FOURTH AMENDMENT TO CREDIT AGREEMENT

EX-10.1 2 d70286exv10w1.htm EX-10.1 exv10w1
Exhibit 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
     THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (herein called the “Amendment”), is dated as of November 24, 2009, by and among Encore Energy Partners Operating LLC, a Delaware limited liability company (“Borrower”), Encore Energy Partners LP, a Delaware limited partnership (“Parent”), Bank of America, N.A., as the Administrative Agent (the “Administrative Agent”) and L/C Issuer, and the Lenders party hereto.
W I T N E S S E T H:
     WHEREAS, Borrower, Parent, the Administrative Agent, L/C Issuer and the lenders party thereto (the “Lenders”) are party to that certain Credit Agreement dated as of March 7, 2007 (as heretofore amended, the “Original Agreement”), for the purpose and consideration therein expressed, whereby L/C Issuer became obligated to issue Letters of Credit to Borrower and the Lenders became obligated to make loans to Borrower as therein provided; and
     WHEREAS, Borrower, Parent, the Administrative Agent, the L/C Issuer and the Lenders party hereto desire to amend the Original Agreement as set forth herein;
     NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and in the Original Agreement, in consideration of the loans and other credit which may hereafter be made by the Lenders and the L/C Issuer to the Borrower, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
     Section 1.1. Terms Defined in the Original Agreement. Unless the context otherwise requires or unless otherwise expressly defined herein, the terms defined in the Original Agreement shall have the same meanings whenever used in this Amendment.
     Section 1.2. Other Defined Terms. Unless the context otherwise requires, the following terms when used in this Amendment shall have the meanings assigned to them in this Section 1.2.
          “Amendment” means this Fourth Amendment to Credit Agreement.
          “Credit Agreement” means the Original Agreement as amended hereby.
[Fourth Amendment to
Credit Agreement]


 

ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
     Section 2.1. Amendments. Subject to the satisfaction of the conditions precedent set forth in Sections 3.1 and 3.2, the Original Agreement shall be amended effective as of the Effective Date (as defined below) in the manner provided in this Section 2.1.
     (a) Defined Terms. The definitions of “Designated EAC Stockholders” and “EAC Credit Party” are hereby deleted. The following definitions are hereby added to Section 1.01 of the Original Agreement in appropriate alphabetical order:
     ““Denbury” means Denbury Resources Inc., a Delaware corporation.”
     ““Denbury Credit Agreement” means that certain Sixth Amended and Restated Credit Agreement effective as of September 14, 2006 among Denbury Onshore, LLC, a Delaware limited liability company, Denbury, JPMorgan Chase Bank, N.A., as administrative agent and the financial institutions from time to time party thereto as in effect on November 24, 2009.”
     ““Denbury Credit Party” means Denbury or any of its Subsidiaries.”
     (b) Change of Control. The definition of “Change of Control” in Section 1.01 of the Original Agreement is hereby amended in its entirety to read as follows:
     ““Change of Control” means the occurrence of any of the following whether voluntarily or involuntarily, including by operation of law:
     (a) the Borrower shall cease to be a wholly owned Subsidiary of Parent;
     (b) General Partner shall cease to be the sole general partner of Parent; or General Partner shall cease to be Controlled by Denbury; or any “person” or “group” (for purposes of this clause (b) and the following clause (c), as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than Denbury, or any wholly owned Subsidiary of Denbury, is or becomes the “beneficial owner” (for purposes of this clause (b) and the following clause (c), as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such a person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 30% of the total voting power of the voting stock of General Partner;
     (c) for any reason, any Person or group shall become (i) the direct or indirect beneficial owner of greater than thirty percent (30%) of the total voting power of all classes of capital stock then outstanding of Denbury entitled (without regard to the occurrence of any contingency) to vote in elections of directors of
[Fourth Amendment to
Credit Agreement]

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Denbury and (ii) the largest shareholder of the total voting power of all classes of capital stock then outstanding of Denbury entitled (without regard to the occurrence of any contingency) to vote in elections of directors of Denbury; or
     (d) any other event or condition which constitutes a “Change of Control” as that term is defined in the Denbury Credit Agreement.”
     (c) Transactions with Affiliates. The references in Section 7.09 to “EAC Credit Party” are hereby amended to read “Denbury Credit Party”.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
     Section 3.1. Conditions to Effectiveness of this Amendment. This Amendment shall become effective when and only when the Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
     (a) executed counterparts of this Amendment (or a consent to this Amendment) from the Required Lenders; and
     (b) counterparts of this Amendment executed by a Responsible Officer of each applicable Credit Party sufficient in number for distribution to the Administrative Agent and the Lenders.
     Section 3.2. Conditions Precedent to Amendments. The amendments contained in Section 2.1 hereof are subject to the satisfaction of the following conditions precedent (the date such conditions are so satisfied herein called the “Effective Date”):
     (a) the “Closing”, as defined in that certain Agreement and Plan of Merger by and between EAC and Denbury Resources Inc. dated as of October 31, 2009 (the “Plan of Merger”) has occurred in accordance in all material respects with the terms of the Plan of Merger and applicable law.
     (b) The Administrative Agent’s receipt of a certificate signed by a Responsible Officer of the Borrower, in form and substance satisfactory to the Administrative Agent, certifying that (i) the “Closing” (as defined in the Plan of Merger) has occurred, (ii) each of the Borrower and each other Borrower-Related Party remakes its respective representations and warranties in accordance with Section 4.02(a) of the Original Agreement as of the Effective Date, (iii) no Default shall exist or would result from the Closing (assuming for this purpose that the amendments set forth in Section 2.1 are in effect), and (iv) each of the Original Agreement, as amended by this Amendment, and the other Loan Documents is ratified and confirmed in all respects.
     (c) Any fees required to be paid by the Credit Parties on or before the Effective Date pursuant to written agreements entered into by the Credit Parties shall have been paid.
[Fourth Amendment to
Credit Agreement]

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     (d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
     Section 4.1. Representations and Warranties. In order to induce the L/C Issuer and each Lender to enter into this Amendment, the Borrower and Parent represent and warrant to the L/C Issuer and each Lender that the representations and warranties contained in Article V of the Original Agreement or any other Loan Document are true and correct in all material respects on the date hereof, except to the extent such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date.
ARTICLE V.
MISCELLANEOUS
     Section 5.1. Ratification of Agreements.
     (a) The Original Agreement is hereby ratified and confirmed in all respects. The other Loan Documents are hereby ratified and confirmed in all respects. Any reference to the Credit Agreement in any Loan Document shall be deemed to be a reference to the Original Agreement as hereby amended. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement or any other Loan Document, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Document.
     (b) The undersigned Subsidiary or Subsidiaries of the Borrower (whether one or more, “Subsidiary Guarantor”, and if more than one jointly and severally), hereby (i) consents to the provisions of this Amendment and the transactions contemplated herein, (ii) ratifies and confirms the Guaranty made by it for the benefit of the Administrative Agent and Lenders executed pursuant to the Credit Agreement and the other Loan Documents made by it, (iii) agrees that all of its respective obligations and covenants thereunder shall remain unimpaired by the execution and delivery of this Amendment and the other documents and instruments executed in connection herewith, and (iv) agrees that such Guaranty and such other Loan Documents shall remain in full force and effect.
     Section 5.2. Survival of Agreements. All representations, warranties, covenants and agreements of any Credit Party herein shall survive the execution and delivery of this Amendment and the performance hereof, and shall further survive until all of the Obligations are paid in full. All statements and agreements contained in any certificate or instrument delivered
[Fourth Amendment to
Credit Agreement]

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by any Credit Party hereunder or under the Credit Agreement to the Administrative Agent or any Lender shall be deemed to constitute representations and warranties by, and/or agreements and covenants of, such Credit Party under this Amendment and under the Credit Agreement.
     Section 5.3. Loan Documents. This Amendment is a Loan Document, and all provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
     Section 5.4. Governing Law. This Amendment shall be governed by and construed in accordance with the Laws applicable to the Credit Agreement.
     Section 5.5. Counterparts; Fax. This Amendment may be separately executed in counterparts and by the different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same Amendment. This Amendment may be validly executed by facsimile or other electronic transmission.
     THIS AMENDMENT AND 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 OF THE PARTIES.
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[Fourth Amendment to
Credit Agreement]

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     IN WITNESS WHEREOF, this Amendment is executed as of the date first above written.
         
  ENCORE ENERGY PARTNERS OPERATING LLC
 
 
  By:   /s/ Robert C. Reeves    
    Robert C. Reeves, Vice President, Chief   
    Financial Officer, Treasurer and Secretary   
 
                 
    ENCORE ENERGY PARTNERS LP    
 
               
    By:   Encore Energy Partners GP LLC, its sole general partner    
 
               
 
      By:   /s/ Robert C. Reeves
 
Robert C. Reeves, Senior Vice President, Chief Financial Officer and Treasurer
   
         
  ENCORE CLEAR FORK PIPELINE LLC
 
 
  By:   /s/ Robert C. Reeves    
    Robert C. Reeves, Vice President, Treasurer  
    and Secretary   
 
[Signature Page to Fourth Amendment]


 

         
  BANK OF AMERICA, N.A.,
as Administrative Agent, L/C Issuer and a Lender
 
 
  By:   /s/ Jeffrey H. Rathkamp    
    Name:   Jeffrey H. Rathkamp   
    Title:   Managing Director   
 
[Signature Page to Fourth Amendment]


 

         
  WACHOVIA BANK, NATIONAL ASSOCIATION, as
Co-Syndication Agent and as a Lender
 
 
  By:   /s/ Charles D. Kirkham    
    Name:   Charles D. Kirkham   
    Title:   Senior Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  FORTIS CAPITAL CORP., as Co-Syndication Agent and as a Lender
 
 
  By:   /s/ Greg Smothers    
    Name:   Greg Smothers   
    Title:   Director   
 
         
     
  By:   /s/ Mei Wan Tong    
    Name:   Mei Wan Tong   
    Title:   Director   
 
[Signature Page to Fourth Amendment]


 

         
  BNP PARIBAS, as Co-Documentation Agent and as a Lender
 
 
  By:   /s/ Edward Pak    
    Name:   Edward Pak   
    Title:   Vice President   
 
         
     
  By:   /s/ Russell Otts    
    Name:   Russell Otts   
    Title:   Director   
 
[Signature Page to Fourth Amendment]


 

         
  CALYON NEW YORK BRANCH, as Co-Documentation Agent and as a Lender
 
 
  By:   /s/ Tom Byargeon    
    Name:   Tom Byargeon   
    Title:   Managing Director   
 
         
     
  By:   /s/ Sharada Manne    
    Name:   Sharada Manne   
    Title:   Director   
 
[Signature Page to Fourth Amendment]


 

         
  THE BANK OF NOVA SCOTIA, as a Lender
 
 
  By:   /s/ D. G. Mills    
    Name:   D. G. Mills   
    Title:   Managing Director   
 
[Signature Page to Fourth Amendment]


 

         
  COMERICA BANK, as a Lender
 
 
  By:   /s/ Peter L. Sefzik    
    Name:   Peter L. Sefzik   
    Title:   Senior Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  NATIXIS, as a Lender
 
 
  By:   /s/ Donovan C. Broussard    
    Name:   Donovan C. Broussard   
    Title:   Managing Director   
 
         
     
  By:   /s/ Liana Tchernysheva    
    Name:   Liana Tchernysheva   
    Title:   Director   
 
[Signature Page to Fourth Amendment]


 

         
  BANK OF SCOTLAND, as a Lender
 
 
  By:   /s/ Karen Weich    
    Name:   Karen Weich   
    Title:   Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  U.S. BANK NATIONAL ASSOCIATION, as a Lender
 
 
  By:   /s/ Daria M. Mahoney    
    Name:   Daria M. Mahoney   
    Title:   Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  UNION BANK, N.A., as a Lender
 
 
  By:   /s/ Alison Fuqua    
    Name:   Alison Fuqua   
    Title:   Assistant Vice President   
 
         
     
  By:   /s/ Sean Murphy    
    Name:   Sean Murphy   
    Title:   Senior Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  THE FROST NATIONAL BANK, as a Lender
 
 
  By:   /s/ Alex Zemkoski    
    Name:   Alex Zemkoski   
    Title:   Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  ROYAL BANK OF CANADA, as a Lender
 
 
  By:   /s/ Jay Sartain    
    Name:   Jay Sartain   
    Title:   Authorized Signatory   
 
[Signature Page to Fourth Amendment]


 

         
  CAPITAL ONE, N.A., as a Lender
 
 
  By:   /s/ Michael Higgins    
    Name:   Michael Higgins   
    Title:   Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  COMPASS BANK, as a Lender
 
 
  By:   /s/ Christopher S. Parada    
    Name:   Christopher S. Parada   
    Title:   Senior Vice President   
 
[Signature Page to Fourth Amendment]


 

         
  BARCLAYS BANK PLC, as a Lender
 
 
  By:   /s/ Nicholas Bell    
    Name:   Nicholas Bell   
    Title:   Director   
 
[Signature Page to Fourth Amendment]