Attached files
| file | filename |
|---|---|
| 8-K - 8-K - Harvest Oil & Gas Corp. | v206381_8k.htm |
| EX-10.2 - EX-10.2 - Harvest Oil & Gas Corp. | v206381_ex10-2.htm |
SIXTH
AMENDMENT
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated
as of December 17, 2010
among
EV
ENERGY PARTNERS, L.P.,
As
Parent,
EV
PROPERTIES, L.P.,
as
Borrower,
THE
GUARANTORS,
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent,
and
THE
LENDERS PARTY HERETO
SIXTH
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “Sixth Amendment”)
dated as of December 17, 2010, is among EV ENERGY PARTNERS, L.P., a
Delaware limited partnership (the “Parent”); EV
PROPERTIES, L.P., a Delaware limited partnership (the “Borrower”); the
undersigned guarantors (the “Guarantors”, and
together with the Parent and the Borrower, the “Obligors”); each of
the lenders party to the Credit Agreement referred to below (collectively, the
“Lenders”); and
JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the “Administrative
Agent”).
RECITALS
A. The
Borrower, the Parent, the Agents and the Lenders are parties to that certain
Amended and Restated Credit Agreement dated as of October 1, 2007 (as amended by
the First Amendment dated August 28, 2008, the Second Amendment dated September
4, 2008, the Third Amendment dated April 10, 2009, the Fourth Amendment dated
April 26, 2010, the Fifth Amendment dated September 30, 2010, and as further
amended, modified, restated or supplemented, the “Credit Agreement”),
pursuant to which the Lenders have made certain credit available to and on
behalf of the Borrower.
B. The
Borrower has requested and the Administrative Agent and the Lenders have agreed
to amend certain provisions of the Credit Agreement.
C. NOW,
THEREFORE, to induce the Administrative Agent and the Lenders to enter into this
Sixth Amendment and in consideration of the premises and the mutual covenants
herein contained, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1. 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 Sixth Amendment. Unless otherwise indicated, all
section references in this Sixth Amendment refer to sections of the Credit
Agreement.
Section
2. Amendments to Credit
Agreement.
2.1 Amendments to Section
1.02.
(a) The
following definition is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“Agreement” means this
Amended and Restated Credit Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment
and the Sixth Amendment, including the Schedules and Exhibits hereto, as the
same may be amended or supplemented from time to time.
(b) The
following definition is hereby added where alphabetically appropriate to read as
follows:
1
“Sixth Amendment”
means that certain Sixth Amendment to Amended and Restated Credit Agreement,
dated as of December 17, 2010, among the Parent, the Borrower, the Guarantors,
the Administrative Agent and the Lenders party thereto.
“Sixth Amendment Effective
Date” means December 17, 2010.
“Talon Acquisition”
means the acquisition of certain oil, gas and mineral properties, rights and
related assets pursuant to the terms and conditions of the Talon Acquisition
Documents.
“Talon Acquisition
Agreement” means the Purchase and Sale Agreement among Talon Oil &
Gas LLC, as seller, and Enervest Energy Institutional Fund XI-A, L.P., Enervest
Energy Institutional Fund XI-WI, L.P., Enervest Energy Institutional Fund XII-A,
L.P., Enervest Energy Institutional Fund XII-WIB, L.P. and the Borrower,
collectively as buyer, executed on October 25, 2010 and effective as of October
1, 2010.
“Talon Acquisition
Documents” means (a) Talon Acquisition Agreement and (b) all bills of
sale, assignments, and conveyance instruments executed and delivered in
connection therewith, as amended.
“Talon Acquisition
Properties” means the Oil and Gas Properties and other properties
acquired by Enervest Energy Institutional Fund XI-A, L.P., Enervest Energy
Institutional Fund XI-WI, L.P., Enervest Energy Institutional Fund XII-A, L.P.,
Enervest Energy Institutional Fund XII-WIB, L.P. and the Borrower pursuant to
the Talon Acquisition Documents.
“Talon
Reserve
Report” means the report of the Borrower, dated as of November 18, 2010,
with respect to the Talon Acquisition Properties as of October 1,
2010.
2.2 Amendment to Section
2.07(e). Section 2.07(e) is hereby amended by to
read:
(e) Reduction of Borrowing Base
Upon Issuance of Senior Debt. Notwithstanding anything to the
contrary contained herein, if the Borrower issues any Senior Debt between
Scheduled Redetermination Dates other than in conjunction with an Interim
Redetermination, then on the date on which such Senior Debt is issued, the
Borrowing Base- then in effect shall be reduced by an amount equal to the
product of 0.30 multiplied by the stated principal amount of such Senior
Debt. 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
Section
3. Borrowing
Base. Subject to Section 5 of this Sixth Amendment, for the
period from and including Sixth Amendment Effective Date until the next
Redetermination Date, the Borrowing Base is
$700,000,000. Notwithstanding the foregoing, the Borrowing Base may
be subject to further adjustments from time to time pursuant to Section 2.07(e),
Section 8.13(c), Section 9.12 or Section 9.18.
Section
4. Assignment, New Lender and
Reallocation of Commitments and Loans. Immediately prior to
the Sixth Amendment Effective Date, Wachovia Bank, National Association, a
Lender party to the Credit Agreement (the “Adjusting Lender”)
has, in consultation with the Borrower, agreed to reallocate its respective
Maximum Credit Amount and Commitment and to, among other things, allow Credit
Agricole Corporate & Investment Bank to become a party to the Credit
Agreement as a Lender, (the “New Lender”) by
acquiring an interest in the total Maximum Credit Amounts and
Commitments. The Administrative Agent and the Borrower hereby consent
to such reallocation and the New Lender’s acquisition of an interest in the
Maximum Credit Amounts and Commitments and the Adjusting Lender’s assignments of
their Commitments. On the Sixth Amendment Effective Date and after
giving effect to such reallocations, the Maximum Credit Amounts and Commitment
of each Lender (including both the Adjusting Lender and the New Lender) shall be
as set forth on Annex I of this Sixth Amendment which Annex I supersedes and
replaces the Annex I to the Credit Agreement. With respect to such
reallocation, the New Lender shall be deemed to have acquired the Maximum Credit
Amount and Commitment allocated to it from the Adjusting Lender pursuant to the
terms of the Assignment and Assumption Agreement attached as Exhibit D to the
Credit Agreement (the “Assignment
Agreement”). On the Sixth Amendment Effective Date, the New
Lender and the Adjusting Lender shall be deemed to have entered into separate
Assignment Agreements pursuant to each of which (i) the New Lender shall be the
“Assignee”, (ii) the Adjusting Lender shall be the “Assignor” and (iii) the term
“Effective Date” shall be the “Sixth Amendment Effective Date” as defined
herein. Notwithstanding Section 12.04(b)(ii)(C), the Lenders deemed
to be parties to such Assignment Agreements shall not be required to pay a
processing and recordation fee of $3,500 to the Administrative
Agent. On the Sixth Amendment Effective Date, the Administrative
Agent shall take the actions specified in Section 12.04(b)(v), including
recording the assignments described herein in the Register, and such assignments
shall be effective for purposes of the Credit Agreement.
Section
5. Conditions
Precedent. This Sixth Amendment shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 12.02 of the Credit Agreement):
5.1 The
Administrative Agent shall have received from each Lender, the Parent, the
Borrower and the Guarantors, counterparts (in such number as may be requested by
the Administrative Agent) of this Sixth Amendment signed on behalf of such
Person.
5.2 The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on or prior to the date hereof.
5.3 No
Default shall have occurred and be continuing as of the date hereof, after
giving effect to the terms of this Sixth Amendment.
3
5.4 The
Administrative Agent shall have received (a) a certificate of a Responsible
Officer of the Borrower certifying: (i) that the Borrower is
concurrently consummating the Talon Acquisition in accordance with the terms of
the Talon Acquisition Documents (with all of the material conditions precedent
thereto having been satisfied in all material respects by the parties thereto)
and acquiring substantially all of the Talon Acquisition Properties contemplated
by the Talon Acquisition Documents, (ii) as to the final purchase price for the
Talon Acquisition Properties after giving effect to all adjustments as of the
closing date contemplated by the Talon Acquisition Documents and specifying, by
category, the amount of such adjustment, (iii) that attached thereto is a true
and complete list of the Talon Acquisition Properties which have been excluded
from the Talon Acquisition pursuant to the terms of the Talon Acquisition
Documents, specifying with respect thereto the basis of exclusion as (1) title
defect, (2) casualty or condemnation loss or (3) required consent or
preferential purchase right, (iv) that attached thereto is a true and complete
list of all Talon Acquisition Properties for which any seller has elected to
cure a title defect or deficiency, (v) that attached thereto is a true and
complete list of all Talon Acquisition Properties which are currently pending
final decision by a third party regarding purchase of such property in
accordance with any consent or preferential purchase rights and (vi) that no
party to any Talon Acquisition Document is in default in respect of any material
term or obligation thereunder; (b) a true and complete executed copy of each of
the material Talon Acquisition Documents; (c) original counterparts or copies,
certified as true and complete, of the assignments for all of the Talon
Acquisition Properties; (d) the preliminary settlement statement; and (e) such
other related documents and information as the Administrative Agent shall have
reasonably requested.
The
Borrower recognizes and agrees that (a) it shall have delivered to the
Administrative Agent a preliminary draft of the certificate described herein not
less than three (3) days prior to the Effective Date identifying which Talon
Acquisition Properties will be excluded from the Talon Acquisition on the
Effective Date, and (b) if the aggregate value as reflected in the Talon Reserve
Report of the Talon Acquisition Properties excluded under clause (a)(iii) above
is greater than or equal to $25,000,000, the Borrowing Base shall be adjusted
downward to reflect such exclusions by an amount to be determined in good faith
by the Administrative Agent. The Administrative Agent shall allocate
a Borrowing Base value for each such excluded Property and shall, promptly upon
making such allocation, notify the Borrower and each Lender of such
allocation. If the aggregate value as reflected in the Talon Reserve
Report of Talon Acquisition Properties excluded under clause (a)(iii) above is
less than or equal to $25,000,000, the Borrowing Base will not be
adjusted. Promptly upon the making by the Required Lenders of such
allocation, the Administrative Agent shall notify the Borrower and each Lender
of such allocation.
5.5 The
Administrative Agent shall be reasonably satisfied that the Security Instruments
create first priority, perfected Liens on at least 80% of the total value of the
Talon Acquisition Properties owned by Borrower evaluated in the Talon Reserve
Report.
The
Administrative Agent is hereby authorized and directed to declare this Sixth
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 5 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.
4
Section
6. Miscellaneous.
6.1 Confirmation. The
provisions of the Credit Agreement, as amended by this Sixth Amendment, shall
remain in full force and effect following the effectiveness of this Sixth
Amendment.
6.2 Ratification and
Affirmation; Representations and Warranties. Each Obligor
hereby (a) acknowledges the terms of this Sixth Amendment; (b) ratifies and
affirms its obligations under, and acknowledges, renews and extends 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,
except as expressly amended hereby, notwithstanding the amendments contained
herein and (c) represents and warrants to the Lenders that as of the date
hereof, after giving effect to the terms of this Sixth 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.
6.3 Counterparts. This
Sixth 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 Sixth Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
6.4
NO ORAL
AGREEMENT. THIS SIXTH 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 UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES.
6.5 GOVERNING
LAW. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
6.6 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 Sixth 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.
6.7 Severability. Any
provision of this Sixth 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
6.8 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
[SIGNATURES
BEGIN NEXT PAGE]
6
IN
WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to be duly
executed as of the date first written above.
|
BORROWER:
|
EV
PROPERTIES, L.P.
|
|
|
By:
EV Properties GP, LLC, its general partner
|
||
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
PARENT AND
GUARANTOR:
|
EV
ENERGY PARTNERS, L.P.
|
|
|
By:
EV Energy GP, L.P., its general partner
|
||
|
By:
EV Management, L.L.C., its general partner
|
||
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
OTHER
GUARANTORS:
|
EV
PROPERTIES GP, LLC.
|
|
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
ENERVEST
PRODUCTION PARTNERS, LTD.
|
||
|
By:
EVPP GP, LLC, its general partner
|
||
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
[Signature
Page to Sixth Amendment]
S-1
|
CGAS
PROPERTIES, L.P.
|
||
|
By:
|
EVCG
GP, LLC, its general partner
|
|
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
ENERVEST-CARGAS,
LTD.
|
||
|
By:
|
EVPP
GP, LLC, its general partner
|
|
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
LOWER
CARGAS OPERATING COMPANY
|
||
|
LLC
|
||
|
By:
|
Enervest-Cargas,
Ltd., its sole member
|
|
|
By:
|
EVPP
GP, LLC, its general partner
|
|
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
EVPP
GP, LLC
|
||
|
EVCG
GP, LLC
|
||
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
|
ENERVEST
MONROE MARKETING, LTD.
|
||
|
ENERVEST
MONROE GATHERING, LTD.
|
||
|
By:
|
EVPP
GP, LLC, its general partner
|
|
|
By:
|
/s/ Michael E. Mercer
|
|
|
Michael
E. Mercer
|
||
|
Senior
Vice President and
|
||
|
Chief
Financial Officer
|
||
[Signature
Page to Sixth Amendment]
S-2
|
JPMORGAN CHASE BANK,
N.A., as
|
||
|
Administrative
Agent and as Lender
|
||
|
By:
|
/s/ Michael A. Kamauf
|
|
|
Name:
|
Michael
Kamauf
|
|
|
Title:
|
Authorized
Officer
|
|
[Signature
Page to Sixth Amendment]
S-3
|
BNP PARIBAS, as a
Lender
|
||
|
By:
|
/s/ Polly Schott
|
|
|
Name:
|
Polly
Schott
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Juan Carlos Sandoval
|
|
|
Name:
|
Juan
Carlos Sandoval
|
|
|
Title:
|
Vice
President
|
|
|
COMPASS BANK, as a
Lender
|
||
|
By:
|
/s/ Spencer Stasney
|
|
|
Name:
|
Spencer
Stasney
|
|
|
Title:
|
Vice
President
|
|
|
THE BANK OF NOVA SCOTIA,
as a Lender
|
||
|
By:
|
/s/ Gregory E. George
|
|
|
Name:
|
Gregory
E. George
|
|
|
Title:
|
Managing
Director
|
|
|
WELLS FARGO BANK, N.A.,
as a Lender
|
||
|
By:
|
/s/ Shiloh Davila
|
|
|
Name:
|
Shiloh
Davila
|
|
|
Title:
|
Assistant
Vice President
|
|
[Signature
Page to Sixth Amendment]
S-4
|
ROYAL BANK OF CANADA, as
a Lender
|
||
|
By:
|
/s/ Jason S. York
|
|
|
Name:
|
Jason
S. York
|
|
|
Title:
|
Authorized
Signatory
|
|
|
ING CAPITAL LLC, as a
Lender
|
||
|
By:
|
/s/ Charles Hall
|
|
|
Name:
|
Charles
Hall
|
|
|
Title:
|
Managing
Director
|
|
|
UNION
BANK OF CALIFORNIA N.A.,
|
||
|
as
a Lender
|
||
|
By:
|
/s/ Paul E. Cornell
|
|
|
Name:
|
Paul
E. Cornell
|
|
|
Title:
|
Senior
Vice President
|
|
|
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
|
||
|
By:
|
/s/ Justin M. Alexander
|
|
|
Name:
|
Justin
M. Alexander
|
|
|
Title:
|
Vice
President
|
|
|
COMERICA BANK, as a
Lender
|
||
|
By:
|
/s/ Justin Crawford
|
|
|
Name:
|
Justin
Crawford
|
|
|
Title:
|
Vice
President
|
|
[Signature
Page to Sixth Amendment]
S-5
|
THE FROST NATIONAL BANK,
as a Lender
|
||
|
By:
|
/s/ Andrew A. Merryman
|
|
|
Name:
|
Andrew
A. Merryman
|
|
|
Title:
|
Sr.
Vice President
|
|
|
AMEGY
BANK NATIONAL
|
||
|
ASSOCIATION, as a
Lender
|
||
|
By:
|
/s/ Charles W. Patterson
|
|
|
Name:
|
Charles
W. Patterson
|
|
|
Title:
|
Senior
Vice President
|
|
|
CITIBANK, N.A., as a
Lender
|
||
|
By:
|
/s/ Stephen
Oglesby
|
|
|
Name:
|
Stephen
Oglesby
|
|
|
Title:
|
Region
Manager
|
|
|
CREDIT
SUISSE AG, CAYMAN
|
||
|
ISLANDS BRANCH as a
Lender
|
||
|
By:
|
/s/ Shaheen Malik
|
|
|
Name:
|
Shaheen
Malik
|
|
|
Title:
|
Vice
President
|
|
|
By:
|
/s/ Christopher Reo Day
|
|
|
Name:
|
Christopher
Reo Day
|
|
|
Title:
|
Associate
|
|
[Signature
Page to Sixth Amendment]
S-6
|
CREDIT
AGRICOLE CORPORATE &
INVESTMENT BANK, as a
Lender
|
||
|
By:
|
/s/ Michael D. Willis
|
|
|
Name:
|
Michael
D. Willis
|
|
|
Title:
|
Managing
Director
|
|
|
By:
|
/s/ Mark A. Roche
|
|
|
Name:
|
Mark
A. Roche
|
|
|
Title:
|
Managing
Director
|
|
[Signature
Page to Sixth Amendment]
S-7