarantors), in form and substance reasonably satisfactory to the Administrative Agent. Each of the Lenders party hereto hereby instructs and authorizes the Administrative Agent to enter into such amendment on its behalf.
4.8 The Administrative Agent shall have received a certificate (which may be the same certificate delivered pursuant to Section 4.4 and 4.10) of a Responsible Officer of the Borrower certifying (a) that attached thereto is a true, correct and complete copy of the Fourth Amendment to the Second Lien Credit Agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, and shall in any event amend the Second Lien Credit Agreement in the same manner as the Credit Agreement is to be amended by this Ninth Amendment (the “Second Lien Amendment”) and (b) as to the aggregate amount of all consent, amendment and other fees payable to the holders of the Second Lien Loans in connection with the Second Lien Amendment and/or the Reorganization Transactions (the “Second Lien Amendment Fee”). The “Fourth Amendment Effective Date” under and as defined in the Second Lien Credit Agreement shall have occurred (or shall occur substantially concurrently with the Ninth Amendment Effective Date).
4.9 The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable pursuant to the Credit Agreement on or prior to the Ninth Amendment Effective Date, including (a) fees and expenses invoiced by Xxxx Xxxxxxxx LLP prior to the Ninth Amendment Effective Date and (b) to the extent any Second Lien Amendment Fee or any Senior Notes Amendment Fee (as defined below) is paid by the Obligors or any Affiliate thereof, an amendment fee payable to the Administrative Agent, for the account of each Lender that has
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executed this Ninth Amendment (each such Lender, a “Consenting Lender”), in an amount equal to the greater of (i) the product of such Consenting Lender’s Applicable Percentage of the Commitments on the Ninth Amendment Effective Date multiplied by the Second Lien Amendment Fee and (ii) the product of such Consenting Lender’s Applicable Percentage of the Commitments on the Ninth Amendment Effective Date multiplied by the Senior Notes Amendment Fee.
4.10 The Administrative Agent shall have received a certificate (which may be the same certificate delivered pursuant to Section 4.4 and 4.8) of a Responsible Officer certifying (a) that attached thereto is a true and complete copy of the amendment with respect to the Borrower’s Senior Indentures with respect to the Reorganization Transactions (the “Senior Notes Amendment”), (b) as to the aggregate amount of all consent, amendment and other fees payable to the holders of the Senior Notes in connection with the Senior Notes Amendment and/or the Reorganization Transactions (the “Senior Notes Amendment Fee”), (c) that the Merger Agreement and the transactions described therein have been approved by at least a majority of the votes cast of the Borrower’s limited partner unitholders entitled to vote on the matter; (d) that the consummation of the Reorganization Transactions will not violate or result in a default under any indenture, agreement, preferred stock designation or other instrument binding upon the Borrower or any of its Subsidiaries or their Properties, or give rise to a right thereunder to require any payment to be made by the Borrower or such Subsidiary and will not result in the creation or imposition of any Lien on any Property of the Borrower or any of its Subsidiaries; (e) that the Reorganization Transactions have been consummated (or will be consummated substantially simultaneously with the Ninth Amendment Effective Date) pursuant to the terms and conditions set forth in the Merger Agreement and GP Purchase Agreement and (f) neither the Merger Agreement nor the GP Purchase Agreement nor any provision thereof shall have been modified, amended, restated or waived by the Borrower or any of its Affiliates, and neither the Borrower nor any of its Affiliates shall have granted any consent thereunder, in each case in a manner that is materially adverse to the Lenders, without the prior written consent of the Administrative Agent (it being acknowledged that any increase in any amounts payable beyond, in the case of the GP Purchase Agreement, $3,500,000 and, in the case of the Merger Agreement, $50,000, thereunder shall be deemed to be materially adverse).
4.11 No Default shall have occurred and be continuing as of the Ninth Amendment Effective Date.
4.12 The Administrative Agent shall have received such other documents as the Administrative Agent or its counsel may reasonably require.
The Administrative Agent is hereby authorized and directed to declare this Ninth Amendment to be effective and to declare the occurrence of the Ninth Amendment Effective Date when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 4 or the waiver of such conditions as permitted in Section 12.02 of the Credit Agreement. Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.
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Section 5. Miscellaneous.
5.1 Confirmation. The provisions of the Credit Agreement, as amended by this Ninth Amendment, shall remain in full force and effect following the effectiveness of this Ninth Amendment.
5.2 Ratification and Affirmation; Representations and Warranties. Each Obligor hereby (a) acknowledges the terms of this Ninth Amendment; (b) ratifies and affirms its obligations under, and acknowledges 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 as expressly amended hereby; (c) represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms of this Ninth Amendment: (i) all of the representations and warranties contained in each Loan Document to which it is a party are true and correct, 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 as of such specified earlier date, (ii) no Default or Event of Default has occurred and is continuing, (iii) no event or events have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect and (iv) the Parent Guarantors, the Borrower and each of the other Guarantors reasonably expect in good faith that no additional Taxes are payable by the Parent Guarantors, the Borrower and their respective Subsidiaries in cash as a result of the Reorganization Transactions; and (d) agrees that from and after the Ninth Amendment Effective Date each reference to the Credit Agreement in the other Loan Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Ninth Amendment.
5.3 Counterparts. This Ninth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Ninth Amendment by telecopy, facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart hereof.
5.4 No Oral Agreement. This Ninth Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements between the parties.
5.5 GOVERNING LAW. THIS NINTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
5.6 Payment of Expenses. In accordance with Section 12.03 of the Credit Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and reasonable expenses incurred in connection with this Ninth Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent.
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5.7 Severability. Any provision of this Ninth Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
5.8 Successors and Assigns. This Ninth Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
5.9 Loan Document. This Ninth 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.
5.10 RELEASE. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE BORROWER AND EACH OTHER OBLIGOR HEREBY, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, FULLY AND WITHOUT RESERVE, RELEASES AND FOREVER DISCHARGES EACH LENDER, EACH AGENT, THE ARRANGER, THE ISSUING BANK, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, TRUSTEES, ATTORNEYS, AGENTS, ADVISORS (INCLUDING ATTORNEYS, ACCOUNTANTS AND EXPERTS) AND AFFILIATES (COLLECTIVELY THE “RELEASED PARTIES” AND INDIVIDUALLY A “RELEASED PARTY”) FROM ANY AND ALL ACTIONS, CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, LIABILITIES, COSTS, DAMAGES, EXPENSES OR OTHER OBLIGATIONS OF ANY KIND AND NATURE WHATSOEVER, KNOWN OR UNKNOWN, DIRECT AND/OR INDIRECT, AT LAW OR IN EQUITY, WHETHER NOW EXISTING OR HEREAFTER ASSERTED (INCLUDING, WITHOUT LIMITATION, ANY OFFSETS, REDUCTIONS, REBATEMENT, CLAIMS OF USURY OR CLAIMS WITH RESPECT TO THE NEGLIGENCE OF ANY RELEASED PARTY), FOR OR BECAUSE OF ANY MATTERS OR THINGS OCCURRING, EXISTING OR ACTIONS DONE, OMITTED TO BE DONE, OR SUFFERED TO BE DONE BY ANY OF THE RELEASED PARTIES, IN EACH CASE, ON OR PRIOR TO THE DATE HEREOF AND ARE IN ANY WAY DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY CONNECTED TO ANY OF THIS NINTH AMENDMENT, THE CREDIT AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (COLLECTIVELY, THE “RELEASED MATTERS”). THE BORROWER AND EACH OTHER OBLIGOR, BY EXECUTION HEREOF, HEREBY ACKNOWLEDGES AND AGREES THAT THE AGREEMENTS IN THIS SECTION 5.10 ARE INTENDED TO COVER AND BE IN FULL SATISFACTION FOR ALL OR ANY ALLEGED INJURIES OR DAMAGES ARISING IN CONNECTION WITH THE RELEASED MATTERS.
5.11 Termination. Notwithstanding anything herein to the contrary, to the extent the Ninth Amendment Effective Date has not occurred by December 31, 2018, then, except as stated in the immediately following sentence, (a) this Amendment shall be null and void and (b) the Existing Credit Agreement shall continue in full force and effect without giving effect to any amendments, waivers or other provisions contained herein shall be reinstated. Notwithstanding the foregoing, the addition of Section 9.26 to the Existing Credit Agreement specified in Section 2.21 above shall survive any termination pursuant to this Section 5.11.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment to be duly executed as of the date first written above.
| BORROWER: | LEGACY RESERVES LP | |||||
| By: | Legacy Reserves GP, LLC, | |||||
| its general partner | ||||||
| By: | /s/ Xxxxx Xxxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxx Xxxxxxxx | |||||
| Title: | Executive Vice President and Chief Financial Officer | |||||
| GUARANTORS: | LEGACY RESERVES OPERATING LP | |||||
| By: | Legacy Reserves Operating GP LLC, its general partner | |||||
| By: | Legacy Reserves LP, its sole member | |||||
| By: | Legacy Reserves GP, LLC, its general partner | |||||
| By: | /s/ Xxxxx Xxxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxx Xxxxxxxx | |||||
| Title: | Executive Vice President and Chief Financial Officer | |||||
| LEGACY RESERVES OPERATING GP LLC | ||||||
| By: | Legacy Reserves LP, its sole member | |||||
| By: | Legacy Reserves GP, LLC, its general partner | |||||
| By: | /s/ Xxxxx Xxxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxx Xxxxxxxx | |||||
| Title: | Executive Vice President and Chief Financial Officer | |||||
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| LEGACY RESERVES SERVICES, INC. | ||
| DEW GATHERING LLC | ||
| PINNACLE GAS TREATING LLC | ||
| LEGACY RESERVES ENERGY SERVICES LLC | ||
| LEGACY RESERVES GP, LLC | ||
| LEGACY RESERVES INC. | ||
| By: | /s/ Xxxxx Xxxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxx Xxxxxxxx | |
| Title: | Executive Vice President and Chief Financial Officer | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| ADMINISTRATIVE AGENT: | XXXXX FARGO BANK, NATIONAL | |||||
| ASSOCIATION, as Administrative Agent and a Lender | ||||||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |||||
| Name: | Xxxxxxxxx Xxxxxxx | |||||
| Title: | Vice President | |||||
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| LENDERS: | COMPASS BANK | |||||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| UBS AG, STAMFORD BRANCH | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Associate Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| BANK OF AMERICA, N.A. | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Managing Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| ROYAL BANK OF CANADA | ||
| By: | /s/ Xxx X. Xxxxxxx | |
| Name: | Xxx X. Xxxxxxx | |
| Title: | Authorized Signatory | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| AG ENERGY FUNDING, LLC | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Authorized Signatory | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| JPMORGAN CHASE BANK, N.A. | ||
| By: | /s/ Xxxxxxxxx Xxxxxxx | |
| Name: | Xxxxxxxxx Xxxxxxx | |
| Title: | Authorized Officer | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| BMO XXXXXX FINANCING, INC. | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | |
| Title: | Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| BARCLAYS BANK PLC | ||
| By: | /s/ Sydney X. Xxxxxx | |
| Name: | Sydney X. Xxxxxx | |
| Title: | Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Page Dillehunt | |
| Name: | Page Dillehunt | |
| Title: | Managing Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| CITIBANK, N.A. | ||
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | Vice President | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| SOCIETE GENERALE | ||
| By: | /s/ Xxx Xxxxxxxxxxx | |
| Name: | Xxx Xxxxxxxxxxx | |
| Title: | Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| BRANCH BANKING AND TRUST COMPANY | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Vice President | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| WEST TEXAS NATIONAL BANK | ||
| By: | /s/ C. Xxxxx Xxxxxx | |
| Name: | C. Xxxxx Xxxxxx | |
| Title: | Senior Vice President | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| FIFTH THIRD BANK | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Director | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
| BP ENERGY COMPANY | ||
| By: | /s/ Xxxxxxx Xxx | |
| Name: | Xxxxxxx Xxx | |
| Title: | Attorney-in-Fact | |
| SIGNATURE PAGE NINTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT |
