FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT Dated as of June 3, 2010 among OASIS PETROLEUM NORTH AMERICA LLC, as Borrower, THE GUARANTORS PARTY HERETO, BNP PARIBAS as Administrative Agent, and THE LENDERS PARTY HERETO
Exhibit 10.5
Execution Version
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
Dated as of June 3, 2010
among
OASIS PETROLEUM NORTH AMERICA LLC,
as Borrower,
as Borrower,
THE GUARANTORS PARTY HERETO,
BNP PARIBAS
as Administrative Agent,
and
THE LENDERS PARTY HERETO
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT (this “First
Amendment”) dated as of June 3, 2010, among OASIS PETROLEUM NORTH AMERICA LLC, a Delaware
limited liability company (the “Borrower”), the Guarantors party hereto (the
“Guarantors” and collectively with the Borrower, the “Obligors”); each of the
lenders party to the Credit Agreement referred to below (collectively, the “Lenders”); and
BNP PARIBAS, 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
A. The Parent, the Borrower, the Administrative Agent and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of February 26, 2010 (as amended, the
“Credit Agreement”), pursuant to which the Lenders have made certain credit available to
and on behalf of the Borrower.
B. Concurrently with the effectiveness hereof, Oasis Petroleum Inc. is consummating an initial
public offering of its Equity Interests.
C. The Borrower, the Guarantors, the Administrative Agent and the Lenders have agreed to amend
certain provisions of the Credit Agreement and consent to certain other matters.
D. 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 used herein but not otherwise defined
herein has the meaning given such term in the Credit Agreement, as amended by this First Amendment.
Unless otherwise indicated, all section references in this First Amendment refer to sections of
the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Amendment to Introductory Paragraph. The definition of “Parent”, as defined in
the introductory paragraph of the Credit Agreement, is hereby amended to refer to each of Oasis
Petroleum LLC, a Delaware limited liability company, and Oasis Petroleum Inc., a Delaware
corporation, and all references in the Credit Agreement and other Loan Documents to “the Parent”
shall be deemed to be a reference to each of such entities mutatis mutandis.
2.2 Amendments to Section 1.02.
(a) The definition of “Agreement” is hereby amended in its entirety to read as
follows:
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“Agreement” means this Credit Agreement, as amended by the First
Amendment, as the same may be amended or supplemented from time to time.
(b) The definition of “Change in Control” is hereby amended in its entirety to read as
follows:
“Change in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the meaning of
the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect
on the date hereof) other than Permitted Holders, of Equity Interests representing
more than 35% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of Oasis Petroleum Inc., (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of Oasis Petroleum
Inc. by Persons who were not (i) initial members of the board of directors of Oasis
Petroleum Inc., (ii) nominated by the board of directors of Oasis Petroleum Inc. or
(iii) appointed by directors so nominated or (c) Oasis Petroleum Inc. fails to own
directly or indirectly all of the Equity Interests of the Borrower.
(c) The following definition of “First Amendment” is hereby added where alphabetically
appropriate to read as follows:
“First Amendment” means that certain First Amendment to Amended and
Restated Credit Agreement and Consent, dated as of June 3, 2010, among the Borrower,
the Guarantors, the Administrative Agent and the Lenders party thereto.
(d) The definition of “Initial Public Offering” is hereby amended in its entirety to
read as follows:
“Initial Public Offering” means a primary offering to the public for
cash of any Equity Interests (other than Disqualified Capital Stock) of Oasis
Petroleum Inc. resulting in the receipt by Oasis Petroleum Inc. of net cash proceeds
of at least $200,000,000; provided that issuances of securities pursuant to employee
benefit plans shall not be considered an “Initial Public Offering”.
(e) The definition of “Parent LLC Agreement” is hereby deleted in its entirety.
(f) The definition of “Permitted Holders” is hereby amended in its entirety to read as
follows:
“Permitted Holders” means Oasis Petroleum Management LLC, a Delaware
limited liability company, OAS Holding Company LLC, a Delaware limited liability
company (“Holdings”), Encap Energy Capital Fund VI, L.P., a Texas limited
partnership (“Encap Capital VI”), Encap VI-B Acquisitions, L.P., a Texas
limited partnership (“Encap Acquisitions”) and Encap Energy Capital Fund
VII, L.P., a Texas limited partnership (“Encap Capital VII”, and together
with
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Encap Capital VI and Encap Acquisitions, the “Encap Members”), any
general partner or managing member of any Encap Member or Holdings or any Person
formed and managed or Controlled by such Encap Member, its general partner or
managing member or an Affiliate of its general partner or managing member as a
vehicle for purposes of making investments.
(g) The following definition of “Senior Notes” is hereby added where alphabetically
appropriate to read as follows:
“Senior Notes” means any unsecured senior or senior subordinated Debt
securities (whether registered or privately placed) incurred pursuant to a Senior
Notes Indenture.
(h) The following definition of “Senior Notes Indenture” is hereby added where
alphabetically appropriate to read as follows:
“Senior Notes Indenture” means any indenture among Oasis Petroleum
Inc., as issuer, the subsidiary guarantors party thereto and the trustee named
therein, pursuant to which the Senior Notes are issued, as the same may be amended
or supplemented in accordance with Section 9.04(e).
2.3 Amendment to Section 2.07. Section 2.07 is hereby amended by inserting the
following sub-section (e) immediately following the existing sub-section (d) therein:
(e) Reduction of Borrowing Base Upon Issuance of Senior Notes.
Notwithstanding anything to the contrary contained herein, if Oasis Petroleum Inc.
issues any Senior Notes during the period between Scheduled Redetermination dates or
not in conjunction with an Interim Redetermination, then on the date on which such
Senior Notes are issued, the Borrowing Base then in effect shall be reduced by an
amount equal to the product of 0.25 multiplied by the stated principal amount of
such Senior Notes. The Borrowing Base as so reduced shall become the new Borrowing
Base immediately upon the date of such issuance, effective and applicable to the
Borrower, the Agents, the Issuing Bank and the Lenders on such date until the next
redetermination or modification thereof hereunder. For purposes of this Section
2.07(e), if any such Debt is issued at a discount or otherwise sold for less than
“par”, the reduction shall be calculated based upon the stated principal amount
without reference to such discount.
2.4 Amendment to Section 3.04(c). Section 3.04(c) is hereby amended by inserting the
following sub-section (iv) immediately following the existing sub-section (iii) therein and
renumbering the existing sub-sections (iv) and (v) as sub-sections (v) and (vi) respectively:
(iv) Upon any adjustments to the Borrowing Base pursuant to Section 2.07(e), if the
total Revolving Credit Exposures exceeds the Borrowing Base as adjusted, then the
Borrower shall (a) prepay the Borrowings in an aggregate principal amount equal to
such excess, and (b) if any excess remains after prepaying all of
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the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on
behalf of the Lenders an amount equal to such excess to be held as cash collateral
as provided in Section 2.08(j). The Borrower shall be obligated to make such
prepayment and/or deposit of cash collateral, if required, on the date it issues
such Senior Notes; provided that all payments required to be made pursuant to this
Section 3.04(c)(iv) must be made on or prior to the Termination Date.
2.5 Amendment to Section 7.02. Section 7.02 is hereby amended in its entirety to read
as follows:
Section 7.02 Authority; Enforceability. The Transactions are within the
Parent’s, the Borrower’s and each Guarantor’s corporate, limited liability company
or partnership, as applicable, powers and have been duly authorized by all necessary
corporate, limited liability company, partnership and, if required, shareholder,
member or partner action (including, without limitation, any action required to be
taken by any class of directors of the Parent, the Borrower or any other Person,
whether interested or disinterested, in order to ensure the due authorization of the
Transactions). Each Loan Document to which the Parent, the Borrower and each
Guarantor is a party has been duly executed and delivered by the Borrower and such
Guarantor and constitutes a legal, valid and binding obligation of the Parent, the
Borrower and such Guarantor, as applicable, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general principles
of equity, regardless of whether considered in a proceeding in equity or at law.
2.6 Amendment to Section 7.04. Sections 7.04(a) and (b) are hereby amended in its
entirety to read as follows:
(a) Oasis Petroleum LLC has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (1) as of
and for the fiscal year ended December 31, 2008, reported on by
PricewaterhouseCoopers LLP, independent public accountants, and (2) as of and for
the fiscal quarter and the portion of the fiscal year ended September 30, 2009,
certified by its chief financial officer. Such financial statements present fairly,
in all material respects, the financial position and results of operations and cash
flows of Oasis Petroleum LLC and its consolidated subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the unaudited quarterly financial
statements.
(b) Since December 31, 2008, (i) there has been no event, development or
circumstance that has had or could reasonably be expected to have a Material Adverse
Effect except, with respect only to events or circumstances contemplated by clause
(a) of the definition of “Material Adverse Effect”, for the Initial Public Offering
or actions undertaken in preparation of or in connection with the Initial
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Public Offering and (ii) the business of the Parent, the Borrower and the
Subsidiaries has been conducted only in the ordinary course, in all material
respects, consistent with past business practices.
2.7 Amendment to Section 7.12. Section 7.12 is hereby amended in its entirety to read
as follows:
Section 7.12 Insurance. The Parent and the Borrower have, and have caused
all of their respective Subsidiaries to have, (a) all insurance policies sufficient
for the compliance by each of them with all material Governmental Requirements and
all material agreements and (b) insurance coverage in at least amounts and against
such risk (including, without limitation, public liability) that are usually insured
against by companies similarly situated and engaged in the same or a similar
business for the assets and operations of the Parent, the Borrower and their
respective Subsidiaries. The Administrative Agent and the Lenders have been named
as additional insureds in respect of such liability insurance policies and the
Administrative Agent has been named as loss payee with respect to Property loss
insurance.
2.8 Amendment to Section 7.15. Section 7.15 is hereby amended in its entirety to read
as follows:
Section 7.15 Location of Business and Offices. The Borrower’s jurisdiction
of organization is the State of Delaware; the name of the Borrower as listed in the
public records of its jurisdiction of organization is “Oasis Petroleum North America
LLC”; and the organizational identification number of the Borrower in its
jurisdiction of organization is 4354265 (or, in each case, as set forth in a notice
delivered to the Administrative Agent pursuant to Section 8.01(m) in accordance with
Section 12.01). The Borrower’s principal place of business and chief executive
offices are located at the address specified in Section 12.01 (or as set forth in a
notice delivered pursuant to Section 8.01(m) and Section 12.01(c)). The
jurisdiction of organization of Oasis Petroleum LLC is the State of Delaware; the
name of Oasis Petroleum LLC as listed in the public records of its jurisdiction of
organization is “Oasis Petroleum LLC”, and the organizational identification number
of Oasis Petroleum LLC in its jurisdiction of organization is 4307625 (or, in each
case, as set forth in a notice delivered to the Administrative Agent pursuant to
Section 8.01(m) in accordance with Section 12.01). The principal place of business
and chief executive offices of Oasis Petroleum LLC are located at the address
specified in Section 12.01 (or as set forth in a notice delivered pursuant to
Section 8.01(m) and Section 12.01(c)). The jurisdiction of organization of Oasis
Petroleum Inc. is the State of Delaware; the name of Oasis Petroleum Inc. as listed
in the public records of its jurisdiction of organization is “Oasis Petroleum Inc.”,
and the organizational identification number of Oasis Petroleum Inc. in its
jurisdiction of organization is 4793429 (or, in each case, as set forth in a notice
delivered to the Administrative Agent pursuant to Section 8.01(m) in accordance with
Section 12.01). The principal place of business and
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chief executive offices of Oasis Petroleum Inc. are located at the address specified
in Section 12.01 (or as set forth in a notice delivered pursuant to Section 8.01(m)
and Section 12.01(c)). Each Subsidiary’s jurisdiction of organization, name as
listed in the public records of its jurisdiction of organization, organizational
identification number in its jurisdiction of organization, and the location of its
principal place of business and chief executive office is stated on Schedule 7.14
(or as set forth in a notice delivered pursuant to Section 8.01(m)).
2.9 Amendment to Section 8.01.
(a) Sub-Sections 8.01(a) and (b) are hereby amended in their entirety to read as follows:
(a) Annual Financial Statements. As soon as available, but in any event in
accordance with then applicable law and not later than 90 days after the end of each
fiscal year of Oasis Petroleum Inc., (i) its audited consolidated balance sheet and
related statements of operations, members’ 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, all reported on by independent public accountants of
recognized national standing (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 condition and results of operations of Oasis
Petroleum Inc. 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
in accordance with then applicable law and not later than 60 days after the end of
each of the first three fiscal quarters of each fiscal year of Oasis Petroleum Inc.,
its consolidated balance sheet and related statements of operations, members’ equity
and cash flows as of the end of and for such fiscal 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, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of Oasis Petroleum Inc. 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.
(b) Section 8.01 is hereby amended by inserting the following sub-section (r) immediately
following the existing sub-section (q):
(r) Issuance of Senior Notes. In the event Oasis Petroleum Inc. decides to
issue Senior Notes as contemplated by Section 9.02(i), 10 days prior written notice
of such offering therefor, the amount thereof and the anticipated date of
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closing and a copy of the preliminary offering memorandum (if any) and the final
offering memorandum (if any) and any other material documents relating to such
offering of Senior Notes.
2.10 Amendment to Section 8.07. Section 8.07 is hereby amended in its entirety to
read as follows:
Section 8.07 Insurance. The Parent and the Borrower will, and will cause
each of their respective Subsidiaries to, maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks as
are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations. The loss payable clauses or provisions
in said insurance policy or policies insuring any of the collateral for the Loans
shall be endorsed in favor of and made payable to the Administrative Agent as its
interests may appear and such policies shall name the Administrative Agent and the
Lenders as “additional insureds” and provide that the insurer will endeavor to give
at least 30 days prior notice of any cancellation to the Administrative Agent.
2.11 Amendment to Section 8.14. Section 8.14 is hereby amended by amending the
existing sub-section (b) in its entirety, inserting the following new subsection (c) immediately
following sub-section (b) and amending the existing sub-section (c) in its entirety to be
sub-section (d), with such sub-sections to read as set forth below:
(b) The Parent and the Borrower shall promptly cause each Domestic Subsidiary of
either thereof to guarantee the Indebtedness pursuant to the Guaranty Agreement. In
connection with any such guaranty, the Borrower shall, or shall cause such Domestic
Subsidiary to (a) execute and deliver a supplement to the Guaranty Agreement
executed by such Subsidiary, (b) pledge all of the Equity Interests of such new
Subsidiary (including, without limitation, delivery (if applicable) of original
certificates evidencing the Equity Interests of such Subsidiary, together with an
appropriate undated stock powers for each certificate duly executed in blank by the
registered owner thereof) and (c) execute and deliver such other additional closing
documents, certificates and legal opinions as shall reasonably be requested by the
Administrative Agent.
(c) In the event that the Borrower or any Domestic Subsidiary becomes the owner of a
Foreign Subsidiary which has total assets in excess of $1,000,000, then the Borrower
shall promptly, or shall cause such Domestic Subsidiary to promptly, pledge 65% of
all the Equity Interests of such Foreign Subsidiary (including, without limitation,
delivery of original stock certificates evidencing such Equity Interests of such
Foreign Subsidiary, together with appropriate stock powers for each certificate duly
executed in blank by the registered owner thereof) and execute and deliver such
other additional closing documents, certificates and legal opinions as shall
reasonably be requested by the Administrative Agent.
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(d) If any Event of Default shall occur and be continuing, then the Parent and the
Borrower shall, and shall cause each Domestic Subsidiary of either thereof to,
within ten (10) Business Days after notice by Administrative Agent, grant to the
Administrative Agent as security for the Indebtedness a first-priority Lien interest
(provided Excepted Liens of the type described in clauses (a) to (d) and (f) of the
definition thereof may exist, but subject to the provisos at the end of such
definition) on all of their Oil and Gas Properties not already subject to a Lien of
the Security Instruments such that after giving effect thereto, the Mortgaged
Properties will represent substantially all of the Oil and Gas Properties of the
Borrower and the Domestic Subsidiaries. All such Liens will be created and
perfected by and in accordance with the provisions of deeds of trust, security
agreements and financing statements or other Security Instruments, all in form and
substance reasonably satisfactory to the Administrative Agent and in sufficiently
executed (and acknowledged where necessary or appropriate) counterparts for
recording purposes.
2.12 Amendment to Section 8.15. Section 8.15 is hereby amended in its entirety to
read as follows:
Section 8.15 ERISA Compliance. The Parent and the Borrower will promptly
furnish and will cause their respective Subsidiaries and any ERISA Affiliate to
promptly furnish to the Administrative Agent (a) promptly after the filing thereof
with the United Stated Secretary of Labor or the Internal Revenue Service, copies of
each annual and other report with respect to each Plan or any trust created
therunder, and (b) immediately upon becoming aware of the occurrence of any
“prohibited transaction,” as described in section 406 of ERISA or in section 4975 of
the Code, in connection with any Plan or any trust created thereunder, a written
notice signed by the President or the principal Financial Officer, the Parent, the
Subsidiary or the ERISA Affiliate, as the case may be, specifying the nature
thereof, what action the Borrower, the Parent, the Subsidiary or the ERISA Affiliate
is taking or proposes to take with respect thereto, and, when known, any action
taken or proposed by the Internal Revenue Service or the Department of Labor with
respect thereto.
2.13 Amendment to Section 9.02.
(a) Section 9.02(h) is hereby amended in its entirety to read as follows:
(h) other Debt (excluding Debt of Foreign Subsidiaries) not to exceed $2,500,000 in
the aggregate at any one time outstanding.
(b) Section 9.02 is hereby amended by inserting the following sub-section (i) and (j)
immediately following the existing sub-section (h):
(i) Debt of Foreign Subsidiaries to non-Affiliated Persons that is not secured
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by liens on any property of, not guaranteed by and not other otherwise of recourse
to the Borrower or any Guarantor.
(i) unsecured Senior Notes of Oasis Petroleum Inc., the principal amount of which
does not exceed $200,000,000 and any guarantees thereof; provided that (i) the
Borrower shall have complied with Section 8.01(r), (ii) at the time of incurring
such Senior Notes (A) no Default has occurred and is then continuing and (B) no
Default would result from the incurrence of such Senior Notes after giving effect to
the incurrence of such Senior Notes (and any concurrent repayment of Debt with the
proceeds of such incurrence, if any), (iii) on the same day as the incurrence of
such Debt, the Borrowing Base shall be adjusted to the extent required by Section
2.07(e) and prepayment is made to the extent required by Section 3.04(c)(iv), (iv)
such Senior Notes do not have any scheduled principal amortization prior to the date
which is one year after the Maturity Date, (v) such Senior Notes does not mature
sooner than the date which is one year after the Maturity Date, (vi) such Senior
Notes and any guarantees thereof are on terms, taken as a whole, at least as
favorable to the Borrower and the Guarantors as market terms for issuers of similar
size and credit quality given the then prevailing market conditions as determined by
the Administrative Agent and (vii) such Senior Notes do not have any mandatory
prepayment or redemption provisions (other than customary change of control or asset
sale tender offer provisions) which would require a mandatory prepayment or
redemption in priority to the Indebtedness.
2.14 Amendment to Section 9.04. Section 9.04 is hereby in its entirety to read as
follows:
9.04 Dividends, Distributions and Redemptions; Repayment of Senior Notes and Amendment
to Terms of Senior Notes.
(a) Restricted Payments. The Parent and the Borrower 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 or make any
distribution of its Property to its Equity Interest holders, except (i) Oasis
Petroleum Inc. may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares of its Equity Interests (other than Disqualified
Capital Stock), (ii) Subsidiaries of Oasis Petroleum Inc. may declare and pay
dividends ratably with respect to their Equity Interests, (iii) Oasis Petroleum Inc.
may make Restricted Payments pursuant to and in accordance with stock option plans
or other benefit plans for management or employees of the Borrower and its
Subsidiaries and (iv) Oasis Petroleum Inc. may make payments to former employees in
connection with the termination of such former employee’s employment in an aggregate
amount not to exceed $250,000 in any calendar year for the purpose of repurchasing
Equity Interests in any member of the Parent issued to such former employee pursuant
to stock option plans or other benefit plans for management or employees of the
Borrower and its Subsidiaries.
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(b) Repayment of Senior Notes; Amendment to Terms of Senior Notes. The
Parent and the Borrower will not, and will not permit any of their respective
Subsidiaries to, prior to the date that is ninety-one (91) days after the Maturity
Date: (i) call, make or offer to make any optional or voluntary Redemption of or
otherwise optionally or voluntarily Redeem (whether in whole or in part) the Senior
Notes; provided that Oasis Petroleum Inc. may prepay the Senior Notes with the net
cash proceeds of any sale of Equity Interests (other than Disqualified Capital
Stock) of Oasis Petroleum Inc., (ii) amend, modify, waive or otherwise change,
consent or agree to any amendment, modification, waiver or other change to, any of
the terms of the Senior Notes or the Senior Notes Indenture if (A) the effect
thereof would be to shorten its maturity or average life or increase the amount of
any payment of principal thereof or increase the rate or shorten any period for
payment of interest thereon or (B) such action requires the payment of a consent fee
(howsoever described), provided that the foregoing shall not prohibit the execution
of supplemental indentures associated with the incurrence of additional Senior Notes
to the extent permitted by Section 9.02(i) or the execution of supplemental
indentures to add guarantors if required by the terms of any Senior Notes Indenture
provided such Person complies with Section 8.14(b) or (C) with respect to Senior
Notes that are subordinated to the Indebtedness or any other Debt, designate any
Debt (other than obligations of the Borrower and the Subsidiaries pursuant to the
Loan Documents) as “Specified Senior Indebtedness” or “Specified Guarantor Senior
Indebtedness” or give any such other Debt any other similar designation for the
purposes of any Indenture related to Senior Notes that are subordinated to the
Indebtedness or any other Debt.
2.15 Amendments to Section 9.05.
(a) The lead-in to Section 9.05 is hereby amended by deleting “The Borrower will not, and will
not permit any Subsidiary to” and replacing it with “The Parent and the Borrower will not, and will
not permit any of their respective Subsidiaries to”.
(b) Section 9.05(e) is hereby amended in its entirety to read as follows:
(e) deposits maturing within one year from the date of creation thereof with,
including certificates of deposit issued by, any Lender or any office located in the
United States of any other bank or trust company which is organized under the laws
of the United States or any state thereof, has capital, surplus and undivided
profits aggregating at least $100,000,000 (as of the date of such bank or trust
company’s most recent financial reports) and has a short term deposit rating of no
lower than A2 or P2, as such rating is set forth from time to time, by S&P or
Xxxxx’x, respectively or, in the case of any Foreign Subsidiary, a bank organized in
a jurisdiction in which the Foreign Subsidiary conducts operations having assets in
excess of $500,000,000 (or its equivalent in another currency).
(c) Section 9.05(g) is hereby amended in its entirety to read as follows:
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(g) Investments (i) made by the Borrower in or to the Guarantors, (ii) made by
any Subsidiary in or to the Borrower or any Guarantor that is a Subsidiary, (iii)
made by the Borrower or any Subsidiary in or to Domestic Subsidiaries that are not
Guarantors, provided that the aggregate of all Investments made by the Borrower and
the Guarantors in or to all Domestic Subsidiaries that are not Guarantors shall not
exceed $2,500,000 at any time, and (iv) made by the Borrower or any Domestic
Subsidiary in or to any Foreign Subsidiary in an aggregate amount at any one time
outstanding not to exceed $50,000,000, provided that, with respect to this clause
(iv), no such Investment shall be made unless (A) both prior to and after giving
effect to such Investment no Default or Event of Default exists and (B) after giving
effect to such Investment the Borrowing Base then in effect exceeds the total
Revolving Credit Exposures by at least an amount equal to ten percent (10%) of the
then current Borrowing Base less cash then maintained by the Borrower.
2.16 Amendment to Section 9.11. Section 9.11 is hereby amended in its entirety to
read as follows:
Section 9.11. Mergers, Etc. The Parent and the Borrower will not, and will
not permit any Subsidiary to, 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, except that (a) any Wholly-Owned Domestic Subsidiary may merge with any
other Wholly-Owned Domestic Subsidiary, (b) the Parent and/or Borrower may merge
with any Wholly-Owned Domestic Subsidiary so long as the Parent and/or Borrower is
the survivor and (c) any Foreign Subsidiary may merge with any other Foreign
Subsidiary; provided that if one of such Foreign Subsidiaries is a Wholly-Owned
Subsidiary, the survivor shall be a Wholly-Owned Subsidiary.
2.17 Amendment to Section 9.15. Section 9.15 is hereby amended in its entirety to
read as follows:
Section 9.15. Subsidiaries. The Parent and the Borrower will not, and will
not permit any of their respective Subsidiaries to, create or acquire any additional
Subsidiary unless the Borrower gives written notice to the Administrative Agent of
such creation or acquisition and complies with Section 8.14(b), Section 8.14(c) and
Section 8.14(d). The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell, assign or otherwise dispose of any Equity Interests in any
Subsidiary except in compliance with Section 9.12(d). The Parent shall not, and
shall not permit any of its Domestic Subsidiaries to, sell, assign or otherwise
dispose of any Equity Interests in any Domestic Subsidiary except in compliance with
Section 9.12(d).
2.18 Amendment to Section 10.01. Section 10.01(g) is hereby amended by inserting in
line 1 thereof after the phrase “any event or condition” the phrase “(other than customary change
11
of control or asset sale tender offer provisions of the Senior Notes Indenture which would
require a mandatory prepayment or redemption of the Debt arising thereunder)”.
Section 3. Consent.
3.1 Initial Public Offering. Subject to the terms and conditions set forth herein,
the Lenders hereby consent to the actions of the Parent, the Borrower, all of their respective
Subsidiaries and Affiliates undertaken in preparation of or in connection with the initial public
offering for Oasis Petroleum Inc., including (a) the corporate reorganization, including the
transfer of the Equity Interests in Oasis Petroleum LLC to Oasis Petroleum Inc. and (b) all other
actions contemplated by (i) that certain Contribution Agreement among Oasis Petroleum Inc., Oasis
Petroleum LLC, OAS Holding Company LLC, OAS Mergerco LLC and Encap Energy Capital Fund VI, L.P. to
be executed in connection with the Initial Public Offering and substantially in the form attached
hereto as Exhibit A and (ii) that certain Agreement and Plan of Merger among Oasis Petroleum LLC,
OAS Holding Company LLC and OAS Mergerco LLC to be executed in connection with the Initial Public
Offering and substantially in the form attached hereto as Exhibit B notwithstanding the
requirements of any provision of the Credit Agreement. The consent set forth in the preceding
sentence is limited to the extent specifically set forth therein and no other terms, covenants or
provisions of the Credit Agreement or any other Loan Document are intended to be effected by such
consent.
3.2 October 1, 2010 Scheduled Redetermination. Subject to the terms and conditions
set forth herein, the Lenders hereby consent to the use of a Reserve Report dated as of June 1,
2010 in connection with the October 1, 2010 Scheduled Redetermination of the Borrowing Base
notwithstanding the requirement in section 8.12(a) of the Credit Agreement that such Reserve Report
be dated as of July 1, 2010.
Section 4. Conditions Precedent. Except as specifically set forth below with respect to
the consent contained in Section 3.2, this First Amendment shall become effective as of the date
when each of the following conditions is satisfied (or waived in accordance with Section 12.02 of
the Credit Agreement):
4.1 The Administrative Agent shall have received from the Majority Lenders, each Guarantor and
the Borrower, counterparts (in such number as may be requested by the Administrative Agent) of this
First Amendment signed on behalf of such Person.
4.2 The Administrative Agent shall have received a certificate of the Secretary or an
Assistant Secretary of Oasis Petroleum Inc. setting forth (a) resolutions of its board of directors
with respect to the authorization of such Person to execute and deliver the Loan Documents to which
it is a party and to enter into the transactions contemplated in those documents, (b) the officers
of Oasis Petroleum Inc. (i) who are authorized to sign the Loan Documents to which it is a party
and (ii) who will, until replaced by another officer or officers duly authorized for that purpose,
act as its representative for the purposes of signing documents and giving notices and other
communications in connection with the Credit Agreement and the transactions contemplated hereby,
(c) specimen signatures of such authorized officers, and (d) the articles or certificate of
incorporation and by-laws or other applicable organizational documents of Oasis
12
Petroleum Inc., certified as being true and complete. The Administrative Agent and the
Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in
writing from the Borrower to the contrary.
4.3 The Administrative Agent shall have received (a) an executed Assumption Agreement relating
to the Guaranty Agreement and (b) an executed Supplement to the Guaranty Agreement, in each case,
from Oasis Petroleum Inc.
4.4 The Administrative Agent shall have received confirmation of (a) the acquisition by Oasis
Petroleum Inc. of 100% of the Equity Interests in Oasis Petroleum LLC and (b) the consummation of
the Initial Public Offering of Oasis Petroleum Inc.
4.5 The Administrative Agent shall have received any prepayment of Borrowings required
pursuant to Section 3.04(c)(iv).
4.6 The Administrative Agent and the Lenders shall have received all fees and other amounts
due and payable on or prior to the date hereof.
4.7 No Default shall have occurred and be continuing as of the date hereof, after giving
effect to the terms of this First Amendment.
4.8 The Administrative Agent shall have received such other documents as the Administrative
Agent or its special counsel may reasonably require.
Irrespective of whether or not the remainder of this Fourth Amendment becomes effective, the
consent contained in Section 3.2 of this First Amendment shall automatically become effective upon
the satisfaction of the condition precedent set forth in Section 4.1 hereof.
The Administrative Agent is hereby authorized and directed to declare this First Amendment 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 4 or the waiver of
such conditions as permitted hereby. Such declaration shall be final, conclusive and binding upon
all parties to the Credit Agreement for all purposes. Notwithstanding the foregoing, except with
respect to the consent contained in Section 3.2 hereof, this First Amendment shall not become
effective unless each of the foregoing conditions is satisfied or waived prior to the earlier of
(a) 2:00 p.m., New York City time, on October 1, 2010 and (b) receipt by the Administrative Agent
of notification from the Borrower that an Initial Public Offering has been abandoned or is no
longer actively being pursued.
Section 5. Miscellaneous.
5.1 Confirmation. The provisions of the Credit Agreement, as amended by this First
Amendment, shall remain in full force and effect following the effectiveness of this First
Amendment.
5.2 Limited Consent. Except as expressly set forth in Section 3 hereof, the execution,
delivery, performance and effectiveness of this First Amendment shall not operate nor
13
be deemed to be nor construed as a consent to deviation from, or waiver of, any term,
provision, condition, representation, warranty or covenant contained in the Credit Agreement, the
other Loan Documents, or any other contract or instrument.
5.3 No Waiver. Neither the execution by the Administrative Agent or the Lenders of
this First Amendment, nor any other act or omission by the Administrative Agent or the Lenders or
their officers in connection herewith, shall be deemed a waiver by the Administrative Agent or the
Lenders of any Defaults or Events of Default which may exist, which may have occurred prior to the
date of the effectiveness of this First Amendment or which may occur in the future under the Credit
Agreement and/or the other Loan Documents. Similarly, nothing contained in this First Amendment
shall directly or indirectly in any way whatsoever either: (a) impair, prejudice or otherwise
adversely affect the Administrative Agent’s or the Lenders’ right at any time to exercise any
right, privilege or remedy in connection with the Loan Documents with respect to any Default or
Event of Default, (b) except as expressly provided herein, amend or alter any provision of the
Credit Agreement, the other Loan Documents, or any other contract or instrument, or (c) constitute
any course of dealing or other basis for altering any obligation of the Borrower or any right,
privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the
other Loan Documents, or any other contract or instrument. Each reference in the Credit Agreement
to “this Agreement”, “hereunder”, “hereof”, “herein” or any other word or words of similar import
shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in any
other Loan Document to the Credit Agreement or any word or words of similar import shall be and
mean a reference to the Credit Agreement as amended hereby.
5.4 Ratification and Affirmation; Representations and Warranties. Each Obligor hereby
(a) acknowledges the terms of this First 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 and (c) represents and warrants to the Lenders that as of the date hereof, after
giving effect to the terms of this First 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 and (iii) no event
or events have occurred which individually or in the aggregate could reasonably be expected to have
a Material Adverse Effect.
5.5 Counterparts. This First 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 First Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
5.6 No Oral Agreement. This First 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
14
unwritten oral agreements of the parties. There are no subsequent oral agreements between the
parties.
5.7 GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5.8 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 First 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.
5.9 Severability. Any provision of this First 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.
5.10 Successors and Assigns. This First Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
[SIGNATURES BEGIN NEXT PAGE]
15
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed as
of the date first written above.
| BORROWER: | OASIS PETROLEUM NORTH AMERICA LLC |
|||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
| GUARANTORS: | OASIS PETROLEUM LLC |
|||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
| OASIS PETROLEUM INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Xxxxxx X. Xxxx | ||||
| President and Chief Executive Officer | ||||
| ADMINISTRATIVE AGENT AND LENDER: | BNP PARIBAS |
|||
| By: | /s/ Xxxxxx Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxx Xxxxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| LENDERS: | JPMORGAN CHASE BANK, N.A. |
|||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| UBS LOAN FINANCE, LLC |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Director | |||
| XXXXX FARGO BANK, N.A. |
||||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President Senior Portfolio Manager | |||
Exhibit A
Form of Contribution Agreement
Form of Contribution Agreement
FORM OF
CONTRIBUTION AGREEMENT
By and Among
OASIS PETROLEUM INC.
OASIS PETROLEUM LLC
OAS HOLDING COMPANY LLC
OAS MERGERCO LLC
And
ENCAP ENERGY CAPITAL FUND VI, L.P.
Dated as of , 2010
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of , 2010 (this “Agreement”), is by and among Oasis
Petroleum Inc., a Delaware corporation (“Oasis”), Oasis Petroleum LLC, a Delaware limited liability
company (“Oasis LLC”), OAS Holding Company LLC, a Delaware limited liability company (“Oasis
Holdings”), OAS Mergerco LLC, a Delaware limited liability company (“Merger LLC”) and Encap Energy
Capital Fund VI, L.P., a Delaware limited partnership (“Encap”). The above-named entities are
sometimes referred to in this Agreement each as a “Party” and collectively as the
“Parties.” Capitalized terms used herein shall have the meanings assigned to such terms in
Article I.
RECITALS
WHEREAS, Oasis LLC formed Oasis Holdings as a limited liability company under the Delaware Limited
Liability Company Act, as amended (the “Act”) and owns all of the equity interests in Oasis
Holdings.
WHEREAS, pursuant to the terms of the Limited Liability Company Agreement of Oasis Holdings dated
as of February 26, 2010 (the “New Holdings Agreement”), the various parties to the New Holdings
Agreement agreed that the transactions and actions being consummated by the terms of this Agreement
were transactions that the parties were obligated to consummate subsequent to the formation of
Oasis Holdings and, as a consequence, this Agreement is in furtherance of the terms and obligations
of the parties under the New Holdings Agreement;
WHEREAS, Oasis Holdings formed Merger LLC as a limited liability company under the Act and owns all
of the equity interests in Merger LLC.
WHEREAS, Oasis Holdings incorporated Oasis as a corporation under the Delaware General Corporation
Law, as amended, and contributed $10.00 to Oasis in exchange for 1,000 shares of Common Stock.
WHEREAS, as contemplated by that certain Registration Statement on Form S-1 (Registration No.
333-165212) filed by Oasis with the Securities and Exchange Commission to register the public
offering and sale of common stock of Oasis (the “IPO”), the Parties intend to cause various
transactions to occur at or prior to the initial closing of the IPO.
WHEREAS, concurrently with the consummation of the transactions contemplated hereby, each of the
following transactions shall occur:
| 1. | Oasis LLC will contribute to Oasis Holdings $7,222 in cash in exchange for a 10% membership interest in Oasis Holdings. | ||
| 2. | Encap will contribute to Oasis Holdings membership interests in Oasis LLC representing a 0.01% interest in Oasis LLC in exchange for a 90% membership interest in Oasis Holdings. | ||
| 3. | Merger LLC will, pursuant to the Agreement and Plan of Merger, dated the date hereof (the “Merger Agreement”), merge with and into Oasis LLC, the separate |
| organizational existence of Merger LLC shall cease, and Oasis LLC shall continue as the surviving entity (the “Merger”). |
| 4. | By virtue of the Merger, all of the membership interests in Oasis LLC shall be converted into membership interests in Oasis Holdings, whereby Oasis LLC will become a wholly-owned subsidiary of Oasis Holdings and the former members of Oasis LLC will be admitted to and become the members of Oasis Holdings, owning the same percentage interests in Oasis Holdings that were owned in Oasis LLC (the “Conversion”). | ||
| 5. | Oasis Holdings will contribute to Oasis all of the membership interests in Oasis LLC in exchange for shares of Common Stock, representing 100% of the outstanding capital stock of Oasis. | ||
| 6. | The limited liability company agreements of Oasis Holdings and Oasis LLC will be amended and restated to the extent necessary to reflect the applicable matters set forth above and contained in this Agreement. |
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
The terms set forth below in this Article I shall have the meanings ascribed to them below or in
the part of this Agreement referred to below:
“Common Stock” means the common stock of Oasis, par value $0.01 per share.
“Effective Time” means 12:01 a.m. Central Standard Time on the date of the closing of the
IPO.
“Underwriters” means those underwriters listed in the Underwriting Agreement.
“Underwriting Agreement” means that certain Underwriting Agreement between Xxxxxx Xxxxxxx
and UBS Securities LLC, as representatives of the Underwriters, Oasis and Oasis Holdings, dated as
of , 2010.
ARTICLE II
CONTRIBUTIONS AND ACKNOWLEDGEMENTS
CONTRIBUTIONS AND ACKNOWLEDGEMENTS
Section 2.1 Contribution to Oasis Holdings by Oasis LLC. Effective immediately
following the Effective Time, Oasis LLC hereby contributes to Oasis Holdings, as a capital
contribution, cash in an amount of $7,222, in exchange for a 10% membership interest in Oasis
Holdings.
Section 2.2 Contribution to Oasis Holdings by Encap. Effective immediately following
the Effective Time, Encap hereby contributes to Oasis Holdings, as a capital
contribution, membership interests in Oasis LLC representing a 0.01% interest in Oasis LLC, in
exchange for a 90% membership interest in Oasis Holdings.
Section 2.3 Acknowledgement of Merger and Conversion. Effective immediately following
the consummation of the transaction described in Section 2.2, the Parties hereto hereby
acknowledge, pursuant to the Merger Agreement, the completion of the Merger and the Conversion.
Section 2.4 Contribution of Oasis LLC by Oasis Holdings to Oasis. Effective
immediately following the consummation of the transaction described in Section 2.3, Oasis Holdings
hereby contributes, conveys, assigns and transfers to Oasis all of the membership interests in
Oasis LLC, in exchange for shares of Common Stock.
Section 2.5 Amended and Restated Limited Liability Company Agreement of Oasis LLC.
Effective immediately following the consummation of the transaction described in Section 2.4, Oasis
shall enter into an Amended and Restated Limited Liability Company Agreement of Oasis LLC to admit
Oasis as the sole member of Oasis LLC.
ARTICLE III
FURTHER ASSURANCES
FURTHER ASSURANCES
From time to time after the Effective Time, and without any further consideration, the Parties
agree to execute, acknowledge and deliver all such additional, assignments, conveyances,
instruments, notices and other documents, and to do all such other acts and things, all in
accordance with applicable law, as may be necessary or appropriate (a) more fully to assure that
the applicable Parties own all of the properties, rights, titles, interests, estates, remedies,
powers and privileges granted by this Agreement, or which are intended to be so granted, (b) more
fully and effectively to vest in the applicable Parties and their respective successors and assigns
beneficial and record title to the interests contributed and assigned by this Agreement or intended
to be so and (c) more fully and effectively to carry out the purposes and intent of this Agreement.
ARTICLE IV
EFFECTIVE TIME
EFFECTIVE TIME
Notwithstanding anything contained in this Agreement to the contrary, the provisions of Article II
and Article III shall not be binding or have any effect until Oasis and Oasis Holdings execute the
Underwriting Agreement, at which time all such provisions shall be effective and operative without
further action by any Party hereto.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Order of Completion of Transactions. The transactions provided for in
Article II of this Agreement shall be completed in the order and at the times set forth in Article
II.
Section 5.2 Headings; References; Interpretation. All Article and Section headings in
this Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any of the provisions hereof. The words “hereof,” “herein” and
“hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement
as a whole, and not to any particular provision of this Agreement. All references herein to
Articles and Sections shall, unless the context requires a different construction, be deemed to be
references to the Articles and Sections of this Agreement. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall include all other
genders, and the singular shall include the plural and vice versa. The use herein of the word
“including” following any general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not non-limiting language (such as “without
limitation”, “but not limited to”, or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter.
Section 5.3 Assignment of Agreement; Successors and Assigns. Neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by any Party without the
prior consent of each of the Parties. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
Section 5.4 No Third Party Rights. The provisions of this Agreement are intended to
bind the Parties as to each other and are not intended to and do not create rights in any other
person or confer upon any other person any benefits, rights or remedies, and no person is or is
intended to be a third party beneficiary of any of the provisions of this Agreement.
Section 5.5 Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all signatory Parties had signed the same document. All counterparts
shall be construed together and shall constitute one and the same instrument.
Section 5.6 Choice of Law. This Agreement shall be subject to and governed by the laws
of the State of Texas. Each Party hereby submits to the jurisdiction of the state and federal
courts in the State of Texas and to venue in Houston, Texas.
Section 5.7 Severability. If any of the provisions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter hereof, such contravention or invalidity shall not
invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not
contain the particular provisions or provisions held to be invalid and an equitable adjustment
shall be made and necessary provision added so as to give effect to the intention of the Parties as
expressed in this Agreement at the time of execution of this Agreement.
Section 5.8 Amendment or Modification. This Agreement may be amended or modified from
time to time only by the written agreement of all the Parties. Each such instrument shall be
reduced to writing and shall be designated on its face as an amendment to this Agreement.
Section 5.9 Integration. This Agreement and the instruments referenced herein
supersede all previous understandings or agreements among the Parties, whether oral or written,
with respect to the specific transactions effected pursuant to this Agreement and such
instruments.
Section 5.10 Deed; Xxxx of Sale; Assignment. To the extent required and permitted by
applicable law, this Agreement shall also constitute a “deed,” “xxxx of sale” or “assignment” of
the assets and interests referenced herein.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly executed as of the date
first above written.
| OASIS PETROLEUM INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OASIS PETROLEUM LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OASIS HOLDING COMPANY LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OAS MERGERCO LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ENCAP ENERGY CAPITAL FUND VI, L.P. |
||||
| By: | EnCap Equity Fund VI GP, L.P., | |||
| General Partner of EnCap Energy Capital Fund VI, L.P. | ||||
| By: | EnCap Investments, L.P., | |||
| General Partner of EnCap Equity Fund VI GP, L.P. | ||||
| By: | EnCap Investments GP, L.L.C., | |||
| General Partner of EnCap Investments L.P. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit B
Form of Agreement and Plan of Merger
Form of Agreement and Plan of Merger
FORM OF
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of , 2010 and
effective as of the Effective Time (as defined below), pursuant to Section 18-209 of the Delaware
Limited Liability Company Act (the “Act”) is made and entered into by and among Oasis Petroleum
LLC, a Delaware limited liability company (“Oasis LLC”), OAS Holding Company LLC, a Delaware
limited liability company (“Oasis Holdings”), and OAS Mergerco LLC, a Delaware limited liability
company (“Merger LLC”, and together with Oasis LLC and Oasis Holdings, the “Parties”).
RECITALS
WHEREAS, pursuant to the terms of the Limited Liability Company Agreement of Oasis Holdings
dated as of February 26, 2010 (the “New Holdings Agreement”), the various parties to the New
Holdings Agreement agreed that the transactions and actions being consummated by the terms of this
Agreement were transactions that the parties were obligated to consummate subsequent to the
formation of Oasis Holdings and, as a consequence, this Agreement is in furtherance of the terms
and obligations of the parties under the New Holdings Agreement;
WHEREAS, the Board of Managers of Oasis LLC, pursuant to the Liability Company Agreement of
Oasis LLC dated March 5, 2007, as amended by Amendment No. 1 to Limited Liability Company Agreement
effective November 1, 2007, as further amended by Amendment to Amendment No. 1 to Limited Liability
Company Agreement dated June 24, 2008, as further amended by Amendment No. 2 to Limited Liability
Company Agreement dated December 1, 2009 (as amended, the “Oasis LLC Agreement”), have adopted by
unanimous written consent, resolutions recommending and approving the Merger (as defined below)
upon the terms and conditions hereinafter set forth;
WHEREAS, Oasis Holdings, as the sole member of Merger LLC, has adopted, by its unanimous
written consent, resolutions recommending and approving the Merger upon the terms and conditions
hereinafter set;
WHEREAS, the Parties desire to enter into this Agreement to set forth the terms and conditions
upon which the Merger shall take place; and
WHEREAS, Oasis Holdings shall issue interests to the members of Oasis LLC (other than Oasis
Holdings) in connection with the Merger described herein and has entered into this Agreement to
acknowledge its obligations herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
herein contained, and for the purpose of prescribing the terms and conditions of the Merger and the
mode of carrying the same into effect, the Parties hereby covenant and agree as follows:
AGREEMENTS
1. Effective Time. The Merger shall become effective upon the filing of a Certificate
of Merger, in substantially the form of the Certificate of Merger attached hereto as Annex
A, with the Secretary of State of the State of Delaware, or at such later date specified in
such Certificate of Merger (such time being referred to herein as the “Effective Time”).
2. Name; Type of Entity; Jurisdiction. The name, type of entity and jurisdiction of
formation of the parties to the Merger are as follows:
| Name of Entity | Type of Entity | Jurisdiction of Formation | ||
| Oasis Petroleum LLC | limited liability company | Delaware | ||
| OAS Mergerco LLC | limited liability company | Delaware |
3. Merger. In accordance with Section 18-209 of the Act and subject to and upon the
terms and conditions of this Agreement, Merger LLC shall, at the Effective Time, be merged with and
into Oasis LLC, the separate organizational existence of Merger LLC shall cease and Oasis LLC shall
continue as the surviving entity (the “Merger”). Oasis LLC, as the entity surviving the Merger
(the “Surviving Entity”), shall continue its existence as a limited liability company under the
laws of the State of Delaware and operate under a new amended and restated limited liability
company agreement to be effective as of the Effective Time, the form of which is attached hereto as
Annex B.
4. Conversion of Ownership Interests. At the Effective Time, by virtue of the Merger,
all of the interests in Oasis LLC issued and outstanding immediately prior to the Effective Time
(other than those owned by Oasis Holdings) shall be converted into interests in Oasis Holdings, as
set forth on Schedule I, so that, after giving effect to such conversion, (i) Oasis
Holdings is the sole holder of all of the issued and outstanding interests in Oasis LLC and
therefore the sole member thereof and (ii) the holders of interests in Oasis LLC issued and
outstanding immediately prior to the Effective Time (other than those owned by Oasis Holdings)
shall constitute the members of Oasis Holdings as set forth on Schedule I.
5. Oasis Holdings Signature to this Agreement. Oasis Holdings is a signatory hereto
solely for the purposes of agreeing to (i) issue the interests described in Section 4
above, (ii) admit the holders of such interests as members and (iii) amend and restate its Limited
Liability Company Agreement, dated February 26, 2010 (the “Original Holdings Agreement”), as
described in Section 6 below.
6. Constituent Documents of the Surviving Entity. At the Effective Time, upon the
Merger becoming effective, Oasis LLC’s certificate of formation, as existing and constituted
immediately prior to the Effective Time of the Merger, shall be and constitute the certificate of
formation of the Surviving Entity until amended in the manner provided by law, and the New Holdings
Agreement shall become effective in accordance with its terms, be deemed to amend
and restate the Original Holdings Agreement in its entirety and thereafter continue as the
effective limited liability agreement of Oasis Holdings until thereafter amended.
7. Amendment. At any time prior to the Effective Time, this Agreement may, to the
extent permitted by the Act, be supplemented, amended or modified by the mutual consent of Oasis
Holdings, on its own behalf and as the sole member of Merger LLC and Oasis LLC.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed to be an original but all of which shall constitute one and the
same agreement.
9. Governing Law. This Agreement shall be governed by and construed and enforced
under the laws of the State of Delaware.
10. Entire Agreement; No Third Party Beneficiaries. This Agreement (including the
Annexes and Schedules hereto and the documents and instruments referred to herein) constitutes the
entire agreement and supersedes all prior agreements and understandings, both written and oral,
among the Parties with respect to the subject matter hereof, and is not intended to confer upon any
person other than the Parties any rights or remedies hereunder..
11. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the Parties without the prior written consent of
the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
12. Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full
force and effect. The parties further agree that if any provision contained herein is, to any
extent, held invalid or unenforceable in any respect under the laws governing this Agreement, they
shall take any actions necessary to render the remaining provisions of this Agreement valid and
enforceable to the fullest extent permitted by law and, to the extent necessary, shall amend or
otherwise modify this Agreement to replace any provision contained herein that is held invalid or
unenforceable with a valid and enforceable provision giving effect to the intent of the parties to
the greatest extent legally permissible.
[Signature page follows.]
IN WITNESS WHEREOF, Oasis LLC and Merger LLC have caused this Agreement to be executed as of
the date first written above.
| SURVIVING ENTITY: | OASIS PETROLEUM LLC |
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| By: | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
| MERGING ENTITY: | OAS MERGERCO LLC |
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| By: | OAS HOLDING COMPANY LLC, | |||
| its sole member | ||||
| By: | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
| AGREED TO AND ACKNOWLEDGED BY: OAS HOLDING COMPANY LLC |
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| By: | ||||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | President and Chief Executive Officer | |||
ANNEX A
ANNEX B
SCHEDULE I
