FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Dated as of September 30, 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...
Execution
Version
FIFTH
AMENDMENT
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
Dated
as of September 30, 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
FIFTH
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT (this “Fifth Amendment”)
dated as of September 30, 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, 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
Fifth 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 Fifth Amendment. Unless otherwise indicated, all
section references in this Fifth 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 and the Fifth
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:
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“Fifth Amendment”
means that certain Fifth Amendment to Amended and Restated Credit Agreement,
dated as of September 30, 2010, among the Parent, the Borrower, the Guarantors,
the Administrative Agent and the Lenders party thereto.
“Fifth Amendment Effective
Date” means September 30, 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, (i) during the period between the Fifth Amendment
Effective Date and the first Scheduled Redetermination Date thereafter, if the
Borrower issues Senior Debt in excess of $200,000,000 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 in excess of $200,000,000, and (ii) from and after the first Scheduled
Redetermination Date following the Fifth Amendment Effective Date, 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.
Section
3. Borrowing
Base. For the period from and including Fifth Amendment
Effective Date until the next Redetermination Date, the Borrowing Base is
$465,000,000. 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. Conditions
Precedent. This Fifth 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):
4.1 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 Fifth Amendment signed on behalf of such
Person.
4.2 The
Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on or prior to the date hereof.
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4.3 No
Default shall have occurred and be continuing as of the date hereof, after
giving effect to the terms of this Fifth Amendment.
The
Administrative Agent is hereby authorized and directed to declare this Fifth
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.
Section
5. Miscellaneous.
5.1 Confirmation. The
provisions of the Credit Agreement, as amended by this Fifth Amendment, shall
remain in full force and effect following the effectiveness of this Fifth
Amendment.
5.2 Ratification and
Affirmation; Representations and Warranties. Each Obligor
hereby (a) acknowledges the terms of this Fifth 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 Fifth 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.
5.3 Counterparts. This
Fifth 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 Fifth Amendment by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
5.4
NO ORAL
AGREEMENT. THIS FIFTH 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.
5.5 GOVERNING
LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
5.6 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 Fifth 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.
3
5.7 Severability. Any
provision of this Fifth 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.
5.8 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
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IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly
executed as of the date first written above.
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BORROWER:
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EV
PROPERTIES, L.P.
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By:
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EV
Properties GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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PARENT AND
GUARANTOR:
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EV
ENERGY PARTNERS, L.P.
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By:
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EV
Energy GP, L.P., its general partner
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By:
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EV
Management, L.L.C., its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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OTHER
GUARANTORS:
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EV
PROPERTIES GP, LLC
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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ENERVEST PRODUCTION PARTNERS,
LTD.
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By:
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EVPP
GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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[Signature
Page to Fifth Amendment]
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CGAS
PROPERTIES, L.P.
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By:
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EVCG
GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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ENERVEST-CARGAS,
LTD.
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By:
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EVPP
GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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LOWER
CARGAS
OPERATING COMPANY
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LLC
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By:
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Enervest-Cargas,
Ltd., its sole member
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By:
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EVPP
GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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EVPP GP,
LLC
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EVCG
GP, LLC
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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[Signature
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ENERVEST
MONROE MARKETING, LTD.
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ENERVEST
MONROE GATHERING, LTD.
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By:
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EVPP
GP, LLC, its general partner
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Senior Vice President
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and
Chief Financial Officer
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[Signature
Page to Fifth Amendment]
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JPMORGAN CHASE BANK, N.A.,
as
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Administrative
Agent and as a Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Vice President
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[Signature
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BNP PARIBAS, as a
Lender
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Director
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Director
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COMPASS BANK, as
a
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Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Title: Vice President
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THE BANK OF NOVA SCOTIA,
as a
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Lender
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By:
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/s/ ▇. ▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇
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Title: Director
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▇▇▇▇▇ FARGO BANK, N.A.,
as a
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Lender
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Managing Director
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[Signature
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ROYAL BANK OF CANADA, as
a
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Lender
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Authorized
Signatory
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ING CAPITAL LLC, as a
Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Managing
Director
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UNION BANK, N.A.,
(formerly known as Union Bank of California N.A.)
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as
a Lender
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
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Title: Assistant Vice President
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U.S.
BANK NATIONAL
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ASSOCIATION,
as a Lender
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior
Vice President
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COMERICA BANK, as a
Lender
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Title: Vice
President
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[Signature
Page to Fifth Amendment]
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THE FROST NATIONAL BANK, as
a
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Lender
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By:
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/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior
Vice President
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AMEGY
BANK NATIONAL
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ASSOCIATION, as a
Lender
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
III
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
III
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Title: Vice President
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CITIBANK, N.A., as a
Lender
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH (f/k/a CREDIT SUISSE, Cayman Islands
Branch), as a Lender
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇
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Title: Vice President
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇
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Title: Associate
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[Signature
Page to Fifth Amendment]
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