THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND LIMITED WAIVER
Exhibit 10.1
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND LIMITED WAIVER
AND LIMITED WAIVER
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND LIMITED WAIVER (this
“Amendment”) dated as of June 16, 2010, is by and among Concho Resources Inc., a Delaware
corporation (the “Borrower”), the Lenders party hereto (the “Lenders”) and JPMorgan
Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).
Unless the context otherwise requires or unless otherwise expressly defined herein, capitalized
terms used but not defined in this Amendment have the meanings assigned to such terms in the Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent and the Lenders entered into that certain
Amended and Restated Credit Agreement dated as of July 31, 2008 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower informed the Administrative Agent by letter dated June 11, 2010 that
Events of Default have occurred and are continuing under Section 8.01(b) of the Credit
Agreement as a result of the entry by one or more Loan Parties into certain lease agreements
containing provisions prohibiting such Loan Parties from granting Liens on such lease agreements
and the properties subject thereto (as more fully described on Exhibit A hereto, the
“Subject Properties”) in violation of Section 7.09(a)(iii) of the Credit Agreement
(the “Specified Events of Default”);
WHEREAS, the Borrower has requested that the Administrative Agent and the Majority Lenders (a)
amend the Credit Agreement in certain respects and (b) waive the Specified Events of Default; and
WHEREAS, the Administrative Agent and the Majority Lenders have agreed, subject to the terms
and conditions hereinafter set forth, to (a) amend the Credit Agreement as provided herein and (b)
waive the Specified Events of Default.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, the Borrower, the Administrative Agent and the Majority Lenders,
hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. Subject to the satisfaction or waiver in writing of
each condition precedent set forth in Section 4, and in reliance on the representations,
warranties, covenants and agreements contained in this Amendment, the Credit Agreement shall be
amended in the manner provided in this Section 1.
1.1 Burdensome Agreements. Section 7.09 of the Credit Agreement shall be and it
hereby is amended in its entirety to read as follows:
Third Amendment to Amended and Restated Credit Agreement and Limited Waiver — Page 1
7.09 Burdensome Agreements. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that, whether expressly or in
effect, (a) limits the ability (i) of any Restricted Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to the
Borrower or any Guarantor, (ii) of any Restricted Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Restricted Subsidiary
to create, incur, assume or suffer to exist Liens in favor of the Administrative
Agent or the Lenders on property of such Person; provided, however,
that this clause (iii) shall not prohibit any negative pledge created, incurred or
provided (A) in favor of any holder of Indebtedness permitted under Section 7.03
solely to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness and/or the proceeds thereof or (B) with respect to
properties and reserves that are not Borrowing Base Properties and are not included
in the most recent Engineering Report delivered pursuant to Section 3.01; or (b)
requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person.
SECTION 2. Limited Waiver. Subject to the satisfaction of each of the conditions set forth in
Section 4 of this Amendment, the Majority Lenders hereby waive the Specified Events of
Default and the applicability of Section 7.09 of the Credit Agreement with respect to the
Subject Properties until the next Redetermination Date. By its signature below, the Borrower
agrees that, except as expressly provided above, nothing herein shall be construed as a continuing
waiver of any provision of the Credit Agreement or any other Loan Document. Nothing contained
herein shall obligate the Lenders to grant any additional waiver with respect to Section
7.09 of the Credit Agreement or of any other provision of the Credit Agreement or any other
Loan Document.
SECTION 3. Release of Subject Properties. Upon the satisfaction of each of the conditions set
forth in Section 4 of this Amendment, the Majority Lenders hereby authorize the
Administrative Agent to release all of the Liens and security interests granted by the Loan Parties
to the Administrative Agent on the Subject Properties.
SECTION 4. Conditions. The amendments to the Credit Agreement set forth in Section 1 of
this Amendment, the limited waiver set forth in Section 2 of this Amendment and the
authorization set forth in Section 3 of this Amendment shall be effective upon the
satisfaction of each of the conditions set forth in this Section 4.
4.1 Execution and Delivery. Each Loan Party and the Majority Lenders shall have executed and
delivered this Amendment and any other documents requested by the Administrative Agent prior to the
date hereof, all in form and substance satisfactory to the Administrative Agent.
4.2 No Default. Other than the Specified Events of Default, no Default shall have occurred
and be continuing.
4.3 Other Documents. The Administrative Agent shall have received such other instruments and
documents incidental and appropriate to the transaction provided for herein as
Third Amendment to Amended and Restated Credit Agreement and Limited Waiver — Page 2
the Administrative Agent or its special counsel may reasonably request prior to the date
hereof, and all such documents shall be in form and substance satisfactory to the Administrative
Agent.
4.4 Legal Matters Satisfactory. All legal matters incident to the consummation of the
transactions contemplated hereby shall be reasonably satisfactory to special counsel for the
Administrative Agent retained at the expense of the Borrower.
SECTION 5. Representations and Warranties of the Borrower. To induce the Majority Lenders
to enter into this Amendment, the Borrower hereby represents and warrants to the Lenders as
follows:
5.1 Reaffirmation of Representations and Warranties/Further Assurances. After giving effect
to the amendments and the limited waiver contained herein, each representation and warranty of the
Borrower or any Guarantor contained in the Credit Agreement or in any other Loan Document is true
and correct in all material respects on the date of this Amendment (except to the extent such
representations and warranties relate solely to an earlier date).
5.2 Corporate Authority; No Conflicts. The execution, delivery and performance by the
Borrower and each Guarantor (to the extent a party hereto or thereto) of this Amendment and all
documents, instruments and agreements contemplated herein are within the Borrower’s or such
Guarantor’s corporate or other organizational powers, have been duly authorized by necessary
action, require no approval, consent or action by or in respect of, or filing with, any court or
agency of government.
5.3 Enforceability. This Amendment constitutes the valid and binding obligation of the
Borrower enforceable in accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditor’s rights generally, and (ii)
the availability of equitable remedies may be limited by equitable principles of general
application.
SECTION 6. Miscellaneous.
6.1 Reaffirmation of Loan Documents and Liens. Any and all of the terms and provisions of the
Credit Agreement and the Loan Documents shall, except as amended and modified hereby, remain in
full force and effect. The Borrower hereby agrees that the amendments and modifications herein
contained shall not impair its liabilities, duties and obligations under the Credit Agreement and
the other Loan Documents to which it is a party or, except as expressly provided herein, the Liens
granted by it securing the payment and performance thereof. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any
Lender, the L/C Issuer or the Administrative Agent under any of the Loan Documents, nor, except as
expressly provided herein, constitute a waiver or amendment of any provision of any of the Loan
Documents. Upon and after the execution of this Amendment by each of the parties hereto, each
reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like
import referring to the Credit Agreement, and each reference in the other Loan Documents to “the
Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as modified hereby. This
Amendment is
Third Amendment to Amended and Restated Credit Agreement and Limited Waiver — Page 3
a Loan Document, and all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.
6.2 Parties in Interest. All of the terms and provisions of this Amendment shall bind and
inure to the benefit of the parties hereto and their respective successors and assigns.
6.3 Legal Expenses. The Borrower hereby agrees to pay all reasonable fees and expenses of
special counsel to the Administrative Agent incurred by the Administrative Agent in connection with
the preparation, negotiation and execution of this Amendment and all related documents.
6.4 Counterparts. This Amendment may be executed in one or more counterparts and by different
parties hereto in separate counterparts each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically attached to the same document.
However, this Amendment shall bind no party until the Borrower, the Majority Lenders, and the
Administrative Agent have executed a counterpart. Delivery of photocopies of the signature pages
to this Amendment by facsimile or electronic mail shall be effective as delivery of manually
executed counterparts of this Amendment.
6.5 Complete Agreement. THIS AMENDMENT, THE CREDIT AGREEMENT, AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
6.6 Headings. The headings, captions and arrangements used in this Amendment are, unless
specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the
terms of this Amendment, nor affect the meaning thereof.
6.7 Governing Law. This Amendment shall be governed by, and construed in accordance with, the
law of the State of Texas.
[Remainder of Page Intentionally Blank. Signature Pages Follow.]
Third Amendment to Amended and Restated Credit Agreement and Limited Waiver — Page 4
IN WITNESS WHEREOF, the parties have caused this Third Amendment to Amended and Restated
Credit Agreement and Limited Waiver to be duly executed as of the date first above written.
| BORROWER: CONCHO RESOURCES INC., a Delaware corporation |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Vice President | ||||
| JPMORGAN CHASE BANK, N.A., as a Lender, L/C Issuer and Swing Line Lender |
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Vice President | ||||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
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| BANK OF AMERICA, N.A., as Syndication Agent and a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| BNP PARIBAS, as a Co-Documentation Agent and a Lender |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, f/k/a CALYON (NEW YORK BRANCH), as a Co-Documentation Agent and a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| ING CAPITAL LLC, as a Co-Documentation Agent and a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| SCOTIABANC INC., as a Lender |
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| By: | /s/ ▇.▇. ▇▇▇▇ | |||
| Name: | ▇.▇. ▇▇▇▇ | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| UNION BANK, N.A., as a Lender |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Assistant Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| BANK OF SCOTLAND plc, as a Lender |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Assistant Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| COMPASS BANK, as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| KEY BANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| ▇▇▇▇▇ FARGO BANK, N.A., as a Lender |
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| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | |||
| Title: | Vice President / Portfolio Manager | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| SUMITOMO MITSUI BANKING
CORPORATION, as a Lender |
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| By: | ||||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | General Manager | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| NATIXIS (formerly Natexis Banques Populaires), as a Lender |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III | |||
| Title: | Managing Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| SUNTRUST BANK, as a Lender |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| STERLING BANK, as a Lender |
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| By: | ||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| BANK OF TEXAS, N.A., as a Lender |
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| By: | /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| CITIBANK, N.A. (formerly Citibank Texas, N.A.), as a Lender |
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as a Lender |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
| By: | /s/ ▇▇▇▇ ▇’▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇’▇▇▇▇▇ | |||
| Title: | Director | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
| THE FROST NATIONAL BANK, as a Lender |
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| By: | ||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Signature Page |
CONSENT AND REAFFIRMATION
The undersigned (each a “Guarantor”) hereby (i) acknowledges receipt of a copy of the
foregoing Third Amendment to Amended and Restated Credit Agreement and Limited Waiver (the
“Third Amendment”); (ii) consents to the Borrower’s execution and delivery thereof; (iii)
agrees to be bound thereby; (iv) affirms that nothing contained therein shall modify in any respect
whatsoever its guaranty of the obligations of the Borrower to Lenders pursuant to the terms of its
Guaranty in favor of Agent and the Lenders (the “Guaranty”) and (v) reaffirms that the
Guaranty is and shall continue to remain in full force and effect. Although each Guarantor has
been informed of the matters set forth herein and has acknowledged and agreed to same, each
Guarantor understands that the Lenders have no obligation to inform any Guarantor of such matters
in the future or to seek any Guarantor’s acknowledgment or agreement to future amendments or
waivers for its Guaranty to remain in full force and effect, and nothing herein shall create such
duty or obligation.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of
the date of this Third Amendment.
| GUARANTORS: COG OPERATING LLC, a Delaware limited liability company |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| COG REALTY LLC, a Texas limited liability company |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| CONCHO ENERGY SERVICES LLC, a Texas limited liability company |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Consent and Reaffirmation |
| QUAIL RANCH LLC, a Texas limited liability company |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Consent and Reaffirmation |
EXHIBIT A
SUBJECT PROPERTIES
1. Oil and Gas Lease, dated as of June 1, 2008, by and between Chevron U.S.A. Inc., ▇▇▇▇▇
Petroleum LP and ▇▇▇▇▇ Equity LLC covering the W/2 and SE/4, Section 47, ▇▇▇ ▇▇, ▇-▇-▇, T&P RRy Co.
Survey, Ector County, Texas.
2. Oil and Gas Lease, dated as of June 1, 2008, by and between Chevron U.S.A. Inc., ▇▇▇▇▇ Petroleum
LP and ▇▇▇▇▇ Equity LLC, covering all of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇, ▇-▇-▇, T&P RRy Co. Survey, Ector
County, Texas.
3. Oil and Gas Lease, dated as of November 2, 2009, by and between Chevron U.S.A. Inc., Chevron
Midcontinent, L.P. and COG Operating LLC covering the N/2 SE/4 and E/2 SW/4 of Section 45, ▇▇▇ ▇▇,
T-4-S, T&P RRy Co. Survey, Upton County, Texas.
| Third Amendment to Amended and Restated Credit Agreement and Limited Waiver | ||
| Exhibit A |