Second Amendment to Credit Agreement dated as of August 19, 2014 among
Execution Version
Second Amendment to Credit Agreement
dated as of August 19, 2014
among
▇▇▇▇▇▇ Energy Resources, Inc.,
as Borrower,
KeyBank National Association,
as Administrative Agent,
and
the Lenders Party Hereto
KeyBank National Association
Lead Arranger and Book Runner
Second Amendment to Credit Agreement
This Second Amendment to Credit Agreement (this “Amendment”) dated as of August 19, 2014, is among ▇▇▇▇▇▇ ENERGY RESOURCES, INC., a corporation duly formed and existing under the laws of the State of Tennessee, each of the Lenders party hereto, and KEYBANK NATIONAL ASSOCIATION, as Administrative Agent.
R E C I T A L S
A. The Borrower, the Administrative Agent and the Lenders are parties to that certain Credit Agreement dated as of June 2, 2014 (amended by that certain First Amendment to Credit Agreement dated as of August 11, 2014 and as otherwise amended, restated, supplemented or modified from time to time, 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 that the Administrative Agent and each of the Lenders amend, and the Administrative Agent and each of the Lenders have agreed to amend, certain provisions of the Credit Agreement as herein set forth.
C. Now, therefore, to induce the Administrative Agent and the Lenders to enter into this 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 Amendment. Unless otherwise indicated, all section references in this Amendment refer to sections of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.2 Amendments to Section 1.02 of the Credit Agreement. Section 1.02 of the Credit Agreement is hereby amended as follows:
(a) The definition of “Agreement” is hereby restated in its entirety to read as follows:
“Agreement” means this Credit Agreement, as amended by that certain First Amendment to Credit Agreement dated as of August 11, 2014, as further amended by that certain Second Amendment to Credit Agreement dated as of August 19, 2014, and as the same may be further amended, restated, supplemented, or modified from time to time.
(b) A new definition of “Second Amendment Effective Date” is hereby added in appropriate alphabetical order to read as follows:
“Second Amendment Effective Date” means August 19, 2014.
2.3 Amendment to Section 9.02 of the Credit Agreement. The reference to “$5,000,000” in Section 9.02(c) of the Credit Agreement is hereby amended to read “$15,000,000”.
2.4 Amendment to Section 9.05 of the Credit Agreement. Section 9.05 of the Credit Agreement is hereby amended by restating subsection (q) in its entirety and adding a new subsection (r), in each case to read as follows:
(q) Investments in Savant Alaska, LLC made after the Second Amendment Effective Date but prior to the date (if any) that Savant Alaska, LLC becomes a Guarantor, in an amount not to exceed the lesser of (i) the amount of net cash proceeds received by the Borrower from the issuance of Equity Interests (to the extent such issuance is permitted by this Agreement) after the Second Amendment Effective Date and (ii) the difference of (A) $15,000,000 minus (B) the aggregate amount of any Investments permitted and actually made by the Borrower or any Guarantor pursuant to Section 9.05(r).
(r) other Investments in an aggregate amount at any time outstanding not to exceed the difference of (i) $4,000,000 minus (ii) the amount by which any Investments permitted and actually made by the Borrower or any Guarantor pursuant to Section 9.05(q) exceeds $11,000,000.
2.5 Amendment to Section 9.11 of the Credit Agreement. Section 9.11 of the Credit Agreement is hereby amended by re-lettering the existing subsections (b) and (c) as subsections (c) and (d), respectively and inserting a new clause (b) immediately after clause (a), such new clause (b) to read as follows:
(b) at any time that ▇▇▇▇▇▇ 2009 Partnership has no limited partners, no assets and no liabilities, ▇▇▇▇▇▇ 2009 Partnership may liquidate or dissolve or otherwise consolidate into the Borrower;
2.6 Amendment to Section 9.20 of the Credit Agreement. Section 9.20(c) of the Credit Agreement is hereby amended as follows:
(a) The reference to “par value” in subsection (c)(i) of Section 9.20 is hereby amended to read “stated liquidation preference”.
(b) The reference to “$15,000,000” in subsection (c)(i) of Section 9.20 is hereby amended to read “$25,000,000”.
Section 3. Conditions Precedent. This Amendment shall become effective on the date (such date, the “Second Amendment Effective Date”), when each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement):
(a) The Administrative Agent shall have received from the Majority Lenders, the Administrative Agent, the Borrower and each Guarantor, counterparts (in such number as may be reasonably requested by the Administrative Agent) of this Amendment signed on behalf of such Person.
(b) The Administrative Agent shall be reasonably satisfied that, substantially contemporaneously with the effectiveness of this Amendment, the terms of the Second Lien Term Loan Agreement will be amended in form and substance consistent with this Amendment and otherwise reasonably acceptable to the Administrative Agent.
(c) No Default shall have occurred and be continuing as of the date hereof, after giving effect to the terms of this Amendment.
(d) The Borrower shall have paid all costs, fees, expenses and other amounts due and payable prior to the Second Amendment Effective Date, including (a) an amendment fee payable to the Administrative Agent, for the account of each Lender party to this Amendment, in the amount of $10,000.00 for each such Lender and (b) to the extent invoiced, all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
Section 4. Miscellaneous.
4.1 Confirmation. The provisions of the Credit Agreement, as amended by this Amendment, remain in full force and effect following the effectiveness of this Amendment.
4.2 Ratification and Affirmation; Representations and Warranties. Each of the Borrower and each Guarantor hereby:
(a) acknowledges the terms of this Amendment,
(b) ratifies and affirms their respective obligations, and acknowledges their respective continued liability, under each Loan Document to which it is a party (including with respect to all of the Liens securing the payment and performance of the Secured Obligations) and agrees that each Loan Document to which it is a party remains in full force and effect as expressly amended hereby,
(c) represents and warrants to the Lenders that the resolutions and governing documents certified to the Administrative Agent and the Lenders by such Loan Party on the date of the Credit Agreement remain in full force and effect and have not been amended or otherwise modified, and
(d) represents and warrants to the Lenders that as of the date hereof, immediately after giving effect to the terms of this Amendment, (i) the representations and warranties of the Borrower and the Guarantors set forth in the Credit Agreement, as amended hereby, and in the other Loan Documents are true and correct in all material respects (unless such representation and warranty is already qualified by materiality, in which case such representation or warranty is simply true and correct) on and as of the date hereof, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date hereof, such representations and warranties continue to be true and correct as aforesaid as of such specified earlier date, (ii) no Default or Event of Default has occurred and is continuing, and (iii) no event, development or circumstance has occurred or exists that has resulted in, or could reasonably be expected to have, a Material Adverse Effect.
4.3 Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission or other electronic transmission (e.g., .pdf) shall be effective as delivery of a manually executed counterpart hereof.
4.4 NO ORAL AGREEMENT. THIS 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.
4.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 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 Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees, charges and disbursements of counsel.
4.7 Severability. Any provision of this 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.
4.8 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties to the Credit Agreement and their respective successors and permitted assigns.
4.9 Loan Document. This Amendment is a Loan Document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.
BORROWER: ▇▇▇▇▇▇ ENERGY RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
GUARANTORS: ▇▇▇▇▇▇ DRILLING, TN LLC
By: ▇▇▇▇▇▇ ENERGY RESOURCES, INC.,
its Sole Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇▇▇ ENERGY SERVICES, LLC
By: ▇▇▇▇▇▇ ENERGY RESOURCES, INC.,
its Sole Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇▇▇ ENERGY GP, LLC
By: ▇▇▇▇▇▇ ENERGY RESOURCES, INC.,
its Sole Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇▇▇ RIG & EQUIPMENT, LLC
By: ▇▇▇▇▇▇ ENERGY RESOURCES, INC.,
its Sole Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
▇▇▇▇ INLET ENERGY, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
Manager and Chief Executive Officer
EAST TENNESSEE CONSULTANTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
EAST TENNESSEE CONSULTANTS II, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
KEYBANK NATIONAL ASSOCIATION, as Administrative Agent, as Issuing Bank and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CIT FINANCE LLC, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
MUTUAL OF OMAHA BANK, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Market President - Houston
ONEWEST BANK N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President