AMENDMENT NO. 1
Exhibit 10.2
AMENDMENT NO. 1
This AMENDMENT NO. 1 (“Agreement”) dated as of September 2, 2010 (“Effective Date”) is among
Xxxx Xxxx Holdings, LP, a Texas limited partnership (“Borrower”), the affiliates of the Borrower
party hereto (the “Guarantors”), the Lenders (as defined below), and Xxxxx Fargo Bank, N.A. as
administrative agent for such Lenders (in such capacity, the “Administrative Agent”) and as issuing
lender (in such capacity, the “Issuing Lender”).
RECITALS
A. The Borrower is party to that certain Sixth Amended and Restated Credit Agreement dated as
of May 13, 2010 (the “Credit Agreement”) among the Borrower, the lenders party thereto from time to
time (the “Lenders”), the Administrative Agent, and the Issuing Lender.
B. The parties hereto wish to, subject to the terms and conditions of this Agreement, amend
the Credit Agreement as provided herein.
NOW THEREFORE, in consideration of the benefits to be derived by the parties hereto and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Defined Terms; Other Provisions. As used in this Agreement, each
of the terms defined in the opening paragraph and the Recitals above shall have the meanings
assigned to such terms therein. Each term defined in the Credit Agreement and used herein without
definition shall have the meaning assigned to such term in the Credit Agreement, unless expressly
provided to the contrary. Article, Section, Schedule, and Exhibit references are to Articles and
Sections of and Schedules and Exhibits to this Agreement, unless otherwise specified. 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. The term
“including” means “including, without limitation,”. Paragraph headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that such paragraph
headings are not a part of this Agreement and shall not be used in the interpretation of any
provision of this Agreement.
Section 2. Amendments to Credit Agreement.
(a) The definition for “Additional Subordinated Debt” found in Section 1.01 (Certain
Defined Terms) of the Credit Agreement is hereby amended by (i) replacing the following amount
“$500,000,000” found in clause (a)(v) therein with the following amount: “$300,000,000” and (ii)
adding the following phrase to the end of clause (a)(vii) therein: “...other than mandatory
prepayments triggered upon change in control or specified asset sales which triggers are customary
with respect to such type of Debt...”
(b) Clause (j) of Section 6.02 (Debts, Guaranties, and Other Obligations) of the
Credit Agreement is hereby amended by replacing the following amount “$300,000,000” found therein
with the following amount: “$400,000,000”.
(c) Section 6.05 (Restricted Payments) of the Credit Agreement is hereby amended by
(i) deleting the word “and” immediately before clause (e), (ii) replacing the period at the end of
Section 6.05 with “, and”, and (iii) adding the following new clause (f) to the end
thereof:
(f) the Borrower may make cash Restricted Payments in respect of its Class B Units in an
aggregate amount not to exceed $50,000,000 so long as (i) such Restricted Payments are made
with the proceeds of Senior Unsecured Notes and (ii) at least $250,000,000 of Senior
Unsecured Notes are issued by the Borrower on or prior to November 1, 2010.
Section 3. Intercreditor Agreement. Each of the parties hereto acknowledge
that, as contemplated in Section 6.02(j) the Credit Agreement, the Borrower is required to apply
the Debt Incurrence Proceeds of Senior Unsecured Notes to repay in full the Subordinated Debt.
Therefore, notwithstanding anything in the Subordination and Intercreditor Agreement to the
contrary, Lenders hereby consent to (a) such repayment in full of the Subordinated Debt with such
Debt Incurrence Proceeds, and (b) the termination of the Subordination and Intercreditor Agreement
upon the payment in full of the Subordinated Debt and termination of the Subordinated Credit
Agreement.
Section 4. Representations and Warranties. Each of the Guarantors and the
Borrower hereby represents and warrants that: (a) after giving effect to this Agreement, the
representations and warranties contained in the Credit Agreement, as amended hereby, and the
representations and warranties contained in the other Loan Documents are true and correct in all
material respects (except that such materiality qualifier shall not be applicable to any
representation or warranty that already is qualified or modified by materiality in the text
thereof) on and as of the Effective Date as if made on as and as of such date except to the extent
that any such representation or warranty expressly relates solely to an earlier date, in which case
such representation or warranty is true and correct in all material respects (except that such
materiality qualifier shall not be applicable to any representation or warranty that already is
qualified or modified by materiality in the text thereof) as of such earlier date; (b) no Default
has occurred which is continuing; (c) the execution, delivery and performance of this Agreement are
within the corporate, limited liability company, or partnership power and authority of such Person
and have been duly authorized by appropriate corporate and governing action and proceedings; (d)
this Agreement constitutes the legal, valid, and binding obligation of such Person enforceable in
accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the rights of creditors generally and general principles of
equity; (e) there are no governmental or other third party consents, licenses and approvals
required in connection with the execution, delivery, performance, validity and enforceability of
this Agreement; and (f) the Liens under the Security Instruments are valid and subsisting and
secure Borrower’s and the Guarantors’ obligations under the Loan Documents.
Section 5. Conditions to Effectiveness. This Agreement shall become
effective on the Effective Date and enforceable against the parties hereto upon the occurrence of
the following conditions precedent:
(a) The Administrative Agent shall have received multiple original counterparts, as
requested by the Administrative Agent, of this Agreement duly and validly executed and delivered by
duly authorized officers of the Borrower, the Guarantors and the Required Lenders.
(b) The representations and warranties in this Agreement made by the Guarantors and
the Borrower shall be true and correct in all material respects.
(c) The Borrower shall have paid all reasonable fees and expenses of the
Administrative Agent’s outside legal counsel and other consultants pursuant to all invoices
presented for payment on or prior to the Effective Date.
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Section 6. Acknowledgments and Agreements.
(a) The Borrower and each Guarantor acknowledges that on the date hereof all
outstanding Obligations are payable in accordance with their terms and the Borrower and each
Guarantor hereby waives any defense, offset, counterclaim or recoupment with respect thereto.
(b) The Administrative Agent and the Lenders hereby expressly reserve all of their
rights, remedies, and claims under the Loan Documents. Nothing in this Agreement shall constitute
a waiver or relinquishment of (i) any Default or Event of Default under any of the Loan Documents,
(ii) any of the agreements, terms or conditions contained in any of the Loan Documents, (iii) any
rights or remedies of the Administrative Agent or any Lender with respect to the Loan Documents, or
(iv) the rights of the Administrative Agent or any Lender to collect the full amounts owing to them
under the Loan Documents.
(c) Each of the parties hereto hereby adopt, ratify, and confirm the Credit
Agreement, as amended hereby, and acknowledges and agrees that the Credit Agreement, as amended
hereby, is and remains in full force and effect, and the Borrower and the Guarantors acknowledge
and agree that their respective liabilities and obligations under the Credit Agreement, as amended
hereby, and the Guaranties, are not impaired in any respect by this Agreement.
(d) From and after the Effective Date, all references to the Credit Agreement and
the Loan Documents shall mean such Credit Agreement and such Loan Documents as amended by this
Agreement.
(e) This Agreement is a Loan Document for the purposes of the provisions of the
other Loan Documents. Without limiting the foregoing, any breach of representations, warranties,
and covenants under this Agreement shall be a Default or Event of Default, as applicable, under the
Credit Agreement.
Section 7. Reaffirmation of the Guaranty. Each Guarantor hereby ratifies,
confirms, acknowledges and agrees that its obligations under its respective Guaranty are in full
force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the
full and punctual payment, when due, whether at stated maturity or earlier by acceleration or
otherwise, of all of the Guaranteed Obligations (as defined in the Guaranties), as such Guaranteed
Obligations may have been amended by this Agreement, and its execution and delivery of this
Agreement does not indicate or establish an approval or consent requirement by such Guarantor under
its respective Guaranty in connection with the execution and delivery of amendments, consents or
waivers to the Credit Agreement, the Notes or any of the other Loan Documents.
Section 8. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original and all of which, taken together, constitute a
single instrument. This Agreement may be executed by facsimile signature or other similar
electronic means and all such signatures shall be effective as originals.
Section 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 permitted
pursuant to the Credit Agreement.
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Section 10. Invalidity. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of
this Agreement.
Section 11. Governing Law. This Agreement shall be deemed to be a contract
made under and shall be governed by and construed in accordance with the laws of the State of
Texas.
Section 12. Entire Agreement. THIS AGREEMENT, THE CREDIT AGREEMENT AS
AMENDED BY THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY
PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
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EXECUTED effective as of the date first above written.
BORROWER: | XXXX XXXX HOLDINGS, LP By: Xxxx Xxxx Holdings GP, LLC its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Name: | Xxxxxxx XxXxxx | |||
Title: | Chief Financial Officer | |||
GUARANTORS:
|
XXXX XXXX GP, LLC ARI DEVELOPMENT, LLC XXXX XXXX ACQUISITION SUB, LLC CAIRN ENERGY USA, LLC HILLTOP ACQUISITION LLC LOUISIANA ONSHORE PROPERTIES LLC THE MERIDIAN PRODUCTION, LLC THE MERIDIAN RESOURCE, LLC THE MERIDIAN RESOURCE & EXPLORATION LLC TMR DRILLING, LLC VIRGINIA OIL AND GAS, LLC XXXX XXXX HOLDINGS GP, LLC |
Each by: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer | ||||
ARANSAS RESOURCES, LP BUCKEYE PRODUCTION COMPANY, LP LOUISIANA EXPLORATION & ACQUISITIONS, LP NAVASOTA RESOURCES, LTD., LLP NUECES RESOURCES, LP OKLAHOMA ENERGY ACQUISITIONS, LP |
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TEXAS ENERGY ACQUISITIONS, LP | ||
GALVESTON BAY RESOURCES, XX | ||
XXXXX ACQUISITIONS, XX | ||
XXXXX OPERATING COMPANY, LP | ||
ORION OPERATING COMPANY, LP | ||
Each by: Xxxx Xxxx GP, LLC | ||
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer | ||||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
XXXXXXX RESOURCES, LP, By: Xxxxxxx Management GP, LLC, its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer |
XXXXXXX RESOURCES II, L.P., By: Xxxxxxx Management XX XX, LLC, its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer |
XXXX XXXX RESOURCES, LP, By: Xxxx Xxxx Resources GP, LLC, its sole general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx, | ||||
Chief Financial Officer |
PETRO ACQUISITIONS HOLDINGS, LP, By: Petro Acquisitions Holdings GP, LLC, its sole general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx, | ||||
Chief Financial Officer |
PETRO OPERATING COMPANY HOLDINGS, INC., |
||||
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer | ||||
GALVESTON BAY RESOURCES HOLDINGS, LP, By: Galveston Bay Resources Holdings GP, LLC its sole general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx, | ||||
Chief Financial Officer | ||||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
ADMINISTRATIVE AGENT/
ISSUING LENDER/
LENDER:
ISSUING LENDER/
LENDER:
XXXXX FARGO BANK, N.A. |
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By: | /s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx | ||||
Assistant Vice President | ||||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | UNION BANK, N.A. |
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | TORONTO DOMINION (NEW YORK) LLC |
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | ING CAPITAL LLC |
By: | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Managing Director | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | CITIBANK, N.A. |
By: | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | COMPASS BANK (as successor in interest to Guaranty Bank) |
By: | ||||
Name: | ||||
Title: | ||||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | CAPITAL ONE, N.A. |
By: | /s/ Xxxxx X. Xxx | |||
Name: | Xxxxx X. Xxx | |||
Title: | Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | BANK OF TEXAS, NA |
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | AMEGY BANK NATIONAL ASSOCIATION |
By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)
LENDER: | TEXAS CAPITAL BANK, N.A. |
By: | /s/ W. Xxxxx XxXxxxxx XX | |||
Name: | W. Xxxxx XxXxxxxx XX | |||
Title: | Vice President | |||
Signature Page to Amendment No. 1
(Xxxx Xxxx Holding, LP)
(Xxxx Xxxx Holding, LP)