Third Amendment and Waiver to Sixth Amended and Restated Credit Agreement, dated June 17, 2020, by and among W&T Offshore, Inc., Toronto Dominion (Texas) LLC, as agent and the various agents and lenders party thereto
Exhibit 10.1
THIRD AMENDMENT AND WAIVER TO SIXTH AMENDED
AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT AND WAIVER TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT (herein called this “Third Amendment”), dated as of June 17, 2020 (the “Effective Date”), is entered into by and among W&T OFFSHORE, INC., a Texas corporation, as the borrower (the “Borrower”), the Guarantor Subsidiaries party hereto, the various financial institutions parties hereto, as Lenders, TORONTO DOMINION (TEXAS) LLC, individually and as agent (in such capacity together with any successors thereto, the “Administrative Agent”) for the Lenders, and the issuers of letters of credit parties hereto, as issuers (collectively, the “Issuers”).
WITNESSETH
WHEREAS, the Borrower, the lenders party thereto (collectively, the “Lenders”), the Administrative Agent, the Issuers and the other parties thereto have heretofore executed that certain Sixth Amended and Restated Credit Agreement, dated as of October 18, 2018 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, the parties hereto hereby further intend to amend certain provisions of the Credit Agreement, in each case on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the undersigned hereby agree as follows:
1. Definitions. Capitalized terms used herein (including in the Recitals hereto) but not defined herein, shall have the meanings as given them in the Credit Agreement, unless the context otherwise requires.
2. Amendments to Credit Agreement. Effective as of the Third Amendment Effective Date (as defined below), the Credit Agreement is hereby amended as set forth on Exhibit A attached hereto such that all of the newly inserted and underscored provisions and any formatting changes reflected therein shall be deemed inserted or made, as applicable, and all of the stricken provisions shall be deemed to be deleted therefrom. Schedules and Exhibits to the Credit Agreement shall remain as in effect under the Credit Agreement prior to the Third Amendment Effective Date.
3. Representations and Warranties. The Borrower hereby represents and warrants that after giving effect hereto:
(a) the representations and warranties of the Borrower and its Restricted Subsidiaries contained in the Loan Documents (as amended or waived hereby) are true and correct in all material respects (unless such representation or warranty is qualified by materiality, in which event such representation or warranty shall be true and correct in all respects) on and as of the Third Amendment Effective Date, other than those representations and warranties that expressly relate solely to a specific earlier date, which shall remain correct in all material respects as of such earlier date (unless such representation or warranty is qualified by materiality, in which event such representation or warranty is true and correct in all respects as of such earlier date);
(b) the execution, delivery and performance by the Borrower and its Restricted Subsidiaries of this Third Amendment are within their corporate or limited liability company powers, have been duly authorized by all necessary action, require, in respect of any of them, no action by or in respect of, or filing with, any governmental authority which has not been performed or obtained and do not contravene, or constitute a default under, any provision of Law or regulation or the articles of incorporation or the bylaws of any of them or any agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or its Restricted Subsidiaries or result in the creation or imposition of any Lien on any asset of any of them except as contemplated by the Loan Documents other than, in each case, as would not reasonably be expected to cause or result in a Material Adverse Change;
(c) the execution, delivery and performance by the Borrower and its Restricted Subsidiaries of this Third Amendment constitutes the legal, valid and binding obligation of each of them enforceable against them in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency or similar Laws of general application relating to enforcement of creditors’ rights;
(d) no Default or Event of Default has occurred and is continuing; and
(e) as of the date hereof, the Consolidated Cash Balance (as defined in Exhibit A hereof) does not exceed $25,000,000.
4. Subsidiaries. Schedule 1 attached hereto sets forth, as of the date hereof, each Subsidiary of Borrower and identifies whether or not such Subsidiary is an Excluded Subsidiary (including pursuant to a specific clause of the definition of Excluded Subsidiary) and identifies the Investment Percentage owned in such Person.
5. Redetermination of Borrowing Base. The Borrower and the Lenders hereby agree that effective as of the date hereof, the Borrowing Base shall be equal to $215,000,000 until such time as the Borrowing Base is redetermined or otherwise adjusted pursuant to the terms of the Credit Agreement. This is the Borrowing Base for the April 15, 2020 Evaluation Date.
6. Conditions to Effectiveness of Amendments. The amendments in Section 2 of this Third Amendment shall each be effective on the date on which all of the following conditions in this Section 6 of this Third Amendment are satisfied (such date, the “Third Amendment Effective Date”).
(a) The Administrative Agent shall have received counterparts of this Third Amendment duly executed by the Borrower, the Guarantor Subsidiaries, the Administrative Agent and the Required Lenders.
(b) The Administrative Agent shall have received all fees and expenses to the extent invoiced at least one (1) Business Day prior to the Third Amendment Effective Date.
(c) After giving effect to any transactions on the Third Amendment Effective Date, the Borrower will not have a Consolidated Cash Balance in excess of $25,000,000; provided that to the extent that satisfaction of the requirement of this condition (c) requires the Borrower to make a payment on outstanding Loans on a date that is not the last day of an Interest Period, the Borrower shall not be obligated to pay any amounts in respect thereof under Section 3.5 of the Credit Agreement and shall not be obligated to provide three (3) Business Days’ notice of such prepayment as provided in Section 2.6 of the Credit Agreement.
7. Ratification: Loan Document. This Third Amendment shall be deemed to be an amendment to the Credit Agreement effective as of the dates set forth herein, and the Credit Agreement, as hereby amended, is hereby ratified, approved and confirmed in each and every respect. The Borrower and each Guarantor Subsidiary hereby ratifies, approves and confirms in every respect all the terms, provisions, conditions and obligations of the Loan Documents (including, without limitation, all Security Documents) to which it is a party. All references to the Credit Agreement in any Loan Document or in any other document, instrument, agreement or writing shall hereafter be deemed to refer to the Credit Agreement as hereby amended. This Third Amendment is a Loan Document.
8. Costs And Expenses. As provided in Section 10.4 of the Credit Agreement, the Borrower agrees to reimburse the Administrative Agent for all reasonable costs and expenses incurred by or on behalf of the Administrative Agent (including attorneys’ fees, consultants’ fees and engineering fees, travel costs and miscellaneous expenses) in connection with this Third Amendment and any other agreements, documents, instruments, releases, terminations or other collateral instruments delivered by the Administrative Agent in connection with this Third Amendment.
9. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE DEEMED A CONTRACT AND INSTRUMENT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
10. Severability. If any term or provision of this Third Amendment shall be determined to be illegal or unenforceable all other terms and provisions of this Third Amendment shall nevertheless remain effective and shall be enforced to the fullest extent permitted by applicable Law.
11. Counterparts. This Third Amendment may be separately executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same agreement. Any signature hereto delivered by a party by facsimile or electronic transmission shall be deemed to be an original signature hereto.
12. Successors and Assigns. This Third Amendment shall be binding upon the Borrower and its successors and permitted assigns and shall inure, together with all rights and remedies of each Lender Party hereunder, to the benefit of each Lender Party and its successors, transferees and assigns.
13. No Waiver. The execution, delivery and effectiveness of this Third Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver by the Administrative Agent or the Lenders of any Defaults or Events of Default which may exist, which may have occurred prior to the date of the effectiveness of this Third Amendment or which may occur in the future under the Credit Agreement and/or the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
BORROWER:
W&T OFFSHORE, INC.
By: /s/ Janet Yang
Name: Janet Yang
Title: Executive Vice President and Chief Financial Officer
TORONTO DOMINION (TEXAS) LLC,
as Administrative Agent
By: /s/ Hughroy Enniss
Name: Hughroy Enniss
Title: Authorized Signatory
THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as Lender
By: /s/ Hughroy Enniss
Name: Hughroy Enniss
Title: Authorized Signatory
THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as Issuer
By: /s/ Hughroy Enniss
Name: Hughroy Enniss
Title: Authorized Signatory
MORGAN STANLEY BANK, N.A., as Lender
By: /s/ Kevin Newman
Name: Kevin Newman
Title: Authorized Signatory
NATIXIS, NEW YORK BRANCH, as Lender
By:
Name:
Title:
By:
Name:
Title:
NATIXIS, NEW YORK BRANCH, as Issuer
By:
Name:
Title:
By:
Name:
Title:
SOCIÉTÉ GENERALE,
as Lender
By: /s/ Max Sonnonstine
Name: Max Sonnonstine
Title: Director
SOCIÉTÉ GENERALE,
as Issuer
By: /s/ Max Sonnonstine
Name: Max Sonnonstine
Title: Director
AMEGY BANK NATIONAL ASSOCIATION,
as Lender
By:
Name:
Title:
ZIONS BANCORPORATION, N.A. DBA
ABN AMRO CAPITAL USA LLC,
as Lender
By: /s/ Patty Smolik
Name: Patty Smolik
Title: Vice President
ACKNOWLEDGED AND ACCEPTED BY:
W & T ENERGY VI, LLC
By: /s/ Janet Yang
Name: Janet Yang
Title: Executive Vice President and Chief Financial Officer
W & T ENERGY VII, LLC
By: /s/ Janet Yang
Name: Janet Yang
Title: Executive Vice President and Chief Financial Officer
Schedule 1
Subsidiaries/Operating Joint Ventures
| Subsidiary/Operating Joint Venture | Percentage of Ownership | Excluded Subsidiary |
| W & T Energy VI, LLC | 100% | No |
| W & T Energy VII, LLC | 100% | No |
| White Shoal Pipeline Corporation | 73.38% | Yes (Immaterial Subsidiary) |
| Monza Energy LLC | 10.5% of the Class A units and 100% of the Class B units | N/A (Operating Joint Venture) |
