UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549 

 

 

FORM 8-K 

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 25, 2020

 

 

 

ABRAXAS PETROLEUM CORPORATION

(Exact name of registrant as specified in charter) 

 

 

  

 

 

 

 

Nevada

 

1-16071

 

74-2584033

(State or other Jurisdiction

 

(Commission File Number)

 

(I.R.S. Employer

of incorporation or organization)

 

 

 

Identification No.)

 

18803 Meisner Drive San Antonio, Texas

 

78258

(Address of principal executive offices)

 

(ZIP Code)

 

(Registrant’s telephone number, including area code) (210) 490-4788

 

None

(Former name or former address, if changed since last report)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

 

Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

Title of each class

Trading

Symbol(s)

 

Name of each exchange on which registered

Common Stock, par value $.01 per share

AXAS

The NASDAQ Stock Market, LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Waiver and Amendment No. 10 to Third Amended and Restated Agreement

 

On June 25, 2020, Abraxas Petroleum Corporation (“Abraxas”) (NASDAQ:AXAS) and its subsidiary guarantors entered into the Waiver and Amendment No. 10 to Credit Agreement (the “1L Amendment”) with Société Générale, as administrative agent and issuing lender, and the lenders party thereto, pursuant to which the parties agreed to, among other things, waive Abraxas’ designated events of default with respect to its first lien credit facility and amend certain covenants and payment provisions of the Third Amended and Restated Credit Agreement, dated June 11, 2014, as amended, (the “1L Credit Agreement”).  A copy of the 1L Amendment is attached to this report as Exhibit 10.1. The 1L Credit Agreement, as amended, including as amended by the 1L Amendment, is referred to herein as the “First Lien Credit Agreement”.

 

Due to the unprecedented conditions surrounding the outbreak and spread of the COVID-19 coronavirus pandemic, the recent decline in oil prices, and related geopolitical developments, Abraxas failed to file its Annual Report on Form 10-K for the period ended December 31, 2019 no later than 90 days after the end of such fiscal year, which resulted in violations of certain covenants under the 1L Credit Agreement (as in effect prior to the 1L Amendment).  Subject to the terms and conditions of the 1L Amendment, Société Générale and each of the other lenders permanently waived such events of default and agreed not to charge default interest with respect to such defaults.

 

The 1L Amendment modifies certain provisions of the 1L Credit Agreement, including (i) the addition of monthly mandatory prepayments from excess cash (defined as available cash minus certain cash set-asides and a $3 million working capital reserve) with corresponding reductions to the borrowing base; (ii) the replacement of total debt leverage ratio and minimum asset ratio covenants with first lien debt leverage ratio and minimum first lien asset coverage ratio covenants; (iii) the elimination of current ratio and interest coverage ratio covenants; (iv) additional restrictions on capital expenditures, outstanding accounts payable and general and administrative expenses; and (v) permission for up to an additional $25 million in structurally subordinated debt to finance capital expenditures.  Abraxas, Société Générale, and the lenders also agreed that concurrently with the effectiveness of the Amendment, the borrowing base would be adjusted from $135.0 million to $102 million and the semi-annual borrowing base mechanism removed, with the new borrowing base amount to remain in effect until the next adjustment of the borrowing base pursuant to the First Lien Credit Agreement.

 

The foregoing summary of the First Lien Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the First Lien Credit Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Waiver and Second Amendment to Term Loan Credit Agreement

 

On June 25, 2020, Abraxas and its subsidiary guarantors entered into the Waiver and Second Amendment to Term Loan Credit Agreement (the “2L Amendment”) with Angelo Gordon Energy Servicer, LLC (“Angelo Gordon”), as administrative agent and issuing lender, and the lenders party thereto, pursuant to which the parties agreed to, among other things, waive Abraxas’ designated events of default with respect to its second lien credit facility and amend certain covenants and payment provisions of the Term Loan Credit Agreement, dated as of November 13, 2019, as amended, (the “2L Credit Agreement”).  A copy of the 2L Amendment is attached to this report as Exhibit 10.2.  The 2L Credit Agreement, as amended, including as amended by the 2L Amendment, is referred to herein as the “Second Lien Credit Agreement”.

 

Due to the unprecedented conditions surrounding the outbreak and spread of the COVID-19 coronavirus pandemic, the recent decline in oil prices, and related geopolitical developments, Abraxas failed to file its Annual Report on Form 10-K for the period ended December 31, 2019 no later than 90 days after the end of such fiscal year, which resulted in violations of certain covenants under the 2L Credit Agreement (as in effect prior to the 2L Amendment).  Additionally, Abraxas failed to maintain the required hedges under the 2L Credit Agreement with respect to the fiscal quarter ending March 31, 2020, which resulted in a violation of certain covenants under the 2L Credit Agreement (as in effect prior to the 2L Amendment).  Subject to the terms and conditions of the 2L Amendment, Angelo Gordon and each of the other lenders permanently waived such events of default and agreed not to charge default interest with respect to such defaults.

 

The 2L Amendment modifies certain provisions of the 2L Credit Agreement, including (i) a requirement that, while the obligations under the First Lien Credit Agreement are outstanding, scheduled payments of accrued interest under the Second Lien Credit Agreement will be paid in the form of capitalized interest or in shares of equity of Abraxas; (ii) an increase in the interest rate by 200bps for interest payable in cash and 400-500bps for interest payable in kind; and (iii) modifications to financial covenants to conform to the Second Lien Credit Agreement.

 

The foregoing summary of the Second Lien Credit Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Second Lien Credit Agreement filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

 

 

Fee Letter

 

On June 25, 2020, Abraxas, in connection with the 2L Amendment and to induce Angelo Gordon and the lenders to enter into the 2L Amendment, entered into the Fee Letter (the “Fee Letter”) with Angelo Gordon, pursuant to which Abraxas will (i) pay $10,000,000 exit fee to Angelo Gordon and the lenders upon maturity of the obligations under the Second Lien Credit Agreement or the earlier acceleration or payment in full; (ii) grant warrants having an exercise price of $0.01 in an amount equal to 19.9% of the fully diluted common equity of Abraxas to Angelo Gordon and the lenders; (iii) negotiate and provide an alternative financial arrangement that would afford Angelo Gordon and the lenders an economic benefit equivalent in value to the warrants if the warrants cannot be issued on terms satisfactory to Angelo Gordon; and (iv) protect the lenders by taking such reasonable steps as necessary to grant the lenders either (a) the right to appoint one member to Abraxas' Board of Directors or (b) Board observation rights reasonably satisfactory to the administrative agent.  A copy of the Fee Letter is attached to this report as Exhibit 10.3.

 

The foregoing summary of the Fee Letter does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Fee Letter filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.

 

Non-Reliance on Representations and Warranties of Agreements

 

The First Lien Credit Agreement, the Second Lien Credit Agreement, and the Fee Letter contain representations and warranties that Abraxas made as of specific dates.  Except for their status as contractual documents that establish and govern the legal relations among the parties, none of the First Lien Credit Agreement, the Second Lien Credit Agreement, and the Fee Letter is intended to be a source of factual, business, or operational information about any of the parties thereto.  The representations and warranties were made as of specific dates, only for purposes of the proposed transactions, and solely for the respective benefit of the parties to the First Lien Credit Agreement, the Second Lien Credit Agreement, and the Fee Letter.  These representations and warranties may be subject to limitations agreed between the parties, including being qualified by disclosures between the parties.  The representations and warranties may have been made to allocate risks among the parties, including where the parties do not have complete knowledge of all facts, instead of establishing matters as facts.  Furthermore, those representations and warranties may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors.  Accordingly, investors and security holders should not rely on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only made as of the date of the First Lien Credit Agreement, the Second Lien Credit Agreement, and the Fee Letter.  Moreover, information concerning the subject matter of such representations and warranties may change after the date of these representations and warranties, which may or may not be fully reflected in the parties’ public disclosures.

 

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

 

To the extent required by Item 2.03 of Form 8-K, the information set forth under Item 1.01 above hereby is incorporated into this Item 2.03 by reference.

 

 

 

Item 9.01. Financial Statements and Exhibits.

 

D.

Exhibits.

 

Exhibit No.

Description

 

Exhibit 10.1

Waiver and Amendment No. 10 to Third Amended and Restated Agreement.

 

Exhibit 10.2

Waiver and Second Amendment to Term Loan Credit Agreement.

 

Exhibit 10.3

Fee Letter.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

ABRAXAS PETROLEUM CORPORATION

 

 

By: /s/ Steven P. Harris

Steven P. Harris

Vice President, Chief Financial Officer

 

Dated: June 25, 2020

 

 

 
ex_191730.htm

Exhibit 10.1

 

 

 

 

 

WAIVER and AMENDMENT no. 10 to credit AGREEMENT

 

This Waiver and Amendment No. 10 to Credit Agreement dated as of June 25, 2020 (this “Agreement”) is among Abraxas Petroleum Corporation, a Nevada corporation (the “Borrower”), the undersigned Guarantors (the “Guarantors”), the undersigned Lenders (as defined below), and Société Générale, as Administrative Agent for the Lenders (the “Administrative Agent”) and as Issuing Lender.

 

INTRODUCTION

 

A.     The Borrower, the financial institutions party thereto as Lenders (the “Lenders”), the Issuing Lender, and the Administrative Agent have entered into the Third Amended and Restated Credit Agreement dated as of June 11, 2014, as amended by Amendment No. 1 to Third Amended and Restated Credit Agreement dated as of September 22, 2014, Amendment No. 2 to Third Amended and Restated Credit Agreement dated as of April 20, 2016, Amendment No. 3 to Third Amended and Restated Credit Agreement dated as of May 16, 2017, Amendment No. 4 to Third Amended and Restated Credit Agreement dated as of January 10, 2018, Amendment No. 5 to Third Amended and Restated Credit Agreement dated as of March 29, 2018, Amendment No. 6 and Master Assignment and Acceptance Agreement to Third Amended and Restated Credit Agreement dated as of September 17, 2018, Waiver to Credit Agreement dated as of March 11, 2019, Amendment No. 7 to Third Amended and Restated Credit Agreement dated as of March 29, 2019, Amendment No. 8 to Third Amended and Restated Credit Agreement dated as of August 30, 2019, and Master Assignment and Acceptance Agreement, Waiver, and Amendment No. 9 to Third Amended and Restated Credit Agreement dated as of November 13, 2019 (as so amended and as further amended, supplemented or otherwise modified, the “Credit Agreement”).

 

B.     Reference is made to that certain Third Amended and Restated Guaranty Agreement made by the Guarantors in favor of the Administrative Agent dated as of June 11, 2014 (as amended, supplemented or otherwise modified, the “Guaranty”).

 

C.     Events of Default have occurred under Section 7.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to deliver (a) audited financial statements for the fiscal year ended December 31, 2019 (the “2019 Audited Financials”) not later than 90 days after the end of such fiscal year in violation of Section 5.06(a) of the Credit Agreement and (b) an unaudited balance sheet and unaudited financial statements for the fiscal quarter ended March 31, 2020 (the “Q1 2020 Financials”) not later than 45 days after the end of such fiscal quarter in violation of Section 5.06(b) of the Credit Agreement (such Events of Default being referred to herein as the “Financials Delivery Events of Default”).

 

D.     An Event of Default has occurred under Section 7.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to comply with Section 6.14(b)(ii) of the Credit Agreement on or prior to the Effective Date (such Event of Default being referred to herein as the “Maximum Hedging Event of Default”).

 

E.     An Event of Default has occurred under Section 7.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to comply with the minimum Asset Coverage Ratio requirement as set forth in Section 6.21 of the Credit Agreement with respect to the fiscal quarter ended March 31, 2020 (such Event of Default being referred to herein as the “Asset Coverage Ratio Event of Default, and together with the Maximum Hedging Event of Default and the Financials Delivery Events of Default, the “Designated First Lien Events of Default”).

 

F.     Events of Default have occurred under Section 7.01(d)(ii) of the Credit Agreement as a result of the Borrower’s failure to (a) deliver the 2019 Audited Financials not later than 90 days after the end of such fiscal year in violation of Section 8.06(a) of the Senior Secured Term Loan Agreement, (b) deliver the Q1 2020 Financials not later than 60 days after the end of such fiscal quarter in violation of Section 8.06(b) of the Senior Secured Term Loan Agreement, (c) comply with Section 9.14(b)(ii) of the Senior Secured Term Loan Agreement on or prior to the Effective Date, and (d) comply with the minimum Asset Coverage Ratio (as defined in the Senior Secured Term Loan Agreement) requirement as set forth in Section 9.19 of the Senior Secured Term Loan Agreement with respect to the fiscal quarter ended March 31, 2020 (all such Events of Default being referred to herein as the “Designated Second Lien Cross-Defaults”, and together with the Designated First Lien Events of Default, collectively, the “Designated Events of Default”)

 

 

 

G.     The Borrower has requested, and the Administrative Agent and the Lenders party hereto have agreed, subject to the terms and conditions hereof, (i) to waive the Designated Events of Default, (ii) redetermine the Borrowing Base, and (iii) amend the Credit Agreement, in each case as set forth herein.

 

H.     The Borrower and the Guarantors wish to reaffirm their guarantees of and liens supporting the Obligations as amended by this Agreement.

 

THEREFORE, in fulfillment of the foregoing, the Borrower, the Guarantors, the Administrative Agent, and the undersigned Lenders hereby agree as follows:

 

Section 1.     Definitions; References. All capitalized terms not otherwise defined in this Agreement that are defined in the Credit Agreement shall have the meanings assigned to such terms by the Credit Agreement.

 

Section 2.     Waiver. Notwithstanding any provisions in the Credit Agreement and the other Loan Documents to the contrary, upon the satisfaction of the conditions specified in Section 9 of this Agreement, but effective for all purposes as of the Effective Date, subject to the terms and conditions of this Agreement, each of the undersigned Lenders and the Administrative Agent hereby (a) permanently waives each of the Designated Events of Default and (b) agrees not to charge default interest with respect to the Designated Events of Default under the first clause of the definition of “Applicable Margin” in the Credit Agreement, in each case so long as each of the 2019 Audited Financials and the Q1 2020 Financials are delivered to the Administrative Agent and each Lender no later than 30 days after the Effective Date (as defined below). The waiver by the Lenders described in this Section 2 is limited to the extent described above and shall not be construed to be a waiver of any other claim arising out of the same or similar facts as the Designated Events of Default, or to be a waiver of Section 5.06(a), Section 5.06(b), Section 6.14, or Section 6.21 of the Credit Agreement for any defaults other than the Designated Events of Default, or otherwise to be a permanent waiver of any provision of the Credit Agreement or any other terms, provisions, covenants, warranties or agreements contained in any Loan Document. The Administrative Agent and the Lenders reserve the right to exercise any rights and remedies available to them in connection with any other present or future Defaults or Events of Default under any Loan Document. The description herein of the Designated Events of Default is based upon the information available to the Administrative Agent and the Lenders on or prior to the date hereof and shall not be deemed to exclude the existence of any other Defaults or Events of Default. The failure of the Administrative Agent or the Lenders to give notice to any Loan Party of any such other Defaults or Events of Default is not intended to be and shall not be a waiver thereof. Each of the Loan Parties acknowledges that any failure of the Administrative Agent or any Lender at any time or times hereafter to require strict performance by any Loan Party of any provision of the Credit Agreement and each other Loan Document shall not waive, affect or diminish any right of the Administrative Agent or any Lender to thereafter demand strict compliance therewith.

 

Section 3.     Borrowing Base Redetermination. In accordance with Section 2.02(b) of the Credit Agreement, the Administrative Agent, the Lenders and the Borrower confirm and agree that the Borrowing Base shall be redetermined from $135,000,000 to $102,000,000, effective as of the Effective Date. After giving effect to the Borrowing Base redetermination pursuant to this Agreement, each Lender’s respective Pro Rata Share of the Borrowing Base will be as set forth beside its name on Schedule I included in Annex I attached hereto. Once effective, the new Borrowing Base amount shall remain in effect until the next redetermination or adjustment of the Borrowing Base made pursuant to the Credit Agreement. The decrease in the Borrowing Base pursuant to this Section 3 shall constitute the Spring 2020 scheduled redetermination pursuant to Section 2.02(b)(ii) of the Credit Agreement immediately prior to giving effect to the amendments set forth in Section 4 below.

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Section 4.     Amendments to Credit Agreement. After giving effect to Section 3 above,

 

(a)      each of (a) the Credit Agreement, (b) Schedule I (Addresses and Commitments), (c) Schedule 4.01 (Subsidiaries) thereto, (d) Schedule 4.05 (Existing Debt) thereto, (e) Schedule 4.20 (Hedging Agreements) thereto, (f) Schedule 4.21 (Material Agreements) thereto, (g) Exhibit B (Form of Compliance Certificate) thereto, and (h) Exhibit F (Form of Notice of Borrowing) thereto is hereby amended and restated to read in its entirety as set forth in Annex I hereto; and

 

(b)     a new Exhibit M (Form of Excess Cash Certificate) in the form of Exhibit M hereto is added to the Credit Agreement in the appropriate order therein.

 

Section 5.     Senior Representative Consent. The Administrative Agent, as the Senior Representative under the Intercreditor Agreement, in connection with Section 5.03(b) of the Intercreditor Agreement, hereby consents to the amendment and modification of the Junior Debt Documents to (a) allow the Borrower to increase the principal amount of the Junior Obligations by means of payment of interest in-kind pursuant to Section 3.02(e) of the Senior Secured Term Loan Agreement, (b) require the payment of an Exit Fee, as described in Section 3.06(b) of the Senior Secured Term Loan Agreement, and (c) increase the amount of interest rate charged under Sections 3.02(a) and 3.02(b) of the Senior Secured Term Loan Agreement, in each case, as effected pursuant to the Second Lien Amendment (as defined in Section 9 below). The consent described in this Section 5 is limited to the extent described above and shall not be construed to be a consent to or waiver of any provision of the Intercreditor Agreement or any other terms, provisions, covenants, warranties or agreements contained in the Credit Agreement or any Loan Document.

 

Section 6.     Reaffirmation of Liens.

 

(a)     Each of the Borrower and each Guarantor (i) is party to certain Security Instruments securing and supporting the Borrower’s and Guarantors’ obligations under the Loan Documents, (ii) represents and warrants that according to their terms the Security Instruments will continue in full force and effect to secure the Borrower’s and Guarantors’ obligations under the Loan Documents, as the same may be amended, supplemented, or otherwise modified (including by this Agreement), and (iii) acknowledges, represents, and warrants that the liens and security interests created by the Security Instruments are valid and subsisting and create an Acceptable Security Interest in the Collateral to secure the Borrower’s and Guarantors’ obligations under the Loan Documents, as the same may be amended, supplemented, or otherwise modified (including by this Agreement).

 

(b)     The delivery of this Agreement does not indicate or establish a requirement that any Guaranty or Security Instrument requires the Borrower’s or any Guarantor’s approval of amendments to the Credit Agreement.

 

Section 7.     Reaffirmation of Guaranty. Each Guarantor hereby ratifies, confirms, and acknowledges that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of all of the Obligations, as such Obligations may have been amended by this Agreement. Each Guarantor hereby acknowledges that its execution and delivery of this Agreement do not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty in connection with the execution and delivery of amendments, modifications or waivers to the Credit Agreement, the Notes or any of the other Loan Documents.

 

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Section 8.     Representations and Warranties. Each of the Borrower and each Guarantor represents and warrants to the Administrative Agent and the Lenders that:

 

(a)     the representations and warranties set forth in the Credit Agreement, the Guaranties and in the other Loan Documents are true and correct in all material respects as of the date of this Agreement (except to the extent such representations and warranties relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that such materiality qualifier shall not apply if such representation or warranty is already subject to a materiality qualifier in the Credit Agreement or such other Loan Document;

 

(b)     (i) the execution, delivery, and performance of this Agreement are within the corporate, limited liability company or other power and authority of the Borrower or such Guarantor, as applicable, and have been duly authorized by appropriate proceedings and (ii) this Agreement constitutes a legal, valid, and binding obligation of the Borrower or such Guarantor, as applicable, enforceable against the Borrower or such Guarantor in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity; and

 

(c)     as of the effectiveness of this Agreement and after giving effect thereto, no Default or Event of Default (other than the Designated Events of Default) shall have occurred and be continuing.

 

Section 9.     Effectiveness. This Agreement shall become effective and enforceable against the parties hereto, upon the occurrence of the following conditions precedent (such date being the “Effective Date”):

 

(a)     The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this Agreement duly and validly executed and delivered by duly authorized officers of the Borrower, the Guarantors, the Administrative Agent and the Required Lenders.

 

(b)     The representations and warranties in this Agreement shall be true and correct before and after giving effect to this Agreement.

 

(c)     No Default or Event of Default (other than the Designated Events of Default) shall have occurred and be continuing.

 

(d)     (i) the Administrative Agent shall have received a copy of a fully executed waiver and amendment dated as of the date hereof under the Senior Secured Term Loan Agreement among the Borrower, the other Credit Parties, the lenders party to the Senior Secured Term Loan Agreement, and Angelo Gordon Energy Servicer, LLC, as administrative agent, which waiver and amendment shall (A) waive all defaults caused by or corresponding to the Designated Events of Default under and pursuant to the Senior Secured Term Loan Agreement, (B) include amendments to the Senior Secured Term Loan Agreement corresponding to those made pursuant to this Agreement and (C) otherwise be in a form satisfactory to the Administrative Agent (the “Second Lien Amendment”) and (ii) the Second Lien Amendment shall be effective or shall become effective on the Effective Date substantially simultaneously with this Agreement.

 

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(e)     The Administrative Agent shall have received such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection herewith.

 

(f)     The Borrower shall have paid all other costs, expenses, and fees which have been invoiced and are payable pursuant to Section 9.04 of the Credit Agreement or any other written agreement.

 

Section 10.     Effect on Loan Documents. Except as amended hereby, the Credit Agreement and the Loan Documents remain in full force and effect as originally executed, and, other than as set forth in Section 2, nothing herein shall act as a waiver of any of the Administrative Agent’s or Lenders’ rights under the Loan Documents, as amended. This Agreement is a Loan Document for the purposes of the provisions of the other Loan Documents. Without limiting the foregoing, any breach of representations, warranties, and covenants under this Agreement shall be a Default or Event of Default under other Loan Documents.

 

Section 11.     RELEASE. THE BORROWER ACKNOWLEDGES THAT ON THE DATE HEREOF ALL OBLIGATIONS ARE PAYABLE WITHOUT DEFENSE, OFFSET, COUNTERCLAIM OR RECOUPMENT. IN ADDITION, EACH OF THE LOAN PARTIES (FOR THEMSELVES AND THEIR RESPECTIVE SUCCESSORS, AGENTS, ASSIGNS, TRANSFEREES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, ATTORNEYS AND AGENTS) HEREBY RELEASES ANY AND ALL CLAIMS, CAUSES OF ACTION OR OTHER DISPUTES IT MAY HAVE AGAINST THE ADMINISTRATIVE AGENT, ANY OF THE LENDERS, LEGAL COUNSEL TO THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, CONSULTANTS HIRED BY ANY OF THE FOREGOING, OR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OF ANY KIND OR NATURE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH, THE CREDIT AGREEMENT, THE SECURITY AGREEMENTS OR THE LOAN DOCUMENTS, IN EACH CASE WHICH MAY HAVE ARISEN ON OR BEFORE THE DATE OF THIS AGREEMENT. EACH OF THE LOAN PARTIES HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND HAS CONFERRED WITH ITS COUNSEL AND ADVISORS REGARDING ITS CONTENT, INCLUDING THIS SECTION 11, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT, AND HEREBY AGREES TO WAIVE ANY CLAIM THAT THE TERMS OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE RELEASES CONTAINED HEREIN) ARE INVALID OR OTHERWISE UNENFORCEABLE.

 

Section 12.     Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York.

 

Section 13.     Miscellaneous.

 

(a)     Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original. Delivery of this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

(b)     No Oral Agreement. This AGREEMENT and the other Loan Documents represent the final agreement among 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 among the parties.

 

(c)     Payment of Expenses. The Borrower agrees to pay or reimburse the Administrative Agent for all of its out-of-pocket costs and expenses incurred in connection with this Agreement, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees, charges and disbursements of counsel to the Administrative Agent.

 

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(d)     Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

(e)     Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

[Remainder of page left blank; signatures follow.]

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ex_191734.htm

Exhibit 10.2

 

WAIVER and SECOND AMENDMENT to TERM LOAN credit AGREEMENT

 

This Waiver and Second Amendment to Term Loan Credit Agreement dated as of June 25, 2020 (this “Agreement”) is among ABRAXAS PETROLEUM CORPORATION, a Nevada corporation (the “Borrower”), the undersigned Guarantors (the “Guarantors”), the undersigned Lenders (as defined below), and ANGELO GORDON ENERGY SERVICER, LLC, (in its individual capacity, “AGES”), as Administrative Agent (in such capacity, together with its successors in such capacity, the “Administrative Agent”).

 

INTRODUCTION

 

A.     The Borrower, the financial institutions party thereto as Lenders (the “Lenders”) and the Administrative Agent have entered into the Term Loan Credit Agreement dated as of November 13, 2019, as amended by the First Amendment to Term Loan Credit Agreement dated as of January 20, 2020 (as so amended and as further amended, supplemented or otherwise modified, the “Credit Agreement”).

 

B.     Reference is made to that certain Term Loan Guaranty Agreement made by the Guarantors in favor of the Administrative Agent dated as of November 13, 2019 (as amended, supplemented or otherwise modified, the “Guaranty”).

 

C.     Events of Default have occurred under Section 10.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to deliver (a) audited financial statements for the fiscal year ended December 31, 2019 (the “2019 Audited Financials”) not later than 90 days after the end of such fiscal year in violation of Section 8.06(a) of the Credit Agreement and (b) a consolidated unaudited balance sheet and consolidated unaudited financial statements for the fiscal quarter ended March 31, 2020 (the “Q1 2020 Financial Statements”) not later than 60 days after the end of such fiscal quarter in violation of Section 8.06(b) of the Credit Agreement (such Events of Default being referred to herein as the “Second Lien Financial Statement Events of Default”).

 

D.     An Event of Default has occurred under Section 10.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to maintain the Required Hedges as set forth in Section 8.12 of the Credit Agreement with respect to the fiscal quarter ended March 31, 2020 (such Event of Default being referred to herein as the “Second Lien Minimum Hedges Default”).

 

E.     An Event of Default has occurred under Section 10.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to comply with Section 9.14(b)(ii) of the Credit Agreement on or prior to the Second Amendment Effective Date (such Event of Default being referred to herein as the “Second Lien Maximum Hedges Default”).

 

F.     An Event of Default has occurred under Section 10.01(c)(i) of the Credit Agreement as a result of the Borrower’s failure to comply with the minimum Asset Coverage Ratio requirement set forth in Section 9.19 of the Credit Agreement with respect to the fiscal quarter ended March 31, 2020 (such Event of Default being referred to herein as the “Second Lien Asset Coverage Ratio Default”, and together with the Second Lien Financial Statement Events of Default, the Second Lien Minimum Hedges Default and the Second Lien Maximum Hedges Default, the “Designated Second Lien Defaults”).

 

G.     Events of Default have occurred under Section 10.01(d)(ii) of the Credit Agreement as a result of (a) the Borrower’s failure to deliver (i) the 2019 Audited Financials not later than 90 days after the end of such fiscal year in violation of Section 5.06(a) of the Revolving Credit Agreement and (ii) the Q1 2020 Financial Statements not later than 45 days after the end of such fiscal quarter in violation of Section 5.06(b) of the Revolving Credit Agreement, (b) the Borrower’s failure to comply with Section 6.14(b)(ii) of the Revolving Credit Agreement on or prior to the Second Amendment Effective Date and (c) the Borrower’s failure to comply with the minimum Asset Coverage Ratio (as defined in the Revolving Credit Agreement) requirement as set forth in Section 6.21 of the Revolving Credit Agreement with respect to the fiscal quarter ended March 31, 2020 (such Events of Default being referred to herein as the “Designated First Lien Cross-Defaults”, and together with the Designated Second Lien Defaults, the “Designated Events of Default”).

 

 

 

 

H.     The Borrower has requested, and the Administrative Agent and the Lenders party hereto have agreed, subject to the terms and conditions hereof, (i) to waive the Designated Events of Default and (ii) amend the Credit Agreement, in each case as set forth herein.

 

I.     The Borrower and the Guarantors wish to reaffirm their guarantees of and liens supporting the Obligations as amended by this Agreement.

 

THEREFORE, in fulfillment of the foregoing, the Borrower, the Guarantors, the Administrative Agent, and the undersigned Lenders hereby agree as follows:

 

Section 1.     Definitions; References. All capitalized terms not otherwise defined in this Agreement that are defined in the Credit Agreement shall have the meanings assigned to such terms by the Credit Agreement.

 

Section 2.     Waiver. Notwithstanding any provisions in the Credit Agreement and the other Loan Documents to the contrary, upon the satisfaction of the conditions specified in Section 7 of this Agreement, but effective for all purposes as of the Second Amendment Effective Date, subject to the terms and conditions of this Agreement, each of the undersigned Lenders and the Administrative Agent hereby (a) permanently waives each of the Designated Events of Default and (b) agrees not to charge default interest with respect to the Designated Events of Default so long as each of the 2019 Audited Financials and the Q1 2020 Financial Statements are delivered to the Administrative Agent and each Lender no later than 30 days after the Second Amendment Effective Date (as defined below). The waiver by the Lenders described in this Section 2 is limited to the extent described above and shall not be construed to be a waiver of any other claim arising out of the same or similar facts as the Designated Events of Default, or to be a waiver of Sections 8.06(a), 8.06(b), 8.12, 9.14(b)(ii) or Section 9.19 of the Credit Agreement for any defaults other than the Designated Events of Default, or otherwise to be a permanent waiver of any provision of the Credit Agreement or any other terms, provisions, covenants, warranties or agreements contained in any Loan Document. The Administrative Agent and the Lenders reserve the right to exercise any rights and remedies available to them in connection with any other present or future Defaults or Events of Default under any Loan Document. The description herein of the Designated Events of Default is based upon the information available to the Administrative Agent and the Lenders on or prior to the date hereof and shall not be deemed to exclude the existence of any other Defaults or Events of Default. The failure of the Administrative Agent or the Lenders to give notice to any Loan Party of any such other Defaults or Events of Default is not intended to be and shall not be a waiver thereof. Each of the Loan Parties acknowledges that any failure of the Administrative Agent or any Lender at any time or times hereafter to require strict performance by any Loan Party of any provision of the Credit Agreement and each other Loan Document shall not waive, affect or diminish any right of the Administrative Agent or any Lender to thereafter demand strict compliance therewith.

 

Section 3.     Amendments to Credit Agreement.

 

(a)      the Credit Agreement is hereby amended and restated to read in its entirety as set forth in Annex I hereto; and

 

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(b)     a new Exhibit M (Form of Excess Cash Certificate) in the form of Exhibit M hereto is added to the Credit Agreement in the appropriate order therein.

 

Section 4.     Junior Representative Consent. The Administrative Agent, as the Junior Representative under the Intercreditor Agreement, in connection with Section 5.03(a) of the Intercreditor Agreement, hereby consents to the amendment and modification of the Senior Debt Documents to limit cash payments of interest and certain fees under the Senior Secured Term Loan Agreement as effected pursuant to the First Lien Amendment (as defined in Section 8 below).  The consent described in this Section 4 is limited to the extent described above and shall not be construed to be a consent to or waiver of any provision of the Intercreditor Agreement or any other terms, provisions, covenants, warranties or agreements contained in the Credit Agreement or any other Loan Document.

 

Section 5.     Reaffirmation of Liens.

 

(a)     Each of the Borrower and each Guarantor (i) is party to certain Security Instruments securing and supporting the Borrower’s and Guarantors’ obligations under the Loan Documents, (ii) represents and warrants that according to their terms the Security Instruments will continue in full force and effect to secure the Borrower’s and Guarantors’ obligations under the Loan Documents, as the same may be amended, supplemented, or otherwise modified (including by this Agreement), and (iii) acknowledges, represents, and warrants that the liens and security interests created by the Security Instruments are valid and subsisting and create an Acceptable Security Interest in the Collateral to secure the Borrower’s and Guarantors’ obligations under the Loan Documents, as the same may be amended, supplemented, or otherwise modified (including by this Agreement).

 

(b)     The delivery of this Agreement does not indicate or establish a requirement that any Guaranty or Security Instrument requires the Borrower’s or any Guarantor’s approval of amendments to the Credit Agreement.

 

Section 6.     Reaffirmation of Guaranty. Each Guarantor hereby ratifies, confirms, and acknowledges that its obligations under the Guaranty are in full force and effect and that such Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of all of the Obligations, as such Obligations may have been amended by this Agreement. Each Guarantor hereby acknowledges that its execution and delivery of this Agreement do not indicate or establish an approval or consent requirement by such Guarantor under the Guaranty in connection with the execution and delivery of amendments, modifications or waivers to the Credit Agreement, the Notes or any of the other Loan Documents.

 

Section 7.     Representations and Warranties. Each of the Borrower and each Guarantor represents and warrants to the Administrative Agent and the Lenders that:

 

(a)     the representations and warranties set forth in the Credit Agreement, the Guaranties and in the other Loan Documents are true and correct in all material respects as of the date of this Agreement (except to the extent such representations and warranties relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that such materiality qualifier shall not apply if such representation or warranty is already subject to a materiality qualifier in the Credit Agreement or such other Loan Document;

 

(b)     (i) the execution, delivery, and performance of this Agreement are within the corporate, limited liability company or other power and authority of the Borrower or such Guarantor, as applicable, and have been duly authorized by appropriate proceedings and (ii) this Agreement constitutes a legal, valid, and binding obligation of the Borrower or such Guarantor, as applicable, enforceable against the Borrower or such Guarantor in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity; and

 

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(c)     as of the effectiveness of this Agreement and after giving effect thereto, no Default or Event of Default (other than the Designated Events of Default) shall have occurred and be continuing.

 

Section 8.     Effectiveness. This Agreement shall become effective and enforceable against the parties hereto, upon the occurrence of the following conditions precedent (such date being the “Second Amendment Effective Date”):

 

(a)     The Administrative Agent shall have received multiple original counterparts, as requested by the Administrative Agent, of this Agreement duly and validly executed and delivered by duly authorized officers of the Borrower, the Guarantors, the Administrative Agent and each Lender.

 

(b)     The representations and warranties in this Agreement shall be true and correct before and after giving effect to this Agreement.

 

(c)     No Default or Event of Default (other than the Designated Events of Default) shall have occurred and be continuing.

 

(d)     (i) the Administrative Agent shall have received a copy of a fully executed waiver and amendment dated as of the date hereof under the Revolving Credit Agreement among the Borrower, the other Credit Parties, the lenders party to the Revolving Agreement, and Société Générale, as administrative agent and issuing lender, which waiver and amendment shall (A) waive all defaults caused by or corresponding to the Designated Events of Default under and pursuant to the Revolving Credit Agreement, (B) include amendments to the Revolving Credit Agreement corresponding to those made pursuant to this Agreement and (C) otherwise be in a form satisfactory to the Administrative Agent in its sole discretion (the “First Lien Amendment”), (ii) the First Lien Amendment shall be effective or shall become effective on the Second Amendment Effective Date substantially simultaneously with this Agreement and (iii) the Administrative Agent shall have received a consent duly executed by the requisite number of Approved RBL Lenders under Section 5.03(b) of the Intercreditor Agreement in form and substance satisfactory to the Administrative Agent, which consent shall permit the amendment contemplated by this Agreement pursuant to the terms of the Intercreditor Agreement.

 

(e)     The Administrative Agent shall have received such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection herewith.

 

(f)     The Borrower shall have paid all other costs, expenses, and fees which have been invoiced and are payable pursuant to Section 12.04 of the Credit Agreement or any other written agreement.

 

Section 9.     Effect on Loan Documents. Except as amended hereby, the Credit Agreement and the Loan Documents remain in full force and effect as originally executed, and, other than as set forth in Section 2, nothing herein shall act as a waiver of any of the Administrative Agent’s or Lenders’ rights under the Loan Documents, as amended. This Agreement is a Loan Document for the purposes of the provisions of the other Loan Documents. Without limiting the foregoing, any breach of representations, warranties, and covenants under this Agreement shall be a Default or Event of Default under other Loan Documents.

 

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Section 10.     RELEASE. THE BORROWER ACKNOWLEDGES THAT ON THE DATE HEREOF ALL OBLIGATIONS ARE PAYABLE WITHOUT DEFENSE, OFFSET, COUNTERCLAIM OR RECOUPMENT. IN ADDITION, EACH OF THE LOAN PARTIES (FOR THEMSELVES AND THEIR RESPECTIVE SUCCESSORS, AGENTS, ASSIGNS, TRANSFEREES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, ATTORNEYS AND AGENTS) HEREBY RELEASES ANY AND ALL CLAIMS, CAUSES OF ACTION OR OTHER DISPUTES IT MAY HAVE AGAINST THE ADMINISTRATIVE AGENT, ANY OF THE LENDERS, LEGAL COUNSEL TO THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS, CONSULTANTS HIRED BY ANY OF THE FOREGOING, OR ANY OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OF ANY KIND OR NATURE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH, THE CREDIT AGREEMENT, THE SECURITY AGREEMENTS OR THE LOAN DOCUMENTS, IN EACH CASE WHICH MAY HAVE ARISEN ON OR BEFORE THE DATE OF THIS AGREEMENT. EACH OF THE LOAN PARTIES HEREBY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND HAS CONFERRED WITH ITS COUNSEL AND ADVISORS REGARDING ITS CONTENT, INCLUDING THIS SECTION 10, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT, AND HEREBY AGREES TO WAIVE ANY CLAIM THAT THE TERMS OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE RELEASES CONTAINED HEREIN) ARE INVALID OR OTHERWISE UNENFORCEABLE.

 

Section 11.     Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York.

 

Section 12.     Miscellaneous.

 

(a)     Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original. Delivery of this Agreement by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

(b)     No Oral Agreement. This AGREEMENT and the other Loan Documents represent the final agreement among 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 among the parties.

 

(c)     Payment of Expenses. The Borrower agrees to pay or reimburse the Administrative Agent for all of its out-of-pocket costs and expenses incurred in connection with this Agreement, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable fees, charges and disbursements of counsel to the Administrative Agent.

 

(d)     Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

(e)     Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

[Remainder of page left blank; signatures follow.]

 

 

 

 

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ex_191766.htm

Exhibit 10.3

 

ANGELO GORDON ENERGY SERVICER, LLC

245 Park Avenue

New York, New York 10167

 

June 25, 2020

 

Abraxas Petroleum Corporation

18803 Meisner Drive

San Antonio, Texas 78258

Attention: Steve Harris, Chief Financial Officer

 

Dear Mr. Harris: 

 

This letter relates to that certain Waiver and Second Amendment to Term Loan Credit Agreement (the “Second Amendment”) dated as of the date of this letter to that Term Loan Credit Agreement dated as of November 13, 2019 among Abraxas Petroleum Corporation (the “Borrower”), the lenders party thereto from time to time, and Angelo Gordon Energy Servicer, LLC (“AGES”), as administrative agent for such Lenders (as amended, supplemented, restated or otherwise modified from time to time, the “Loan Agreement”). Capitalized terms not defined in this letter have the meaning ascribed to them in the Loan Agreement. Section references are to references of the Loan Agreement unless otherwise noted.

 

In connection with the Second Amendment and to induce the Lenders to enter into the Second Amendment, the Borrower agrees as follows:

 

1.     Exit Fee. To pay to the Administrative Agent, for the account of the Lenders, an Exit Fee (the “Exit Fee”) equal to $10,000,000, to be shared by the Lenders ratably in accordance with the aggregate amount of principal of the Loans. The Exit Fee shall be due and payable in cash on the earliest to occur of (a) the Maturity Date, (b) the date the Loans are accelerated or otherwise become due in accordance with Section 10.02 or 10.03 and (c) the date the Loans are paid in full in cash.

 

2.     Warrants.

 

(a)     To issue, within 30 days of the date hereof (or such longer period of time as the Administrative Agent, in its sole discretion, may permit), to the Administrative Agent, for the account of the Lenders as designated by the Administrative Agent, warrants (the “Warrants”) having an exercise price of $0.01 per common share in an amount equal to 19.9% of the issued and outstanding common equity of the Borrower. The Borrower shall use its reasonable best efforts to obtain approval from NASDAQ for the issuance of the Warrants and, if required by NASDAQ, the Borrower’s shareholders. Any changes to the terms of the Warrants requested or required by NASDAQ in connection with obtaining such approvals shall be subject to the approval of the Administrative Agent acting in its sole discretion. The Warrants shall expire on the earliest to occur of (i) the date that is five (5) years after the date on which the Warrants are granted and (ii) that date that is two (2) years after the first date on which the Obligations have been paid in full in cash. The parties agree that the Warrants shall be accompanied by customary demand and piggyback registration rights, shall contain customary anti-dilution provisions and other protective rights in favor of the Lenders and that they shall cooperate in good faith to structure the warrants in a tax efficient manner for all parties. The terms of the Warrants shall otherwise be satisfactory in form and substance to the Administrative Agent in its sole discretion.

 

 

 

 

(b)      If the Warrants cannot be issued on terms satisfactory to the Administrative Agent in its sole discretion, the Borrower and the Administrative Agent shall negotiate in good faith an alternative financial arrangement that would afford the Administrative Agent, for the account of the Lenders, an economic benefit equivalent in value to the value of the Warrants that would have been issued pursuant to Section 2(a). If the Borrower and the Administrative Agent are unable to agree on the amount of the alternative financial arrangement, the Administrative Agent may initiate an arbitration proceeding before a nationally recognized investment bank or valuation firm selected by the Administrative Agent in its sole discretion to determine such amount. Costs and expenses of the arbitration proceeding shall be borne by the Borrower.

 

(c)     The Borrower represents and warrants to AGES that, (a) prior to the effectiveness of this letter, the board of directors of the Borrower and the Borrower have taken all action necessary to render Nevada Revised Statutes 78.411 through 78.444 (Combinations with Interested Stockholders) inapplicable to the transactions contemplated by this letter and (b) the Borrower does not conduct business in the State of Nevada either directly or through an affiliated corporation.

 

3.     Governance. To use commercially reasonably efforts to take such steps as is reasonably necessary to grant the Lenders, to be exercised at the Lenders’ option, either (a) the right to appoint one member to the Borrower’s Board of Directors or (b) Board observation rights reasonably satisfactory to the Administrative Agent. Once such rights are granted, the Lenders can exercise such option any time after execution of the Second Amendment.

 

4.     Abraxas Stock. The common stock of Borrower (the “AXAS Stock”) is publicly held and traded. AGES and its representatives will or may have access to “material inside information” in connection with the Second Amendment, the Loan Agreement or otherwise in the course of dealing between the parties pursuant to the Loan Agreement. AGES also acknowledges that it is familiar with the prohibitions against the use or disclosure of material inside information.

 

5.     Assignment. Neither party may assign any of its rights or delegate any of its obligations (i) under Section 1 or Section 2 hereof other than to an Eligible Assignee or (ii) under Section 3 hereof without the prior written consent of the other party. Any purported assignment or delegation in violation of this Section 5 shall be null and void. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder. This letter agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this letter agreement.

 

6.     Miscellaneous.

 

The Borrower agrees that, once paid, the fees or any part thereof payable hereunder shall not be refundable under any circumstances, except as otherwise agreed in writing. All fees payable hereunder shall be paid in immediately available funds, shall not be subject to reduction by way of withholding, setoff or counterclaim or be otherwise affected by any claim or dispute related to any other matter and shall be in addition to reimbursement of AGES’ expenses. The Borrower agrees that AGES may, in its sole discretion, share all or a portion of any of the fees payable pursuant to this letter with any of the Lenders.

 

It is understood and agreed that this letter shall not constitute or give rise to any obligation to provide any financing. This letter may not be amended or waived except by an instrument in writing signed by each of AGES and the Borrower. This letter shall be governed by, and construed in accordance with, the law of the State of New York. This letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this fee letter by facsimile transmission or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

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The Borrower agrees that this letter and its contents are confidential and may not be disclosed except as required by law or judicial process (it being understood that the Borrower may disclose this letter as part of any required filing with the SEC in connection with the Second Amendment and may disclose constituent elements of the letter or the letter itself in future SEC filings as deemed reasonably necessary by Borrower and its counsel). The provisions of this letter shall survive the funding of the Loan Agreement, and shall remain in full force and effect regardless of whether definitive documentation relating to the Loan Agreement shall be executed and delivered.

 

[Remainder of page intentionally left blank.]

 

 

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