FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (herein called the “Amendment”)
made as of January 31, 2008 by and among Encore Acquisition Company, a Delaware corporation (the
“Borrower”), Encore Operating, L.P., a Texas limited partnership (“Operating”), Bank of America,
N.A., as Administrative Agent (the “Administrative Agent”) and L/C Issuer (the “L/C Issuer”), and
the Lenders party to the Original Agreement defined below (the “Lenders”).
W I T N E S S E T H:
WHEREAS, the Borrower, Operating, the Administrative Agent, the L/C Issuer, the Co-Syndication
Agents and Co-Documentation Agents named therein and the Lenders are party to that certain Amended
and Restated Credit Agreement dated as of March 7, 2007 (the “Original Agreement”), for the purpose
and consideration therein expressed, whereby the L/C Issuer became obligated to issue Letters of
Credit to the Borrower and the Lenders became obligated to make loans to the Borrower as therein
provided; and
WHEREAS, the Borrower, Operating, the Administrative Agent, the L/C Issuer and the Lenders
party hereto desire to amend the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained herein and in the Original Agreement, in consideration of the loans and other credit
which may hereafter be made by the Lenders and the L/C Issuer to the Borrower, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1.1. Terms Defined in the Original Agreement. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in the Original Agreement
shall have the same meanings whenever used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise requires, the
following terms when used in this Amendment shall have the meanings assigned to them in this
Section 1.2.
“Amendment” means this First Amendment to Amended and Restated Credit
Agreement.
“Amendment Documents” means this Amendment, the Consent and Agreement of the
Guarantors relating to this Amendment and all other documents or instruments delivered in
connection herewith or therewith.
“Credit Agreement” means the Original Agreement as amended hereby.
[First Amendment to Amended and Restated Credit Agreement]
ARTICLE II.
AMENDMENT AND WAIVER TO ORIGINAL AGREEMENT
Section 2.1. Hedge Transactions. Section 7.10 of the Original Agreement is hereby
amended to add the following sentence at the end thereof:
“The foregoing restriction of this Section 7.10 shall not apply to any Oil and Gas Hedge
Transaction that is a floor or put transaction not requiring any future payments or delivery
by any Credit Party.”
Section 2.2. Waiver. Required Lenders hereby waive any violation of Section 7.10(ii)
of the Credit Agreement that may have occurred between January 1, 2008 and the Effective Date.
Section 2.3. Borrowing Base. After giving effect to the sale by the Borrower of
properties described on Exhibit A attached hereto and any reduction to the Borrowing Base otherwise
required by such sale, the Borrower, the Administrative Agent and the Lenders agree that from the
date of such sale until the next redetermination or adjustment thereof, the Borrowing Base shall be
$870,000,000.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. Conditions to Effectiveness of Amendment. This Amendment shall become
effective when and only when the Administrative Agent shall have received executed counterparts of
this Amendment (or a consent to this Amendment) from the Required Lenders and the following
conditions precedent has been satisfied (the date such conditions are so satisfied herein called
the “Effective Date”); provided, however, that the provisions in Section 2.3 shall only
become effective when the Administrative Agent shall have received executed counterparts of this
Amendment from one hundred percent (100%) of the Lenders:
The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Credit Party, each dated the Effective Date
(or, in the case of certificates of governmental officials, a recent date before the
Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) counterparts of the Amendment Documents executed by the applicable Credit
Parties sufficient in number for distribution to the Administrative Agent, Required
Lenders and the Borrower;
(ii) a certificate on behalf of each Credit Party certifying that none of the
resolutions, incumbency certificates, organizational documents and/or certificates of
Responsible Officers of each Credit Party as the Administrative Agent has previously
required evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection
[First Amendment to Amended and Restated Credit Agreement]
2
with the Loan Documents to which such Credit Party is a party have been amended or are
otherwise inaccurate since they were delivered;
(iii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Credit Party is duly organized or formed, and
that each Credit Party is validly existing and in good standing.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties. In order to induce the L/C Issuer and
each Lender to enter into this Amendment, the Borrower and Operating represent and warrant to the
L/C Issuer and each Lender that the representations and warranties contained in Article V of the
Original Agreement or any other Loan Document are true and correct in all material respects on the
Effective Date (including, for all purposes, after giving effect to the Amendment Documents as
“Loan Documents” referred to therein), except to the extent such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except for purposes of this Amendment, the representations and warranties contained in
subsections (a) and (b) of Section 5.04 of the Credit Agreement shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of
the Credit Agreement.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Ratification of Agreements. The Original Agreement as hereby amended is
hereby ratified and confirmed in all respects. The other Loan Documents, as they may be amended or
affected by the various Amendment Documents, are hereby ratified and confirmed in all respects.
Any reference to the Credit Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The execution, delivery and effectiveness of this Amendment
and the other Amendment Documents shall not, except as expressly provided herein or therein,
operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders under
the Credit Agreement, or any other Loan Document nor constitute a waiver of any provision of the
Credit Agreement, or any other Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties, covenants and
agreements of any Loan Party herein shall survive the execution and delivery of this Amendment and
the performance hereof, and shall further survive until all of the Obligations are paid in full.
All statements and agreements contained in any certificate or instrument delivered by any Loan
Party hereunder or under the Credit Agreement to the Administrative Agent or any Lender shall be
deemed to constitute representations and warranties by, and/or agreements and covenants of such
Loan Party under this Amendment and under the Credit Agreement.
[First Amendment to Amended and Restated Credit Agreement]
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Section 5.3. Loan Documents. This Amendment is and the other Amendment Documents are
each a Loan Document, and all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto and thereto.
Section 5.4. Governing Law. This Amendment shall be governed by and construed in
accordance with the Laws applicable to the Credit Agreement.
Section 5.5. Counterparts; Fax. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each of which when so
executed shall be deemed to constitute one and the same Amendment. This Amendment and the other
Amendment Documents may be validly executed by facsimile or other electronic transmission.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[The remainder of this page has been intentionally left blank.]
[First Amendment to Amended and Restated Credit Agreement]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above written.
ENCORE ACQUISITION COMPANY |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx, Senior Vice President, | ||||
Chief Financial Officer and Treasurer | ||||
ENCORE OPERATING, L.P. | ||||||||
By: | EAP Operating, LLC., its sole general partner | |||||||
By: | /s/ Xxxxxx X. Xxxxxx | |||||||
Xxxxxx X. Xxxxxx, Senior Vice President, Chief Financial Officer and Treasurer |
Signature Page to First Amendment to Credit Agreement
BANK OF AMERICA, N.A., as the Administrative Agent |
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By: | /s/ Xxxx XxxXxxxx | |||
Xxxx XxxXxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
BANK OF AMERICA, N.A., as a Lender, L/C Issuer |
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By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Xxxxxxx X. Xxxxxxxx | ||||
Managing Director | ||||
Signature Page to First Amendment to Credit Agreement
WACHOVIA BANK, N.A., as a Lender |
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By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Xxxxxx X. Xxxxxxxx | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
FORTIS CAPITAL CORP., as a Lender |
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By: | /s/ Xxxxxxx Xxxxx | |||
Xxxxxxx Xxxxx | ||||
Director | ||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Xxxxxxx Xxxxxxx | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
BNP PARIBAS, as a Lender |
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By: | /s/ Xxxxx Xxxx | |||
Xxxxx Xxxx | ||||
Managing Director | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Xxxxx Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
CALYON NEW YORK BRANCH, as a Lender |
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By: | /s/ Xxxxxxx Xxxxx | |||
Xxxxxxx Xxxxx | ||||
Vice President | ||||
By: | /s/ Xxx Xxxxxxxx | |||
Xxx Xxxxxxxx | ||||
Managing Director | ||||
Signature Page to First Amendment to Credit Agreement
BMO CAPITAL MARKETS FINANCING, INC., as a Lender |
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By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
XXXXXXX XXXXX CAPITAL, A DIVISION OF
XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES, as a Lender |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Xxxxxxx Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender |
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By: | /s/ Xxxx Xxxxxx | |||
Xxxx Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
SUNTRUST BANK, as a Lender |
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By: | /s/ Xxxxx Xxxxx | |||
Xxxxx Xxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
ALLIED IRISH BANKS PLC, as a Lender |
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By: | /s/ Xxxxxx Xxxx | |||
Xxxxxx Xxxx | ||||
EVP - Director | ||||
By: | /s/ Xxxxx Xxxxxxx | |||
Xxxxx Xxxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
THE BANK OF NOVA SCOTIA, as a Lender |
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By: | /s/ Xxxxx Xxxxx | |||
Xxxxx Xxxxx | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
COMERICA BANK, as a Lender |
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By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender |
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By: | /s/ Xxxx Xxxxxxxx | |||
Xxxx Xxxxxxxx | ||||
Authorized Signatory | ||||
Signature Page to First Amendment to Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as a
Lender |
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By: | /s/ Xxxxxx Xxxxx | |||
Xxxxxx Xxxxx | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
MIZUHO CORPORATE BANK, LTD., as a
Lender |
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By: | /s/ Xxxxxxx Xxxxxxx | |||
Xxxxxxx Xxxxxxx | ||||
Deputy General Manager | ||||
Signature Page to First Amendment to Credit Agreement
NATIXIS, as a Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Xxxxxxx X. Xxxxxxxxx | ||||
Managing Director | ||||
By: | /s/ Liana Tchernysheva | |||
Liana Tchernysheva | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION, as a Lender |
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By: | /s/ Xxxxxxx X. Xxxx | |||
Xxxxxxx X. Xxxx | ||||
General Manager | ||||
Signature Page to First Amendment to Credit Agreement
XXXXX FARGO BANK, N.A., as a Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Xxxxxxx X. Xxxxxxx | ||||
Senior Vice President | ||||
Signature Page to First Amendment to Credit Agreement
BANK OF SCOTLAND, as a Lender |
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By: | /s/ Xxxxx Xxxxx | |||
Xxxxx Xxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
DNB NOR BANK ASA, as a Lender |
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By: | /s/ Asa Jemseby Xxxxxxx | |||
Xxx Jemseby Xxxxxxx | ||||
Vice President | ||||
By: | /s/ Xxxxxxxx Xxxxxxx | |||
Xxxxxxxx Xxxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
UNION BANK OF CALIFORNIA, N.A., as a Lender |
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By: | /s/ Xxxxxx Xxxxx | |||
Xxxxxx Xxxxx | ||||
Assistant Vice President | ||||
By: | /s/ Xxxxx Xxxxxxxxx | |||
Xxxxx Oserberg | ||||
Senior Vice President | ||||
Signature Page to First Amendment to Credit Agreement
CITIBANK, N.A., as a Lender |
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By: | /s/ Xxxxx X. Xxxx | |||
Xxxxx X. Xxxx | ||||
Attorney-in-Fact | ||||
Signature Page to First Amendment to Credit Agreement
THE FROST NATIONAL BANK, as a Lender |
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By: | /s/ Xxxx X. Xxxxxx | |||
Xxxx X. Xxxxxx | ||||
Senior Vice President | ||||
Signature Page to First Amendment to Credit Agreement
ROYAL BANK OF CANADA, as a Lender |
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By: | /s/ Xxx X. XxXxxxxxxxx | |||
Xxx X. XxXxxxxxxxx | ||||
Authorized Signatory | ||||
Signature Page to First Amendment to Credit Agreement
WESTLB AG, NEW YORK BRANCH, as a Lender |
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By: | /s/ Xxxxxx Xxxxxxxxx | |||
Xxxxxx Xxxxxxxxx | ||||
Associate Director | ||||
By: | /s/ Xxxxxxx Linforgia | |||
Xxxxxxx Linforgia | ||||
Director | ||||
Signature Page to First Amendment to Credit Agreement
COMPASS BANK, as a Lender |
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By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
Xxxxxxxx X. Xxxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
MIDFIRST BANK, as a Lender |
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By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
Vice President | ||||
Signature Page to First Amendment to Credit Agreement
UBS LOAN FINANCE LLC, as a Lender |
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By: | /s/ Xxxx X. Xxxx | |||
Xxxx X. Xxxx | ||||
Associate Director | ||||
By: | /s/ Xxxx X. Xxxxx | |||
Xxxx X. Xxxxx | ||||
Associate Director | ||||
Signature Page to First Amendment to Credit Agreement
DZ BANK AG DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN, NEW YORK BRANCH, as a Lender |
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By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
First Vice President | ||||
By: | /s/ Xxxxxx Xxxx | |||
Xxxxxx Xxxx | ||||
Assistant Treasurer | ||||
Signature Page to First Amendment to Credit Agreement
RZB FINANCE LLC, as a Lender |
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By: | /s/ Xxxxxxx Xxxxx | |||
Xxxxxxx Xxxxx | ||||
Assistant Vice President | ||||
By: | /s/ Xxxx X. Valishe | |||
Xxxx X. Valishe | ||||
Signature Page to First Amendment to Credit Agreement
STERLING BANK, as a Lender |
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By: | /s/ Xxxxxxx Xxxxxx | |||
Xxxxxxx Xxxxxx | ||||
Senior Vice President | ||||
Signature Page to First Amendment to Credit Agreement
EXHIBIT A
Exhibit A to First Amendment to Amended and Restated Credit Agreement
[First Amendment]
Consent and Agreement to First Amendment to
Amended and Restated Credit Agreement dated as of January 31, 2008
Amended and Restated Credit Agreement dated as of January 31, 2008
The undersigned each hereby (a) consents to the provisions of the Amendment and the
transactions contemplated herein and hereby, (b) ratifies and confirms the Amended and Restated
Guaranty dated as of March 7, 2007 made by it in favor of Bank of America, N.A., as the
Administrative Agent, as such Guaranty has been supplemented, and the other Loan Documents to which
it is a party and (c) agrees that its obligations and covenants under the Loan Documents are
unimpaired hereby and shall remain in full force and effect.
EAP OPERATING, LLC |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx | ||||
Senior Vice President, Chief Financial Officer, and Treasurer |
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ENCORE OPERATING LOUISIANA, LLC |
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By: | /s/ Xxxxxx Xxxxxx | |||
EAP PROPERTIES, INC. |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx | ||||
Senior Vice President, Chief Financial Officer, and Treasurer |
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[Consent and Agreement]