TENTH AMENDMENT AND BORROWING BASE AGREEMENT DATED AS OF MAY 12, 2015 AMONG BERRY PETROLEUM COMPANY, LLC, AS BORROWER, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT, AND THE LENDERS PARTY HERETO
Execution Version
TENTH AMENDMENT AND BORROWING BASE AGREEMENT
DATED AS OF MAY 12, 2015
AMONG
XXXXX PETROLEUM COMPANY, LLC,
AS BORROWER,
AS BORROWER,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS PARTY HERETO
TENTH AMENDMENT AND BORROWING BASE AGREEMENT
THIS TENTH AMENDMENT AND BORROWING BASE AGREEMENT (this “Agreement”) dated as of May 12, 2015, among XXXXX PETROLEUM COMPANY, LLC, a Delaware limited liability company (the “Borrower”); the Lenders listed on the signature pages hereto; and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).
R E C I T A L S
WHEREAS, the Borrower, the Administrative Agent, the Lenders and the other Agents party thereto are parties to that certain Second Amended and Restated Credit Agreement dated as of November 15, 2010 (as amended to date, the “Credit Agreement”), pursuant to which the Lenders have made certain credit and other financial accommodations available to and on behalf of the Borrower.
WHEREAS, the Borrower has requested that the Lenders redetermine the Borrowing Base under the Credit Agreement as set forth in this Agreement, and the Lenders are willing, subject to the terms and conditions set forth herein, to redetermine the Borrowing Base as set forth herein.
NOW, THEREFORE, to induce the Administrative Agent and the Lenders to enter into this Agreement, 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. Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement.
Section 2. Amendment to Credit Agreement. The Credit Agreement is hereby amended by deleting the amount “$50,000,000” in the definition of LC Sublimit and replacing it with the amount “$30,000,000”.
Section 3. Borrowing Base. From and after the Effective Date, the Borrowing Base shall be, and hereby is, equal to the amount of $1,200,000,000, which Borrowing Base shall remain in effect until the next Redetermination or the Borrowing Base is otherwise redetermined or adjusted in accordance with the Credit Agreement. Each of the Borrower, on the one hand, and the Administrative Agent and the Required Lenders, on the other hand, agree that the redetermination of the Borrowing Base pursuant to this Section 3 shall constitute a Scheduled Redetermination. This Section 3 constitutes notice of the redetermined Borrowing Base in accordance with Section 2.9 of the Credit Agreement.
Section 4. Borrowing Base Account
4.1 From and after the Effective Date until the balance in the Borrowing Base Account (as defined below) is $0.00, the Borrower may only withdraw amounts from the Borrowing Base Account with either (a) a concurrent reduction of the Borrowing Base by an amount equal to the
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amount of such withdrawal or (b) the consent of the Required Lenders in connection with a Redetermination of the Borrowing Base.
4.2 The Borrower shall deliver a written notice to the Administrative Agent two (2) Business Days in advance of the date on which it desires to make a withdrawal pursuant to Section 4.1(a) above acknowledging that the Borrowing Base shall automatically be reduced by an amount equal to the amount of such withdrawal concurrently with such withdrawal. The Borrower may not make a withdrawal pursuant to Section 4.1(a) above if after giving effect to the reduction of the Borrowing Base upon such withdrawal a Borrowing Base Deficiency would exist.
4.3 Upon each Redetermination of the Borrowing Base the Administrative Agent shall inform the Borrower concurrently with the delivery of the notice of the new Borrowing Base of amounts, if any, which may be withdrawn pursuant to Section 4.1(b) above.
Section 5. Conditions Precedent This Agreement shall become effective on the date when each of the following conditions is satisfied (or waived in accordance with Section 10.1(a) of the Credit Agreement) (such date, the “Effective Date”):
5.1 The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date and all other fees the Borrower has agreed to pay in connection with this Agreement, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
5.2 The Administrative Agent shall have received from Lenders constituting the Required Lenders and the Borrower, executed counterparts (in such number as may be requested by the Administrative Agent) of this Agreement signed on behalf of such Person.
5.3 The Borrower shall have deposited $250,000,000 in security account No. 1ba66992 with Xxxxx Fargo Bank National Association that is subject to a security control agreement with the Administrative Agent in form and substance reasonably acceptable to the Administrative Agent (the “Borrowing Base Account”).
5.4 The Administrative Agent shall have received from the Borrower executed counterparts (in such number as may be reasonably requested by the Administrative Agent) of the Security Agreement dated as of the date hereof granting a security interest to the Administrative Agent in the Borrowing Base Account.
5.5 No Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Agreement.
The Administrative Agent is hereby authorized and directed to declare this Agreement to be effective when it has received documents confirming or certifying, to the satisfaction of the Administrative Agent, compliance with the conditions set forth in this Section 5 or the waiver of such conditions as permitted in Section 10.1(a) 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 6. Miscellaneous.
6.1 Confirmation. The provisions of the Credit Agreement, as amended by this Agreement, shall remain in full force and effect following the effectiveness of this Agreement.
6.2 Ratification and Affirmation; Representations and Warranties. The Borrower hereby (a) acknowledges the terms of this Agreement; (b) ratifies and affirms (i) 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, and (ii) that the Liens created by the Loan Documents to which it is a party are valid and continuing and secure the Secured Obligations in accordance with the terms thereof, after giving effect to this Agreement; and (c) represents and warrants to the Lenders that on and as of the date hereof, and immediately after giving effect to the terms of this Agreement:
(i) all of the representations and warranties of the Borrower contained in the Loan Documents are true and correct in all material 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 continue to be true and correct in all material respects as of such specified earlier date, and
(ii) no Default or Event of Default has occurred and is continuing.
6.3 Loan Document. This Agreement is a Loan Document.
6.4 Counterparts. This Agreement 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 Agreement by facsimile transmission or electronic (PDF) means shall be effective as delivery of a manually executed counterpart hereof.
6.5 NO ORAL AGREEMENT. THIS AGREEMENT, 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.
6.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
6.7 Payment of Expenses. In accordance with Section 10.4(a) 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 Agreement, 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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6.8 Severability. Any provision of this Agreement 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.
6.9 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
BORROWER: | XXXXX PETROLEUM COMPANY, LLC | |
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | ||
Executive Vice President and Chief Financial Officer | ||
Signature Page to Tenth Amendment and Borrowing
Base Agreement Xxxxx Petroleum Company, LLC
LENDERS: | XXXXX FARGO BANK, N.A., as Administrative Agent, a Lender, Swingline Lender and LC Issuer | |
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | ||
Director | ||
Signature Page to Tenth Amendment and Borrowing
Base Agreement Xxxxx Petroleum Company, LLC
ROYAL BANK OF CANADA, as a Lender | ||
By: | /s/ Xxx X. XxXxxxxxxxx | |
Xxx X. XxXxxxxxxxx | ||
Authorized Signatory | ||
Signature Page to Tenth Amendment and Borrowing
Base Agreement Xxxxx Petroleum Company, LLC
BARCLAYS BANK PLC, as a Lender | ||
By: | /s/ Xxxx Xxxx | |
Xxxx Xxxx | ||
Assistant Vice President | ||
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Base Agreement Xxxxx Petroleum Company, LLC
CITIBANK, N.A., as a Lender | ||
By: | /s/ Xxxxxx Xxxxx | |
Xxxxxx Xxxxx | ||
Vice President | ||
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Base Agreement Xxxxx Petroleum Company, LLC
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | Managing Director | |
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Base Agreement Xxxxx Petroleum Company, LLC
THE ROYAL BANK OF SCOTLAND PLC, as a Lender | ||
By: | /s/ Xxxxx X. Xxxxx | |
Name: | Xxxxx X. Xxxxx | |
Title: | Authorised Signatory | |
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Base Agreement Xxxxx Petroleum Company, LLC
UBS AG, STAMFORD BRANCH, as a Lender | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Director | |
By: | /s/ Xxxxxxx Xxxx | |
Name: | Xxxxxxx Xxxx | |
Title: | Associate Director | |
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Base Agreement Xxxxx Petroleum Company, LLC
XXXXXXX SACHS BANK USA, as a Lender | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Authorized Signatory | |
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CREDIT SUISSE, AG CAYMAN ISLANDS BRANCH, as a Lender | ||
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Authorized Signatory | |
By: | /s/ Xxxxx Xxxxxxxxxx | |
Name: | Xxxxx Xxxxxxxxxx | |
Title: | Authorized Signatory | |
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BANK OF MONTREAL, as a Lender | ||
By: | /s/ Xxxxx X. Xxxxxx | |
Name: | Xxxxx X. Xxxxxx | |
Title: | Managing Director | |
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CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Authorized Signatory | |
By: | /s/ Xxxxxxx X. Xxxx | |
Name: | Xxxxxxx X. Xxxx | |
Title: | Authorized Signatory | |
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THE BANK OF NOVA SCOTIA, as a Lender | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Director | |
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MUFG UNION BANK, N.A. (f/k/a Union Bank, N.A., as a Lender | ||
By: | /s/ Xxxxxx Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Vice President | |
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BANK OF AMERICA, N.A., as a Lender | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: | Xxxxxx Xxxxx | |
Title: | Managing Director | |
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Base Agreement Xxxxx Petroleum Company, LLC
CAPITAL ONE, N.A., as a Lender | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Sr. Vice President | |
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ING CAPITAL LLC, as a Lender | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxxx Xxxx | |
Name: | Xxxxxxx Xxxx | |
Title: | Managing Director | |
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JPMORGAN CHASE BANK, N.A., as a Lender | ||
By: | /s/ Xxxxx Xxxxxxxx | |
Name: | Xxxxx Xxxxxxxx | |
Title: | Authorized Officer | |
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SUN TRUST BANK, as a Lender | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Vice President | |
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U.S. BANK NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Vice President | |
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COMPASS BANK, as a Lender | ||
By: | /s/ Xxxxxxxx X. Xxxxx | |
Name: | Xxxxxxxx Xxxxx | |
Title: | Managing Director | |
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SOCIETE GENERALE, as a Lender | ||
By: | /s/ Xxx Xxxxxxxxxxx | |
Name: | Xxx Xxxxxxxxxxx | |
Title: | Director | |
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DNB CAPITAL LLC, as a Lender | ||
By: | /s/ Asulv Xxxxx | |
Name: | Asulv Tvelt | |
Title: | First Vice President | |
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Senior Vice President | |
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ABN AMRO CAPITAL USA LLC, as a Lender | ||
By: | /s/ Xxxxxxx Xxxxxx | |
Name: | Xxxxxxx Xxxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxxxxx Xxxxxxx | |
Name: | Xxxxxxxxx Xxxxxxx | |
Title: | Director | |
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BNP PARIBAS, as a Lender | ||
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxxxx Xxxxxx-Bouvet | |
Name: | Xxxxxx Xxxxxx-Bouvet | |
Title: | Vice-President | |
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NATIXIS, as a Lender | ||
By: | /s/ Xxxxx X. Xxxxxxx, III | |
Name: | Xxxxx X. Xxxxxxx, III | |
Title: | Managing Director | |
By: | /s/ Xxxxxx Xxxx | |
Name: | Xxxxxx Xxxx | |
Title: | Vice President | |
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender | ||
By: | /s/ Xxxxx X. Xxxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxxx | |
Title: | Managing Director | |
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COMERICA BANK, as a Lender | ||
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Senior Vice President | |
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BRANCH BANKING AND TRUST COMPANY, as a Lender | ||
By: | /s/ Xxxxx June | |
Name: | Xxxxx June | |
Title: | Vice President | |
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TORONTO DOMINION (NEW YORK) LLC, as a Lender THE ROYAL BANK OF SCOTLAND PLC, as a Lender | ||
By: | /s/ Xxxx Xxxxx | |
Name: | Xxxx Xxxxx | |
Title: | Authorized Signatory | |
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FIFTH THIRD BANK, as a Lender | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Name: | Xxxxxx Xxxxxxx | |
Title: | Director | |
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PNC BANK NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Xxx Tyargeon | |
Name: | Xxx Tyargeon | |
Title: | Managing Director | |
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KEYBANK NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Xxxx Xxxxxxxxxxx | |
Name: | Xxxx Xxxxxxxxxxx | |
Title: | Vice President | |
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Base Agreement Xxxxx Petroleum Company, LLC
THE HUNTINGTON NATIONAL BANK, as a Lender | ||
By: | /s/ Xxxxxxxx Xxxxxxxx | |
Name: | Xxxxxxxx Xxxxxxxx | |
Title: | Vice President | |
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Base Agreement Xxxxx Petroleum Company, LLC
ASSOCIATED BANK, N.A., as a Lender | ||
By: | /s/ Xxxxxx Xxxxx | |
Name: | Xxxxxx Xxxxx | |
Title: | Senior Vice President | |
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Base Agreement Xxxxx Petroleum Company, LLC
BOKF, NA dba BANK OF OKLAHOMA, as a Lender | ||
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Vice President | |
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Base Agreement Xxxxx Petroleum Company, LLC
REGIONS BANK, solely for purposes of Section 4 as an Exiting Lender | ||
By: | ||
Name: | ||
Title: | ||
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XXXXXX XXXXXXX BANK, N.A., as a Lender | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Authorized Signatory | |
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DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||
By: | /s/ Xxxx X. Xxxxxxxx | |
Name: | Xxxx X. Xxxxxxxx | |
Title: | Director | |
By: | /s/ Xxxxx Xxxxxxxxx | |
Name: | Xxxxx Xxxxxxxxx | |
Title: | Vice President | |
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Base Agreement Xxxxx Petroleum Company, LLC
BP ENERGY COMPANY, as a Lender | ||
By: | /s/ Xxxx XxXxxxxxx | |
Name: | Xxxx XxXxxxxxx | |
Title: | Attorney-in-Fact | |
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Base Agreement Xxxxx Petroleum Company, LLC
NATIONAL BANK OF CANADA, as a Lender | ||
By: | /s/ Xxxx Xxxxxxxxxx | |
Name: | Xxxx Xxxxxxxxxx | |
Title: | Authorized Signatory | |
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Authorized Signatory | |
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Base Agreement Xxxxx Petroleum Company, LLC
COMMONWEALTH BANK OF AUSTRALIA, as a Lender | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Director | |
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Base Agreement Xxxxx Petroleum Company, LLC
