AGREEMENT AND AMENDMENT NO. 2
Exhibit 10.3
AGREEMENT AND AMENDMENT NO. 2
This AGREEMENT AND AMENDMENT NO. 2 (“Agreement”) dated effective as of December 6, 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 among the Borrower, the lenders party thereto from time to time (the “Lenders”),
the Administrative Agent, and the Issuing Lender, as amended by that certain Amendment No. 1 dated
as of September 2, 2010 among the Borrower, the Guarantors, the Lenders, the Administrative Agent
and the Issuing Lender (as so amended, the “Credit Agreement”).
B. The parties hereto wish to, subject to the terms and conditions of this Agreement, (i)
redetermine the Borrowing Base (as defined in the Credit Agreement) and (ii) make certain other
amendments to 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. Agreement — Borrowing Base. Subject to the terms of this
Agreement, as of the Effective Date, the Borrowing Base shall be $220,000,000. Such Borrowing Base
shall remain in effect at such level until the Borrowing Base is redetermined in accordance with
Section 2.02 of the Credit Agreement, as amended hereby. The Borrower and the Lenders hereby
acknowledge and agree that the redetermination of the Borrowing Base set forth in this Section 2 is
the scheduled semi-annual redetermination of the Borrowing Base scheduled for Fall, 2010 under
Section 2.02 of the Credit Agreement.
Section 3. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by adding the following
new defined term in alphabetical order:
"Anticipated Production” means the anticipated production of oil or gas
volumes, as applicable, which are attributable to the Borrower’s and its Restricted
Subsidiaries’
Proven Reserves, as reflected in the most recently delivered Engineering Report
delivered pursuant to Section 2.02(b) and calculated on an aggregate basis for the
Borrower and its Restricted Subsidiaries’, taken as a whole.
(b) Clause (c) of Section 6.14 (Limitation on Hedging) of the Credit Agreement is
hereby amended by (i) replacing the term “PDP Reserves” found in the introductory paragraph therein
with the term “Proven Reserves”, and (ii) deleting clause (c)(i) in its entirety and replacing it
with the following:
"(i) other than as provided in the immediately following clause (ii) and clause (iii),
before and after giving effect to such Hydrocarbon Hedge Contract, no more than 85% of the
Anticipated Production of gas volumes and no more than 85% of the Anticipated Production of
oil volumes may be covered by Hydrocarbon Hedge Contracts; provided that (A) with
respect to the Hydrocarbon Hedge Contracts covering the Anticipated Production projected
through December 31, 2014, no more than 25% of the gas volumes covered by such Hydrocarbon
Hedge Contracts and no more than 25% of the oil volumes covered by such Hydrocarbon Hedge
Contracts may be attributable to PDNP Reserves and PUD Reserves, (B) with respect to the
Hydrocarbon Hedge Contracts covering the Anticipated Production projected for the period
from January 1, 2015 through December 31, 2015, no more than 15% of the gas volumes covered
by such Hydrocarbon Hedge Contracts and no more than 15% of the oil volumes covered by such
Hydrocarbon Hedge Contracts may be attributable to PDNP Reserves and PUD Reserves, and (C)
with respect to the Hydrocarbon Hedge Contracts covering Anticipated Production projected
after December 31, 2015, such Hydrocarbon Hedge Contracts may not cover any gas or oil
volumes attributable to PDNP Reserves and PUD Reserves;”
(c) Section 6.02 (Debts, Guaranties, and Other Obligations) of the Credit Agreement
is hereby amended by (i) replacing the amount “$3,000,000” found in clause (f) therein with the
amount “$8,000,000", (ii) replacing the term “clause (m)” found in clause (f) therein with “clause
(n)”, and (iii) replacing the amount “$3,000,000” found in clause (n) therein with the amount
"$8,000,000".
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 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.
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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.
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
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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.
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 |
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By: | Xxxx Xxxx Holdings GP, LLC its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Name: | Xxxxxxx XxXxxx | |||
Title: | Chief Financial Officer | |||
GUARANTORS: | XXXX XXXX FINANCE SERVICES CORP. XXXX XXXX GP, LLC ARI DEVELOPMENT, LLC XXXX XXXX ACQUISITION SUB, LLC XXXXXXX MANAGEMENT GP, LLC XXXXXXX MANAGEMENT XX XX, LLC CAIRN ENERGY USA, 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 |
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Each by: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer | ||||
XXXX XXXX SERVICES, LP ARANSAS RESOURCES, LP BUCKEYE PRODUCTION COMPANY, LP LOUISIANA EXPLORATION & ACQUISITIONS, LP NAVASOTA RESOURCES, LTD., LLP NUECES RESOURCES, LP OKLAHOMA ENERGY ACQUISITIONS, LP 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 Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
XXXXXXX RESOURCES, LP, |
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By: | Xxxxxxx Management GP, LLC, its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer | ||||
XXXXXXX RESOURCES II, L.P., |
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By: | Xxxxxxx Management XX XX, LLC, its general partner |
By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer |
XXXX XXXX RESOURCES, LP, |
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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, |
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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., |
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By: | /s/ Xxxxxxx X. XxXxxx | |||
Xxxxxxx X. XxXxxx | ||||
Chief Financial Officer |
GALVESTON BAY RESOURCES HOLDINGS, LP, |
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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 Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
ADMINISTRATIVE AGENT/ ISSUING LENDER/ LENDER: |
XXXXX FARGO BANK, N.A. |
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By: | /s/ Xxxxxx Xxxxxx | |||
Xxxxxx Xxxxxx | ||||
Assistant Vice President | ||||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | UNION BANK, N.A. |
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By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | TORONTO DOMINION (NEW YORK) LLC |
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By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Authorized Signatory | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | ING CAPITAL LLC |
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By: | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | Managing Director | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | CITIBANK, N.A. |
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By: | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | CAPITAL ONE, N.A. |
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By: | /s/ Xxxxx X. Xxx | |||
Name: | Xxxxx X. Xxx | |||
Title: | Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | BANK OF TEXAS, NA |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | AMEGY BANK NATIONAL ASSOCIATION |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)
LENDER: | TEXAS CAPITAL BANK, N.A. |
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By: | /s/ W. Xxxxx XxXxxxxx XX | |||
Name: | W. Xxxxx XxXxxxxx XX | |||
Title: | Vice President | |||
Signature Page to Agreement and Amendment No. 2
(Xxxx Xxxx Holdings, LP)
(Xxxx Xxxx Holdings, LP)