Limited Waiver, dated effective as of December 8, 2017, among Titan Energy Operating, LLC, as borrower, Titan Energy, LLC, as parent, the subsidiary guarantors party thereto, the lenders party thereto, and Wells Fargo Bank, National Association, as administrative agent
Exhibit 10.1
LIMITED WAIVER AGREEMENT
dated as of
December 8, 2017
among
TITAN ENERGY OPERATING, LLC,
as Borrower,
TITAN ENERGY, LLC,
as Parent,
THE OTHER GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
LIMITED WAIVER AGREEMENT
This LIMITED WAIVER AGREEMENT (this “Limited Waiver”), dated as of December 8, 2017, is among TITAN ENERGY OPERATING, LLC, a limited liability company formed under the laws of the State of Delaware (the “Borrower”), TITAN ENERGY, LLC, a limited liability company formed under the laws of the State of Delaware (the “Parent”), each of the other undersigned guarantors (such guarantors together with the Parent, the “Guarantors”, and the Guarantors together with the Borrower, the “Loan Parties”), each of the Lenders that is a signatory hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”).
Recitals
A. The Borrower, the Parent, the Administrative Agent and the Lenders are parties to that certain Third Amended and Restated Credit Agreement dated as of September 1, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Lenders have, subject to the terms and conditions set forth therein, made certain credit available to and on behalf of the Borrower.
B. The parties hereto desire to enter into this Limited Waiver to waive, on a limited basis, certain Defaults and Events of Default that exist under the Credit Agreement and the other Loan Documents, in each case to be effective as of the Limited Waiver Effective Date.
NOW, THEREFORE, 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 which is defined in the Credit Agreement, but which is not defined in this Limited Waiver, shall have the meaning ascribed such term in the Credit Agreement. Unless otherwise indicated, all section references in this Limited Waiver refer to the Credit Agreement.
Section 2. Limited Waiver. Effective as of the Limited Waiver Effective Date, and until the Waiver Revocation Date, the Lenders party hereto, on a one-time basis, waive:
(a) any Default or Event of Default pursuant to Section 10.01(d) of the Credit Agreement in respect of the requirement under Section 9.01(a) of the Credit Agreement for the Rolling Period ending December 31, 2016;
(b) any Default or Event of Default pursuant to Section 10.01(d) of the Credit Agreement in respect of the requirement under Section 9.01(c) of the Credit Agreement for the Rolling Period ending December 31, 2016;
(c) any Default or Event of Default pursuant to Section 10.01(d) of the Credit Agreement resulting from the delivery of annual financial statements for the fiscal year ended December 31, 2016 in respect of the requirement under Section 8.01(a)(i) of the Credit Agreement without an unqualified opinion as to “going concern”;
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(d) any Default or Event of Default occurring on or prior to April 30, 2018 pursuant to Section 10.01(f) of the Credit Agreement solely in respect of the Permitted Second Lien Debt;
(e) any Default or Event of Default occurring on October 31, 2017 pursuant to Section 10.01(e) of the Credit Agreement in respect of the requirement under Section 4.2 of the Third Amendment;
(f) any Default or Event of Default occurring on November 1, 2017 pursuant to Section 10.01(e) of the Credit Agreement in respect of the requirement under Section 4.3 of the Third Amendment; and
(g) the Event of Default occurring on December 8, 2017 pursuant to Section 4.1 of the Fourth Amendment.
For purposes hereof, “Waiver Revocation Date” means the earliest of (i) the date any holder of Permitted Second Lien Debt or any other Indebtedness or any agent, trustee or representative on behalf of any such holder shall exercise or seek to exercise any rights or remedies (including set off or declaring such Debt due and payable), whether under or pursuant to the Junior Lien Intercreditor Agreement (other than delivery of a notice as contemplated in Section 3.02(a)(i) thereof), the Permitted Second Lien Debt Documents or any applicable indenture, loan agreement or similar agreement or under applicable law, or institutes any actions or proceeding in respect of the Junior Lien Intercreditor or any other Loan Document, against or in respect of any Secured Creditor, the Borrower or any of the other Loan Parties or any of their respective Property and whether as a secured or unsecured creditor, (ii) January 31, 2018 or (iii) the date any Event of Default occurs under the Credit Agreement (other than the Events of Default described in clauses (a), (b), (c), (d), (e), (f) and (g) above) or any other Loan Document.
Section 3. Conditions Precedent. This Limited Waiver shall be effective on the date the following conditions are fulfilled (such date being the “Limited Waiver Effective Date”):
3.1 The Administrative Agent shall have received duly executed counterparts of this Limited Waiver from the Loan Parties and the Majority Lenders.
3.2 The Administrative Agent shall have received evidence satisfactory to it that the Second Lien Collateral Agent (as defined in the Junior Lien Intercreditor Agreement) has extended the Specified Standstill Period (as defined in the Fourth Amendment) to no earlier than February 22, 2018.
3.3 The Administrative Agent (and any Lender and Issuing Bank, as applicable) shall have received all fees, expenses and other amounts due and payable on or prior to the Fourth Amendment Effective Date, including all the fees, charges and disbursements of any counsel for the Administrative Agent, any Issuing Bank and any Lender incurred in connection with the preparation, negotiation, execution and delivery of this Limited Waiver (including amounts due and owing to Linklaters LLP, Opportune LLP and Vinson & Elkins LLP); provided that all such amounts shall have been invoiced prior to the Fourth Amendment Effective Date.
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3.4 The Administrative Agent shall have received such other documents as the Administrative Agent or counsel to the Administrative Agent may reasonably request.
Section 4. Miscellaneous.
4.1 Confirmation and Effect. The provisions of the Credit Agreement and the other Loan Documents shall remain in full force and effect in accordance with its terms following the effectiveness of this Limited Waiver, and this Limited Waiver shall not constitute a waiver of any provision of the Credit Agreement or any other Loan Document, except as expressly provided for herein.
4.2 Ratification and Affirmation of Loan Parties. Each of the Loan Parties hereby expressly (a) acknowledges the terms of this Limited Waiver, (b) ratifies and affirms its obligations under the Guaranty Agreement and the other Loan Documents to which it is a party, (c) acknowledges, renews and extends its continued liability under the Guaranty Agreement and the other Loan Documents to which it is a party, (d) agrees that its guarantee under the Guaranty Agreement and the other Loan Documents to which it is a party remains in full force and effect with respect to the Indebtedness, (e) represents and warrants to the Lenders and the Administrative Agent that each representation and warranty of such Loan Party contained in the Credit Agreement and the other Loan Documents to which it is a party is true and correct in all material respects on and as of the Fourth Amendment Effective Date (other than (x) representations and warranties that were made as of a specific date, in which case such representations and warranties were true and correct in all material respects when made and (y) representations and warranties that are qualified by materiality or by reference to Material Adverse Effect, in which case such representations and warranties (as so qualified) shall continue to be true and correct in all respects), (f) represents and warrants to the Lenders and the Administrative Agent that the execution, delivery and performance by such Loan Party of this Limited Waiver are within such Loan Party’s corporate, limited partnership or limited liability company powers (as applicable), have been duly authorized by all necessary action and that this Limited Waiver constitutes the valid and binding obligation of such Loan Party enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditor’s rights generally, and (g) represents and warrants to the Lenders and the Administrative Agent that immediately on and as of the Fourth Amendment Effective Date, no Default, Event of Default (other than the Defaults and Events of Default described in Sections 3(a), (b), (c), (d), (e), (f) and (g) hereof) or Borrowing Base Deficiency exists.
4.3 Counterparts; Integration; Effectiveness; Electronic Execution.
(a) This Limited Waiver may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Limited Waiver and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent and/or the Issuing Bank, constitute the entire contract among the parties
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relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Limited Waiver by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Limited Waiver.
(b) The words “execution,” “signed” and “signature” shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
4.4 No Oral Agreement. THIS WRITTEN LIMITED WAIVER, 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 LIMITED WAIVER AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS LIMITED WAIVER AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
4.6 Payment of Expenses. The Borrower shall pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including, without limitation, the reasonable fees, charges and disbursements of counsel and other outside consultants for the Administrative Agent, the reasonable travel, photocopy, mailing, courier, telephone and other similar expenses, in connection with the preparation, negotiation, execution, delivery and administration (both before and after the execution hereof and including advice of counsel to the Administrative Agent as to the rights and duties of the Administrative Agent and the Lenders with respect thereto) of this Limited Waiver and any amendments, modifications or waivers of or consents related to the provisions hereof or thereof.
4.7 Severability. Any provision of this Limited Waiver held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
4.8 Successors and Assigns. The provisions of this Limited Waiver shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
4.9 Release. EACH OF THE LOAN PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS PREDECESSORS, SUCCESSORS, LEGAL REPRESENTATIVES AND
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ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASING PARTIES”), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THE DATE OF THIS LIMITED WAIVER, NONE OF THE RELEASING PARTIES HAS ANY CLAIMS OR CAUSES OF ACTION OF ANY KIND WHATSOEVER AGAINST, OR ANY GROUNDS OR CAUSE FOR REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS OR ANY LIENS OR SECURITY INTERESTS OF, THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES, OR AGAINST ANY OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS OR ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASED PARTIES”). IN PARTIAL CONSIDERATION FOR THE AGREEMENT OF THE ADMINISTRATIVE AGENT AND THE LENDERS PARTY HERETO TO ENTER INTO THIS LIMITED WAIVER, EACH OF THE RELEASING PARTIES HEREBY UNCONDITIONALLY WAIVES AND FULLY AND FOREVER RELEASES, REMISES, DISCHARGES AND HOLDS HARMLESS THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, DEMANDS AND LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR UNDISPUTED, KNOWN OR UNKNOWN, WHICH ANY OF THE RELEASING PARTIES HAS OR MAY ACQUIRE IN THE FUTURE RELATING IN ANY WAY TO ANY EVENT, CIRCUMSTANCE, ACTION OR FAILURE TO ACT AT ANY TIME ON OR PRIOR TO THE LIMITED WAIVER EFFECTIVE DATE, SUCH WAIVER, RELEASE AND DISCHARGE BEING MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE CIRCUMSTANCES AND EFFECTS OF SUCH WAIVER, RELEASE AND DISCHARGE, AND AFTER HAVING CONSULTED LEGAL COUNSEL OF ITS OWN CHOOSING WITH RESPECT THERETO. THIS PARAGRAPH IS IN ADDITION TO ANY OTHER RELEASE OF ANY OF THE RELEASED PARTIES BY THE RELEASING PARTIES AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE, COVENANT NOT TO SUE OR WAIVER BY THE RELEASING PARTIES IN FAVOR OF THE RELEASED PARTIES.
[Signature pages follow]
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The parties hereto have caused this Limited Waiver to be duly executed as of the day and year first above written.
| BORROWER: | TITAN ENERGY OPERATING, LLC, a Delaware limited liability company | |||||
| By: | /s/ Jeffrey M. Slotterback | |||||
| Name: | Jeffrey M. Slotterback | |||||
| Title: | Chief Financial Officer | |||||
| PARENT: | TITAN ENERGY, LLC, a Delaware limited liability company | |||||
| By: | /s/ Jeffrey M. Slotterback | |||||
| Name: | Jeffrey M. Slotterback | |||||
| Title: | Chief Financial Officer | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| ATLAS RESOURCE PARTNERS HOLDINGS, LLC, a Delaware limited liability company | ||||||
| ATLAS ENERGY COLORADO, LLC, a Colorado limited liability company | ||||||
| ATLAS ENERGY INDIANA, LLC, an Indiana limited liability company | ||||||
| ATLAS ENERGY OHIO, LLC, an Ohio limited liability company | ||||||
| ATLAS NOBLE, LLC, a Delaware limited liability company | ||||||
| ATLAS RESOURCES, LLC, a Pennsylvania limited liability company | ||||||
| REI-NY, LLC, a Delaware limited liability company | ||||||
| RESOURCE ENERGY, LLC, a Delaware limited liability company | ||||||
| RESOURCE WELL SERVICES, LLC, a Delaware limited liability company | ||||||
| VIKING RESOURCES, LLC, a Pennsylvania limited liability company | ||||||
| ARP BARNETT, LLC, a Delaware limited liability company | ||||||
| ARP OKLAHOMA, LLC, an Oklahoma limited liability company | ||||||
| ARP BARNETT PIPELINE, LLC, a Delaware limited liability company | ||||||
| By: | /s/ Jeffrey M. Slotterback | |||||
| Name: | Jeffrey M. Slotterback | |||||
| Title: | Chief Financial Officer | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| ATLAS BARNETT, LLC, a Texas limited liability company | ||||||
| ARP PRODUCTION COMPANY, LLC, a Delaware limited liability company | ||||||
| ARP RANGELY PRODUCTION, LLC, a Delaware limited liability company | ||||||
| ARP MOUNTAINEER PRODUCTION, LLC, a Delaware limited liability company | ||||||
| ATLS PRODUCTION COMPANY, LLC, a Delaware limited liability company | ||||||
| ARP EAGLE FORD, LLC, a Texas limited liability company | ||||||
| ATLAS ENERGY SECURITIES, LLC, a Delaware limited liability company | ||||||
| By: | /s/ Jeffrey M. Slotterback | |||||
| Name: | Jeffrey M. Slotterback | |||||
| Title: | Chief Financial Officer | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender, as Administrative Agent and an Issuing Bank | ||||||
| By: | /s/ Bryan M. McDavid | |||||
| Bryan M. McDavid | ||||||
| Director | ||||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| ABN AMRO BANK N.V., as a Lender | ||||||
| By: | /s/ Francis Ballard, Jr. | |||||
| Name: | Francis Ballard, Jr. | |||||
| Title: | Director | |||||
| By: | /s/ John Sullivan | |||||
| Name: | John Sullivan | |||||
| Title: | Managing Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| BANK OF AMERICA, N.A., as a Lender | ||||||
| By: | /s/ Jennifer Koszta | |||||
| Name: | Jennifer Koszta | |||||
| Title: | AVP | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| BARCLAYS BANK PLC, as a Lender | ||||||
| By: | /s/ Salvatore Russo | |||||
| Name: | Salvatore Russo | |||||
| Title: | Authorized Signatory | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | /s/ Matthew Molero | |||||
| Name: | Matthew Molero | |||||
| Title: | Senior Vice President | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| CITIBANK, N.A., as a Lender | ||||||
| By: | /s/ Phil Ballard | |||||
| Name: | Phil Ballard | |||||
| Title: | Vice President | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| COMPASS BANK, as a Lender | ||||||
| By: | /s/ Payton K. Swope | |||||
| Name: | Payton K. Swope | |||||
| Title: | EVP | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||||||
| By: | /s/ Dusan Lazarov | |||||
| Name: | Dusan Lazarov | |||||
| Title: | Director | |||||
| By: | /s/ Marcus Tarkington | |||||
| Name: | Marcus Tarkington | |||||
| Title: | Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| THE HUNTINGTON NATIONAL BANK, as a Lender | ||||||
| By: | /s/ Stephen Hoffman | |||||
| Name: | Stephen Hoffman | |||||
| Title: | Managing Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| ING CAPITAL LLC, as a Lender | ||||||
| By: | /s/ Scott Lamoreaux | |||||
| Name: | Scott Lamoreaux | |||||
| Title: | Director | |||||
| By: | /s/ Charles Hall | |||||
| Name: | Charles Hall | |||||
| Title: | Managing Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| JPMORGAN CHASE BANK, N.A., as a Lender | ||||||
| By: | /s/ Jo Linda Papadakis | |||||
| Name: | Jo Linda Papadakis | |||||
| Title: | Authorized Officer | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| NATAXIS, NEW YORK BRANCH, as a Lender | ||||||
| By: | /s/ Brice Le Foyer | |||||
| Name: | Brice Le Foyer | |||||
| Title: | Director | |||||
| By: | /s/ Charles Quinteros | |||||
| Name: | Charles Quinteros | |||||
| Title: | Managing Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| PNC BANK, NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | /s/ John Ataman | |||||
| Name: | John Ataman | |||||
| Title: | SVP | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| ROYAL BANK OF CANADA, as a Lender | ||||||
| By: | /s/ Sean F. Young | |||||
| Name: | Sean F. Young | |||||
| Title: | Authorized Signatory | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| SUNTRUST BANK, as a Lender | ||||||
| By: | /s/ William S. Krueger | |||||
| Name: | William S. Krueger | |||||
| Title: | First Vice President | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
| THE BANK OF NOVA SCOTIA, HOUSTON BRANCH, as a Lender | ||||||
| By: | /s/ Alan Dawson | |||||
| Name: | Alan Dawson | |||||
| Title: | Director | |||||
SIGNATURE PAGE TO
LIMITED WAIVER AGREEMENT
TITAN ENERGY OPERATING, LLC
