EIGHTH AMENDMENT TO LOAN AGREEMENT AND SECOND AMENDMENT TO FORBEARANCE AGREEMENT
Exhibit 10.25
EIGHTH AMENDMENT TO LOAN AGREEMENT
AND SECOND
AMENDMENT TO FORBEARANCE AGREEMENT
THIS
EIGHTH AMENDMENT TO LOAN AGREEMENT AND SECOND AMENDMENT TO
FORBEARANCE AGEEMENT is entered into as of March 29, 2018 (the
"Eighth
Amendment to Loan Agreement," or this "Amendment"),
between FIELDPOINT PETROLEUM
CORPORATION, a
Colorado corporation ("Borrower") and
CITIBANK, N.A., a national
banking association ("Lender").
R E C I T A L S
A. Borrower
and Lender are parties to the Existing Credit Agreement (refer to
Section 1 for
terms not defined in the body of this Amendment), including the
Existing Forbearance Agreement defined below with respect to
certain Specified Defaults.
B. Borrower
has requested certain amendments to the Existing Credit Agreement
and the terms of the Forbearance Agreement. Subject to the terms
and conditions herein, the Lender has agreed to such amendments, to
be effective as of the Effective Date (unless otherwise expressly
provided herein).
NOW,
THEREFORE, in consideration of these premises and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
1. Same
Terms. All terms used herein which are defined in the
Existing Credit Agreement shall have the same meanings when used
herein, unless the context hereof otherwise requires or provides.
In addition, (i) all references in the Loan Documents to the
"Agreement" shall mean the
Existing Credit Agreement, as amended by this Amendment, as the
same shall hereafter be amended from time to time, and
(ii) all references in the Loan Documents to the "Loan
Documents" shall mean the Loan Documents, as amended by the
Modification Papers. In addition, the following terms have the
meanings set forth below:
"Effective Date"
means the date on which the conditions specified in Section 7 below are
satisfied (or waived in writing by Lender).
"Existing Credit
Agreement" means, collectively, that certain Loan and
Security Agreement dated as of October 18, 2006, between Borrower
and Lender, as amended by a First Amendment to Loan and Security
Agreement dated May 29, 2009, a Second Amendment to Loan and
Security Agreement dated August 12, 2009, a Third Amendment to Loan
and Security Agreement dated November 10, 2009, a Fourth Amendment
to Loan and Security Agreement dated October 17, 2011 and a Fifth
Amendment to Loan and Security Agreement dated March 19, 2014, a
Sixth Amendment to Loan Agreement and Forbearance Agreement dated
September 30, 2016, and a Seventh Amendment to Loan Agreement
and First Amendment to Forbearance Agreement dated December 29,
2017.
“Existing Forbearance
Agreement” means a Sixth Amendment to Loan Agreement
and Forbearance Agreement dated September 30, 2016 between
Borrower and Lender, as amended by a Seventh Amendment to Loan
Agreement and First Amendment to Forbearance Agreement dated
December 29, 2017.
"Modification
Papers" means this Amendment and all of the other documents
and agreements executed in connection with the transactions
contemplated by this Amendment.
“Specified
Defaults” shall have the meaning set forth in the
Existing Forbearance Agreement.
2. Amendments
to Existing Credit Agreement. On the Effective Date, the
Existing Credit Agreement shall be deemed to be amended as
follows:
(a) Section
1.51 of the Existing Credit Agreement shall be amended to
read in its entirety as follows:
"1.51
Maturity Date shall mean,
unless the Note is sooner accelerated pursuant to Section 10.2 hereof,
June 30, 2018."
3. Amendments
to Existing Forbearance Agreement. On the Effective Date,
the parties agree that (x) with respect to Lender’s
agreement to forbear, the terms of Sections 3, 4, 5, 6, 8, and 13 of the Existing Forbearance
Agreement shall continue in full force and effect and be ratified
by the parties hereto, subject to the amendments thereto set forth
in this section, and (y) the Existing Forbearance Agreement
shall be deemed to be amended as follows:
(a) The
introductory paragraph of Section 4 of the Existing Forbearance
Agreement shall be amended to read in its entirety as
follows:
“4. Forbearance.
Unless the Forbearance Period (as defined below) is sooner
terminated as provided in Section 5, Lender hereby agrees
to forbear from the exercise of any of its rights and remedies
under the Existing Credit Agreement and the other Loan Documents in
connection with the Specified Defaults and the Specified
Anticipated Defaults for a period beginning as of the Effective
Date and continuing through and including June 30, 2018 (the
"Forbearance
Period").”
(b) Section 5A(i)
of the Existing Forbearance Agreement shall be amended to read in
its entirety as follows:”
“(i)
End of Forbearance Period. June
30, 2018;”
(c) Section
8 of the Existing Forbearance Agreement shall be amended to replace
the reference to “March 31, 2018” therein with a
reference to “June 30, 2018”.
(d) Section
13 of the Existing Forbearance Agreement shall be amended to
replace each reference to “March 31, 2018” therein with
a reference to “June 30, 2018”.
4. Confirmation
of Revolving Credit Borrowing Base. The parties agree that
the Revolving Credit Borrowing Base remains $2,761,632.29 until
next redetermined as provided in Article III of the Loan
Agreement.
5. Agreement
with Respect to Certain Properties. The parties hereby agree
and acknowledge that:
(a) upon
receipt by Borrower of any additional interests in oil and gas
properties during the Forbearance Period, Borrower will promptly
provide Lender with adequate legal descriptions and properly
executed and notarized Mortgages in form and substance satisfactory
to Lender for filing such that Lender shall have a first-priority
lien on any such acquired properties; and
(b) Section
7.7 of the Existing Credit Agreement prohibits the sale or other
disposition of oil and gas properties, but to the extent that any
sale or disposition may be approved by Lender in its sole
discretion during the Forbearance Period, any net proceeds of such
disposition that are applied to the payment of the Indebtedness
shall result in an automatic reduction of the Borrowing Base by the
amount of such payment.
6. No
Waiver. This Amendment shall not be construed as a consent
to or waiver of the Specified Defaults or the Specified Anticipated
Defaults or any other Default or Event of Default which may now
exist or hereafter occur or any violation of any term, covenant or
provision of the Existing Credit Agreement or any other Loan
Document. All rights and remedies of Lender are hereby expressly
reserved with respect to the Specified Defaults and the Specified
Anticipated Defaults any other Default or Event of Default which
may now exist or hereafter occur. This Amendment does not affect or
diminish the right of Lender to require strict performance by
Borrower of each provision of any Loan Document to which such
Person is a party, except as expressly provided herein. All terms
and provisions of and all rights and remedies of Lender under the
Loan Documents shall continue in full force and effect and are
hereby confirmed and ratified in all respects.
7. Conditions
Precedent to Effective Date. The obligations, agreements and
waivers of Lender as set forth in this Amendment are subject to the
satisfaction (in the opinion of Lender), unless waived in writing
by Lender, of each of the following conditions (and upon such
satisfaction, this Amendment shall be deemed to be effective as of
the Effective Date):
A. Eighth
Amendment to Loan Agreement. Borrower shall have delivered
to Lender duly executed counterparts of this
Amendment.
B. Fees
and Expenses. Lender shall have received payment of the fees
and expenses of Lender’s counsel invoiced on or before the
Effective Date.
C. Representations
and Warranties. All representations and warranties contained
herein or in the other Modification Papers or the documents
referred to therein or otherwise made in writing in connection
herewith or therewith shall be true and correct in all material
respects with the same force and effect as though such
representations and warranties have been made on and as of the
Effective Date.
8. Certain
Representations. Borrower represents and warrants that, as
of the date of this Amendment: (a) Borrower has full power and
authority to execute the Modification Papers to which it is a party
and the Modification Papers executed by Borrower constitute the
legal, valid and binding obligation of Borrower enforceable in
accordance with their terms, except as enforceability may be
limited by general principles of equity and applicable bankruptcy,
insolvency, reorganization, moratorium, and other similar laws
affecting the enforcement of creditors' rights generally; and
(b) no authorization, approval, consent or other action by,
notice to, or filing with, any governmental authority or other
person is required for the execution, delivery and performance by
Borrower of the Modification Papers. In addition, Borrower
represents that after giving effect to this Amendment and subject
to the matters disclosed in the Specified Defaults and the
Specified Anticipated Defaults, all representations and warranties
contained in the Existing Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as
of the date of this Amendment as if made on and as of such date
except as otherwise disclosed in writing by Borrower to Lender or
disclosed in Borrower's publicly filed disclosures with the SEC 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 as of such earlier date.
EIGHTH AMENDMENT TO LOAN
AGREEMENT AND SECOND AMENDMENT TO FORBEARANCE
AGREEMENT – Page 3
9. No
Further Amendments. Except as previously amended in writing
or as amended hereby, the Existing Credit Agreement shall remain
unchanged and all provisions shall remain fully effective between
the parties.
10.
Release.
Borrower represents and warrants that as of the date of this
Amendment, there are no claims or offsets or defenses or
counterclaims to Borrower's obligations under the Loan Documents,
and in accordance therewith Borrower:
(a) waives
any and all such claims, offsets, defenses or counterclaims,
whether known or unknown, arising under the Loan Documents prior to
the Effective Date; and
(b)
releases and discharges Lender and its officers, directors,
employees, agents, shareholders, affiliates and attorneys (the
"Released
Parties") from any and all obligations, indebtedness,
liabilities, claims, rights, causes of action or other demands
whatsoever, whether known or unknown, suspected or unsuspected, in
law or equity, which Borrower ever had, now has or claims to have
or may have against any Released Party arising prior to the date of
this Amendment and from or in connection with the Loan Documents or
the transactions contemplated thereby, except those resulting from
the gross negligence or willful misconduct of the Released
Party.
11. Limitation
on Agreements. The modifications set forth herein are
limited precisely as written and shall not be deemed (a) to be
a consent under or a waiver of or an amendment to any other term or
condition in the Existing Credit Agreement or any of the Loan
Documents, or (b) to prejudice any right or rights which
Lender now has or may have in the future under or in connection
with the Existing Credit Agreement and the Loan Documents, each as
amended hereby, or any of the other documents referred to herein or
therein. The Modification Papers shall constitute Loan Documents
for all purposes.
12. Confirmation
of Security. Borrower hereby confirms and agrees that all of
the deeds of trust, security agreements and other security
instruments which presently secure the Indebtedness shall continue
to secure, in the same manner and to the same extent provided
therein, the payment and performance of the Indebtedness as
described in the Existing Credit Agreement as modified by this
Amendment.
13. Counterparts.
This Amendment may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed an original,
but all of which constitute one instrument. In making proof of this
Amendment, it shall not be necessary to produce or account for more
than one counterpart thereof signed by each of the parties
hereto.
14. Incorporation
of Certain Provisions by Reference. The provisions of
Section 11.5
of the Existing Credit Agreement captioned "GOVERNING LAW",
Section 11.6 of the
Existing Credit Agreement captioned "SUBMISSION TO JURISDICTION"
and Section 11.18 of the
Existing Credit Agreement captioned "WAIVER OF JURY TRIAL" are
incorporated herein by reference for all purposes.
15. Entirety,
Etc. This Amendment and all of the other Loan Documents
embody the entire agreement between the parties. THIS AMENDMENT AND
ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[This space is left intentionally blank. Signature pages
follow.]
EIGHTH AMENDMENT TO LOAN
AGREEMENT AND SECOND AMENDMENT TO FORBEARANCE
AGREEMENT – Page 4
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to
be effective as of the date and year first above
written.
BORROWER:
FIELDPOINT
PETROLEUM CORPORATION
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title:
Principal Operating
Officer and Principal Financial Officer
EIGHTH AMENDMENT TO LOAN
AGREEMENT AND SECOND AMENDMENT TO FORBEARANCE
AGREEMENT – Signature Page
LENDER:
CITIBANK,
N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title:
Attorney in fact,
Citibank, N.A.
EIGHTH AMENDMENT TO LOAN
AGREEMENT AND SECOND AMENDMENT TO FORBEARANCE
AGREEMENT – Signature Page