8-K

 

 

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): December 1, 2016 (November 30, 2016)

 

 

MEMORIAL PRODUCTION PARTNERS LP

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   001-35364   90-0726667

(State or Other Jurisdiction

of Incorporation or Organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

500 Dallas Street, Suite 1600

Houston, Texas

  77002
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (713) 490-8900

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

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:

 

  Written communications 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 communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

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

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

First Amendment to Limited Waiver

As previously disclosed on November 1, 2016, in connection with the interest payment default on the 2021 Notes (as defined below), Memorial Production Partners LP (the “Partnership”), Memorial Production Operating LLC (“Operating LLC”), certain subsidiaries of the Partnership, Wells Fargo Bank, National Association, as administrative agent for the Lenders (the “Administrative Agent”), and the lenders consenting thereto, entered into the Limited Waiver and Twelfth Amendment thereto (as amended, the “Limited Waiver”) with respect to the Credit Agreement, dated as of December 14, 2011, by and among the Partnership, the Operating LLC, the Administrative Agent and the other agents and lenders party thereto from time to time.

On November 30, 2016, the Partnership entered into the First Amendment to Limited Waiver (the “Waiver Amendment”), which extends the outside date of the limited waiver period under the Limited Waiver from November 30, 2016 to December 16, 2016.

A copy of the Waiver Amendment is filed as Exhibit 10.1 hereto and incorporated herein by reference. The above description of the Waiver Amendment is qualified in its entirety by the full text of such exhibit.

Notes Forbearance

On November 30, 2016, the Partnership entered into (i) a Forbearance (the “2021 Notes Forbearance”) among the Partnership, Memorial Production Finance Corporation, a Delaware corporation (“Finance Corp”), certain guarantors party thereto, and certain beneficial owners and/or investment advisors or managers of discretionary accounts for the holders or beneficial owners (the “2021 Holders”) of 51.7% of the aggregate principal amount of the Partnership’s 7.625% senior notes due 2021 (the “2021 Notes”) and (ii) a Forbearance (the “2022 Notes Forbearance” and, together with the 2021 Notes Forbearance, the “Forbearances”) among the Partnership, Finance Corp, certain guarantors party thereto, and certain beneficial owners and/or investment advisors or managers of discretionary accounts for the holders or beneficial owners (the “2022 Holders”) of 69% of the aggregate principal amount of the Partnership’s 6.875% senior notes due 2022 (the “2022 Notes”).

The 2021 Notes were issued pursuant to that certain Indenture, dated as of April 17, 2013 (as subsequently amended, modified or supplemented, the “2021 Indenture”), among the Partnership, the guarantors party thereto and Wilmington Trust National Association, as successor trustee (the “Trustee”). The 2022 Notes were issued pursuant to that certain Indenture, dated as of July 17, 2014 (as subsequently amended, modified or supplemented, the “2022 Indenture”), among the Partnership, the guarantors party thereto and the Trustee.

Pursuant to each Forbearance, among other provisions, each 2021 Holder and 2022 Holder agreed that during the “Forbearance Period” (as defined below), subject to certain conditions, it will not enforce, or otherwise take any action to direct enforcement of, any of the rights and remedies available to the 2021 Holders, the 2022 Holders or the Trustee, as applicable, including, without limitation, any action to accelerate, or join in any request for acceleration of, the 2021 Notes or the 2022 Notes, solely with respect to the failure to make the interest payment due on November 1, 2016 on the 2021 Notes, and the subsequent default for 30 days in such payment, which constitutes an event of default under the 2021 Indenture (the “Interest Default”) and may result in a cross default under the 2022 Indenture (the “Cross Default”). The “Forbearance Period” begins on November 30, 2016 and ends on the earliest to occur of (a) 11:59 p.m. (New York City time) on December 7, 2016, (b) the occurrence of any event of default under the applicable indenture, other than the Interest Default or the Cross Default, as applicable, and (c) two (2) calendar days following the Partnership’s receipt of notice from any 2021 Holder or 2022 Holder of any breach of the conditions or agreements set forth in the 2021 Notes Forbearance or the 2022 Notes Forbearance (which breach remains uncured).

A copy of each of the 2021 Notes Forbearance and the 2022 Notes Forbearance is filed as Exhibit 10.2 and Exhibit 10.3 hereto, respectively, and incorporated herein by reference. The above description of the 2021 Notes Forbearance and the 2022 Notes Forbearance is qualified in its entirety by the full text of such exhibits.


Item 7.01. Regulation FD Disclosure.

On December 1, 2016, the Partnership issued a press release announcing entry into the Waiver Amendment, the 2021 Notes Forbearance and the 2022 Notes Forbearance, as described in Item 1.01 of this Current Report on Form 8-K. A copy of the press release is furnished as Exhibit 99.1 hereto.

The information in this Item 7.01, including the attached Exhibit 99.1 is being “furnished” pursuant to General Instruction B.2 of Form 8-K and shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any Partnership filing under the Securities Act of 1933, as amended, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

 

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit Number

  

Description

10.1    First Amendment to Limited Waiver, dated as of November 30, 2016, among Memorial Production Operating LLC, Memorial Production Partners LP, certain other guarantors and lenders and Wells Fargo Bank, National Association, as administrative agent for the lenders
10.2    Forbearance dated as of November 30, 2016, among Memorial Production Partners LP, Memorial Production Finance Corporation, certain guarantors party thereto, and the 2021 Holders
10.3    Forbearance dated as of November 30, 2016, among Memorial Production Partners LP, Memorial Production Finance Corporation, certain guarantors party thereto, and the 2022 Holders
99.1    Press release dated December 1, 2016


SIGNATURES

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

 

    MEMORIAL PRODUCTION PARTNERS LP
  By:   

Memorial Production Partners GP LLC,

its general partner

Date: December 1, 2016   By:  

/s/ Jason M. Childress

    Jason M. Childress
    Vice President, General Counsel & Corporate Secretary


EXHIBIT INDEX

 

Exhibit Number

  

Description

10.1    First Amendment to Limited Waiver, dated as of November 30, 2016, among Memorial Production Operating LLC, Memorial Production Partners LP, certain other guarantors and lenders and Wells Fargo Bank, National Association, as administrative agent for the lenders
10.2    Forbearance dated as of November 30, 2016, among Memorial Production Partners LP, Memorial Production Finance Corporation, certain guarantors party thereto, and the 2021 Holders
10.3    Forbearance dated as of November 30, 2016, among Memorial Production Partners LP, Memorial Production Finance Corporation, certain guarantors party thereto, and the 2022 Holders
99.1    Press release dated December 1, 2016
EX-10.1

Exhibit 10.1

EXECUTION VERSION

FIRST AMENDMENT TO LIMITED WAIVER

This FIRST AMENDMENT TO LIMITED WAIVER (this “Agreement”), dated as of November 30, 2016 (the “Amendment Effective Date”), is among Memorial Production Operating LLC, a limited liability company formed under the laws of the State of Delaware (the “Borrower”); Memorial Production Partners LP, a limited partnership formed under the laws of the State of Delaware (the “Parent”); each of the other undersigned guarantors (together with the Borrower and the Parent, collectively, the “Loan Parties”); each of the Lenders that is a signatory hereto (each, a “Consenting Lender” and, collectively, the “Consenting Lenders”); 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 Credit Agreement, dated as of December 14, 2011 (as amended, restated, amended and 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 Borrower, the Parent, the other Loan Parties, the Administrative Agent and certain Lenders entered into that certain Limited Waiver and Twelfth Amendment to Credit Agreement, dated as of November 1, 2016 (the “Original Limited Waiver”), pursuant to which the Administrative Agent and the Lenders agreed to a limited waiver of the Prospective Defaults (as defined in the Original Limited Waiver) for the duration of the period commencing on the Waiver Effective Date (as defined in the Original Limited Waiver) and ending on November 30, 2016 at 5:00 p.m., New York City time (the “Original Waiver Period”), upon the terms set forth in the Original Limited Waiver, without waiving any of their other rights or remedies;

C.    The Borrower has requested that the Administrative Agent and the Lenders extend the Original Waiver Period;

D.    The extension of the Original Waiver Period by the Administrative Agent and the Lenders as provided for in this Agreement shall result in direct and tangible benefits to the Borrower and the other Loan Parties;

E.    The Administrative Agent and the Lenders are willing to extend the Original Waiver Period, subject to the terms and conditions set forth herein; and

F.    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 or the Original Limited Waiver, but which is not defined in this Agreement, shall have the meaning ascribed such term in the Credit Agreement or Original Limited Waiver, as applicable.

Section 2.    Amendments to Original Limited Waiver. In reliance on the representations, warranties, covenants, and agreements contained in this Agreement, and subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, the Original Limited Waiver shall be amended as of the Amendment Effective Date in the manner provided in this Section 2.


2.1    Amendment to Section 3 of the Original Limited Waiver. The date “November 30, 2016” in Section 3 of the Original Limited Waiver shall be deleted and replaced with “December 16, 2016”.

2.2    Amendment to Section 3(m) of the Original Limited Waiver. Section 3(m) of the Original Limited Waiver is hereby amended and restated in its entirety to read in full as follows:

(m) Expenses. The Borrower shall pay each Lender’s reasonable and documented out-of-pocket fees and expenses incurred prior to the Amendment Effective Date (as defined in the First Amendment to Limited Waiver, dated as of November 30, 2016 (the “Waiver Amendment”), among the Borrower, the other Loan Parties, the Administrative Agent and the Lenders), in connection with the Eleventh Amendment, October 2016 Borrowing Base Redetermination, this Waiver, and the Waiver Amendment, in an aggregate amount not to exceed $150,000 for all such Lenders, within three Business Days of receipt of an invoice from such Lender.

Section 3.    Conditions Precedent to this Agreement. The effectiveness of the amendments contained in Section 2 hereof is subject to the following:

(a)    The Administrative Agent shall have received counterparts of this Agreement from the Loan Parties and the Majority Lenders.

(b)    (i) All fees and expenses incurred prior to the Amendment Effective Date due and owing to Linklaters LLP, Opportune LLP and Vinson & Elkins LLP and (ii) all out of pocket fees and expenses incurred by any Lender prior to the Amendment Effective Date which are due and owing pursuant to the Original Limited Waiver or this Agreement, in each case invoiced prior to the Amendment Effective Date, shall have been paid or reimbursed by the Borrower.

(c)    No Default (other than the Prospective Defaults), Event of Default (other than the Prospective Defaults) or Borrowing Base Deficiency shall exist immediately prior to or after giving effect to this Agreement.

(d)    The Borrower shall have, and shall have caused the other Loan Parties to, grant to the Administrative Agent as security for the Indebtedness a first-priority Lien interest on additional Oil and Gas Properties of the Loan Parties not already subject to a Lien pursuant to the Security Instruments as required by Section 6 of the Original Limited Waiver.

The Administrative Agent shall notify the Borrower and the Lenders of the effectiveness of this Agreement, and such notice shall be conclusive and binding.

Section 4.    Representations and Warranties; Etc. Each Loan Party hereby affirms, subject to the Prospective Defaults: (a) that as of the date hereof, all of the representations and warranties contained in each Loan Document to which such Loan Party is a party are true and correct in all material respects as though made on and as of the date hereof (unless made as of a specific earlier date, in which case, was true as of such date and except to the extent that any such representation and warranty is qualified by materiality, in which case such representation and warranty shall continue to be true and correct in all respects), (b) no Defaults exist under the Loan Documents or will, after giving effect to this Agreement, exist under the Loan Documents and (c) no Material Adverse Effect has occurred.

 

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Section 5.    Miscellaneous.

5.1.    Confirmation and Effect. The provisions of the Original Limited Waiver (as amended and modified by this Agreement) shall remain in full force and effect in accordance with its terms following the effectiveness of this Agreement. The provisions of each of the Credit Agreement and other Loan Documents shall remain in full force and effect in accordance with its terms following the effectiveness of this Agreement. Each reference in the Original Limited Waiver to “this Waiver”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Original Limited Waiver as amended and modified hereby, and each reference to the Original Limited Waiver in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Original Limited Waiver as amended and modified hereby. This Agreement is a Loan Document for all purposes under the Loan Documents.

5.2.    Ratification and Affirmation of Loan Parties. Each of the Loan Parties hereby expressly (a) acknowledges the terms of this Agreement, (b) ratifies and affirms its obligations under the Guaranty Agreement and the other Loan Documents to which it is a party, as amended and modified hereby, (c) acknowledges, renews and extends its continued liability under the Guaranty Agreement and the other Loan Documents to which it is a party, as amended and modified hereby, (d) ratifies and affirms all Liens granted by it pursuant to the Loan Documents to secure the Indebtedness (except to the extent that such Liens have been released in accordance with the Loan Documents) and (e) agrees that its guarantee under the Guaranty Agreement and the other Loan Documents to which it is a party, as amended and modified hereby, remains in full force and effect with respect to the Indebtedness.

5.3.    Counterparts. This Agreement may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Agreement by facsimile or electronic (e.g., pdf) transmission shall be effective as delivery of a manually executed original counterpart hereof.

5.4.    No Oral Agreement. THIS WRITTEN AGREEMENT, 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

5.5.    Governing Law. THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

5.6.    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 and disbursements of counsel to the Administrative Agent.

5.7.    Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

3


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

5.9.    Release. EACH OF THE LOAN PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUCCESSORS AND ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASING PARTIES”), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THE DATE OF THIS AGREEMENT, NONE OF THE RELEASING PARTIES HAS ANY CLAIMS, CAUSES OF ACTION, DEMANDS OR LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR UNDISPUTED, KNOWN OR UNKNOWN, AGAINST, OR ANY GROUNDS OR CAUSE FOR REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS OR ANY LIENS OR SECURITY INTERESTS OF, IN EACH CASE WHICH ARISE OUT OF OR ARE RELATED TO THE INDEBTEDNESS OR ANY OF THE LOAN DOCUMENTS (EACH, A “RELEASED CLAIM”), THE ADMINISTRATIVE AGENT, THE ISSUING BANK, THE OTHER SECURED PARTIES OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES, OR AGAINST ANY OF THEIR RESPECTIVE 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 AGREEMENT, 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 RELEASED CLAIMS, 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 AMENDMENT 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]

 

4


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed effective as of the date first written above.

 

BORROWER:   MEMORIAL PRODUCTION OPERATING LLC, a Delaware limited liability company
    By:    Memorial Production Partners LP, its sole member
    By:   Memorial Production Partners GP LLC, its general partner
      By:  

/s/ Robert L. Stillwell, Jr.

      Name:    Robert L. Stillwell, Jr.
      Title:   Chief Financial Officer
GUARANTORS:   MEMORIAL PRODUCTION PARTNERS LP, a Delaware limited partnership
    By:   Memorial Production Partners GP LLC, its general partner
      By:  

/s/ Robert L. Stillwell, Jr.

      Name:   Robert L. Stillwell, Jr.
      Title:   Chief Financial Officer
  COLUMBUS ENERGY, LLC, a Delaware limited liability company
    By:   Memorial Production Operating LLC, its sole member
    By:   Memorial Production Partners LP, its sole member
    By:   Memorial Production Partners GP LLC, its general partner
      By:  

/s/ Robert L. Stillwell, Jr.

      Name:   Robert L. Stillwell, Jr.
      Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


WHT ENERGY PARTNERS LLC, a Delaware limited liability company
  By:   Memorial Production Operating LLC, its sole member
  By:    Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:    Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
RISE ENERGY OPERATING, LLC, a Delaware limited liability company
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


RISE ENERGY MINERALS, LLC, a Delaware limited liability company
  By:   Rise Energy Operating, LLC, its sole member
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
RISE ENERGY BETA, LLC, a Delaware limited liability company
  By:    Rise Energy Operating, LLC, its sole member
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:    Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
MEMORIAL PRODUCTION FINANCE CORPORATION, a Delaware corporation
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


WHT CARTHAGE LLC, a Delaware limited liability company
  By:   WHT Energy Partners LLC, its sole member
  By:    Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:    Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
MEMORIAL ENERGY SERVICES LLC, a Delaware limited liability company
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC,
    its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


MEMORIAL MIDSTREAM LLC, a Texas limited liability company
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


SAN PEDRO BAY PIPELINE COMPANY, a California corporation
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
MEMP SERVICES LLC, a Delaware limited liability company
  By   Memorial Production Partners LP, its sole member
  By:    Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:    Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
BETA OPERATING COMPANY, LLC
  By:   Memorial Production Operating LLC, its sole member
  By:   Memorial Production Partners LP, its sole member
  By:   Memorial Production Partners GP LLC, its general partner
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer
MEMORIAL PRODUCTION PARTNERS GP LLC
    By:  

/s/ Robert L. Stillwell, Jr.

    Name:   Robert L. Stillwell, Jr.
    Title:   Chief Financial Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


ADMINISTRATIVE AGENT AND LENDER:

 

  WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank and a Lender
  By:  

/s/ Bryan McDavid

  Name:    Bryan McDavid
  Title:   Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   ZB, N.A. DBA AMEGY BANK, as a Lender
  By:   

/s/ Sam Trail

  Name: Sam Trail
  Title: Senior Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   ASSOCIATED BANK, N.A., as a Lender
  By:  

/s/ Alison K. Tregilgas

  Name: Alison K. Tregilgas
  Title: Senior Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   BARCLAYS BANK PLC, as a Lender
  By:   

/s/ Vanessa Kurbatskiy

  Name: Vanessa Kurbatskiy
  Title: Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   BRANCH BANKING AND TRUST COMPANY, as a Lender
  By:   

/s/ James Giordano

  Name: James Giordano
  Title: Senior Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   BMO HARRIS BANK, N.A., as a Lender
  By:   

/s/ James V. Ducote

  Name: James V. Ducote
  Title: Managing Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CADENCE BANK, N.A., as a Lender
  By:   

/s/ Anthony Blanco

  Name: Anthony Blanco
  Title: Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Lender
  By:   

/s/ Charles D. Mulkeen

  Name: Charles D. Mulkeen
  Title: Executive Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender
  By:   

/s/ Michael Higgins

  Name: Michael Higgins
  Title: Senior Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CARGILL, INCORPORATED, as a Lender
  By:   

/s/ Tyler R. Smith

  Name: Tyler R. Smith
  Title: Authorized Signer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CITIBANK, N.A., as a Lender
  By:   

/s/ Peter T. Baumann

  Name: Peter T. Baumann
  Title: Managing Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CITIZENS BANK, N.A., as a Lender
  By:   

/s/ David W. Stack

  Name: David W. Stack
  Title: Senior Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   COMERICA BANK, as a Lender
  By:   

/s/ Chad Stephenson

  Name: Chad Stephenson
  Title: Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   COMPASS BANK, as a Lender
  By:   

/s/ William H. Douning

  Name: William H. Douning
  Title: Sr. Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
  By:   

/s/ Yuriy A. Tsyganov

  Name: Yuriy A. Tsyganov
  Title: Director
  By:  

/s/ Kathleen Sweeney

  Name: Kathleen Sweeney
  Title: MD

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:     DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
    By:  

/s/ Benjamin Souh

    Name: Benjamin Souh
    Title: Vice President
    By:   

/s/ Marcus Tarkington

    Name: Marcus Tarkington
    Title: Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   GOLDMAN SACHS BANK USA, as a Lender
  By:   

/s/ Eddie Arhagba

  Name: Eddie Arhagba
  Title: Authorized Signatory

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   ING CAPITAL LLC, as a Lender
  By:  

/s/ Josh Strong

  Name: Josh Strong
  Title: Director
  By:   

/s/ Scott Lamoreaux

  Name: Scott Lamoreaux
  Title: Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   JPMORGAN CHASE BANK, N.A., as a Lender
  By:   

/s/ Theresa M. Benson

  Name: Theresa M. Benson
  Title: Authorized Officer

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   NATIXIS, NEW YORK BRANCH, as a Lender
  By:  

/s/ Timothy Polvado

  Name: Timothy Polvado
  Title: Senior Managing Director
  By:   

/s/ B. Le Foyer

  Name: B. Le Foyer
  Title: Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   REGIONS BANK, as a Lender
  By:   

/s/ J. Patrick Carrigan

  Name: J. Patrick Carrigan
  Title: Senior Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   ROYAL BANK OF CANADA, as a Lender
  By:   

/s/ Mark Lumpkin, Jr.

  Name: Mark Lumpkin, Jr.
  Title: Authorized Signatory

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   SANTANDER BANK, N.A., as a Lender
  By:  

/s/ Aidan Lanigan

  Name: Aidan Lanigan
  Title: Senior Vice President
  By:   

/s/ Puiki Lok

  Name: Puiki Lok
  Title: Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   SUNTRUST BANK, as a Lender
  By:   

/s/ William S. Krueger

  Name: William S. Krueger
  Title: First Vice President

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   UBS AG, STAMFORD BRANCH, as a Lender
  By:   

/s/ Denise Bushee

  Name: Denise Bushee
  Title: Associate Director
  By:  

/s/ Darlene Arias

  Name: Darlene Arias
  Title: Director

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]


LENDER:   U.S. BANK NATIONAL ASSOCIATION, as a Lender
  By:   

/s/ Mike Warren

  Name: Mike Warren
  Title: Sr VP

 

[SIGNATURE PAGE TO FIRST AMENDMENT TO LIMITED WAIVER

MEMORIAL PRODUCTION OPERATING LLC]

EX-10.2

Exhibit 10.2

EXECUTION VERSION

FORBEARANCE

FORBEARANCE, dated as of November 30, 2016 (this “Agreement”), by and among Memorial Production Partners LP., a Delaware limited partnership (the “Partnership”), Memorial Production Finance Corporation, a Delaware corporation (together with the Partnership, the “Issuers”), each of the undersigned entities listed as guarantors (the “Guarantors” and, together with the Issuers, the “Note Parties”), and each of the undersigned beneficial owners and/or investment advisors or managers of discretionary accounts for the holders or beneficial owners of the 2021 Notes (as defined below) (collectively, the “Holders”).

WHEREAS, the Issuers are the issuers under that certain Indenture, dated as of April 17, 2013, among the Issuers, the Guarantors and Wilmington Trust, National Association, as successor trustee (the “Trustee”) (as amended, modified or supplemented prior to the date hereof, the “2021 Indenture” and, the notes issued thereunder, the “2021 Notes”);

WHEREAS, the Issuers failed to make the interest payment due on November 1, 2016 on the 2021 Notes as required pursuant to the 2021 Indenture (the “November Interest Payment”), and the default for 30 days in the payment when due of interest on the 2021 Notes constitutes an Event of Default under the 2021 Indenture (such default, the “Interest Default”);

WHEREAS, upon the occurrence of an Event of Default and so long as such Event of Default is continuing, the Trustee or the holders of at least twenty-five percent (25%) in aggregate principal amount of the then outstanding 2021 Notes may declare all of the 2021 Notes to be due and payable immediately, and exercise all other rights and remedies available under the 2021 Indenture;

WHEREAS, the holders of a majority in aggregate principal amount of the then outstanding 2021 Notes may, by written notice to the Trustee, rescind an acceleration if the rescission would not conflict with any judgment or decree;

WHEREAS, the Holders collectively hold a majority in aggregate principal amount of the 2021 Notes outstanding, and have formed an ad hoc group (the “Ad Hoc Group”) for the purposes of entering into restructuring discussions with the Note Parties;

WHEREAS, the Note Parties have requested that the Holders, and the Holders have agreed to, subject to the terms and conditions set forth herein, temporarily forbear from accelerating the 2021 Notes or directing the Trustee to accelerate the 2021 Notes with respect to the Interest Default in order to permit the Note Parties to continue discussions regarding a restructuring transaction; and

WHEREAS, terms used but not otherwise defined herein shall have the meanings given to them in the 2021 Indenture.

NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1. Forbearance.

(a) Subject to the satisfaction of the conditions precedent set forth in Section 3 below and the continued satisfaction of the conditions set forth in Section 4 below, respectively, as of the date hereof, each Holder hereby agrees that during the period beginning on the date hereof and ending on the Forbearance Termination Date (the “Forbearance Period”), it will not enforce, or otherwise take any action to direct enforcement of, any of the rights and remedies available to the Holders (or any registered Holders of Notes) or the


Trustee under the 2021 Indenture or the 2021 Notes or otherwise, including, without limitation, any action to accelerate, or join in any request for acceleration of, the 2021 Notes (“Remedial Action”) under the 2021 Indenture or the 2021 Notes, solely with respect to the Interest Default (such forbearance, the “Forbearance”). As used herein, “Forbearance Termination Date” means the earliest to occur of (a) 11:59 p.m. (New York City time) on December 7, 2016, (b) the occurrence of any Event of Default other than the Interest Default and (c) two (2) calendar days following written notice from any Holder of any breach by any Note Party of any of the conditions or agreements provided in this Agreement (which breach remains uncured during such period).

(b) This Agreement shall in no way be construed to preclude any Holder from acquiring or selling 2021 Notes to the extent permitted by applicable law. However, such Holder shall, automatically and without further action, remain subject to this Agreement with respect to any 2021 Notes so acquired. The foregoing forbearances shall not be construed to impair the ability of the Holders or the Trustee to exercise any rights or remedies under the 2021 Indenture or take any Remedial Action (x) at any time after the Forbearance Period or (y) during the Forbearance Period, for Defaults or Events of Default other than the Interest Default, and, except as provided herein, nothing shall restrict, impair or otherwise affect the exercise of the Holders’ or the Trustee’s rights under this Agreement, the 2021 Indenture or the 2021 Notes.

(c) With respect to the Forbearance, each Holder’s agreements, as provided herein, shall immediately terminate without requirement for any notice, demand or presentment of any kind on the Forbearance Termination Date, and the Note Parties at that time shall be obligated to comply with and perform all terms, conditions and provisions of the 2021 Indenture and the 2021 Notes without giving effect to the Forbearance, and the Trustee and the Holders may at any time thereafter proceed to exercise any and all of their rights and remedies, including, without limitation, their rights and remedies in connection with the Interest Default and any other Defaults or Events of Default under the 2021 Indenture or rights under this Agreement, to the extent continuing.

(d) The Holders hereby request that during the Forbearance Period the Trustee not take, and direct the Trustee not to take, any Remedial Action solely with respect to the Interest Default. The Parties hereto agree that this Agreement may be delivered to the Trustee on any date during the Forbearance Period as a direction contemplated by Sections 6.05 or 6.06 of the Indenture, and that the Holders shall, upon request from the Issuers, provide such further direction to the Trustee as may be necessary to effectuate the intent of the foregoing. In the event that any Person takes any action to declare all of the 2021 Notes immediately due and payable pursuant to Section 6.02 of the 2021 Indenture during the Forbearance Period solely due to the Interest Default, the Holders agree to, by written notice to the Trustee, rescind and cancel such acceleration to the fullest extent permitted under the 2021 Indenture.

Section 2. Representations and Warranties.

By its execution of this Agreement, each Note Party hereby represents and warrants to the Holders that:

(a) Each Note Party has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of each Note Party enforceable against it in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); and

 

2


(b) Neither the execution, delivery or performance by any Note Party of this Agreement, nor compliance by it with the terms and provisions thereof, (i) will contravene any provision of applicable law, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Note Party or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Note Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement, limited partnership agreement or by-laws (or equivalent constitutional, organizational and/or formation documents), as applicable, of any Note Party.

Section 3. Conditions Precedent. The effectiveness of this Agreement and the obligations of the Holders hereunder are subject to the satisfaction, or waiver by the Holders, of the following conditions (the date upon which all such conditions are met, the “Forbearance Effective Date”):

(a) Counterparts. The execution of this Agreement by each Note Party and Holders constituting 51.7% of the outstanding 2021 Notes as of the date hereof.

(b) No Default. No Default or Event of Default other than the Interest Default shall have occurred and be continuing as of the date the condition set forth in Section 3(a) is satisfied.

(c) Professional Fees. All fees and expenses incurred and invoiced prior to the Forbearance Effective Date due and owing to Davis Polk & Wardwell LLP or Miller Buckfire & Co., LLC, as advisors to the Ad Hoc Group, shall have been paid or reimbursed by the Note Parties.

Section 4. Forbearance Continuing Conditions. The continued satisfaction of each of the following shall be a condition to the Forbearance:

(a) No voluntary petition for relief under any Bankruptcy Law is filed by any Note Party; and

(b) No involuntary petition for relief under any Bankruptcy Law is filed against the Issuer or any Note Party that would constitute a Significant Subsidiary.

Section 5. Representation of the Holders. Each Holder severally (but not jointly) represents that, as of the date hereof, it is the beneficial owner and/or investment advisor or manager of discretionary accounts for the holders or beneficial owners of the aggregate principal amount of the 2021 Notes set forth on the signature page hereof beneath its name, and has all necessary power and authority to enter into this Agreement, grant the Forbearance with respect to such Notes and perform its obligations hereunder.

Section 6. Confidentiality. Each of the Note Parties shall not disclose to any person or entity the Holders’ holdings set forth on their respective signature pages to this Agreement or otherwise disclose the Holders’ holdings information (collectively, the “Holder Information”) except: (1) in any legal proceeding relating to this Agreement; provided that the relevant Note Party shall use its reasonable best efforts to maintain the confidentiality of such Holder Information in the context of any such proceeding; (2) to the extent required by law; and (3) in response to a subpoena, discovery request, or a request from a government agency, regulatory authority or securities exchange for information regarding Holder Information or the information contained therein; provided, however, that each of the Note Parties will, to the extent permitted by applicable law or regulation, provide any such Holder with prompt written notice of any such request or requirement so that such Holder may seek, at the Note Parties’ expense, a protective

 

3


order or other appropriate remedy and each Note Party will fully cooperate with such Holder’s efforts to obtain same. Notwithstanding anything to the contrary in this Section 6, the Note Parties may: (i) disclose the aggregate principal amount of Notes held by the Holders executing this Agreement, taken as a whole; and (ii) to effectuate and evidence the direction to the Trustee contained herein, at any time, and from time to time, during the Forbearance Period, provide the Trustee with an executed copy of this Agreement that includes the individual signature pages of each of the Holders.

Section 7. Notice of Default. The Note Parties shall provide notice to the Holders, through Davis Polk & Wardwell LLP, as soon as possible, but in any event within one (1) Business Day, of the occurrence of any breach of this agreement or additional Default or Event of Default, which notice shall state that such event occurred and set forth, in reasonable detail, the facts and circumstances that gave rise to such event. Such notice shall be delivered by electronic mail to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

Attn: Lawrence E. Wieman (lawrence.wieman@davispolk.com), Brian M.

Resnick (brian.resnick@davispolk.com) and

Angela M. Libby (angela.libby@davispolk.com)

Section 8. Effect on the 2021 Indenture. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Holders or the Trustee under the 2021 Indenture or the 2021 Notes, and shall not, except as expressly set forth herein, alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the 2021 Indenture or the 2021 Notes or any other provision of the 2021 Indenture or the 2021 Notes, all of which are ratified and affirmed in all respects and shall continue in full force and effect.

Section 9. Payment of Expenses. The Note Parties agree to pay all reasonable and documented fees and expenses incurred by the Ad Hoc Group, and expenses of their respective legal and financial advisors, but no more than one legal counsel, which shall be Davis Polk & Wardwell LLP, one local counsel (if necessary), and one financial advisor, which shall be Miller Buckfire & Co., LLC, and in each case subject to and in accordance with the terms and conditions of any separate engagement or similar letter with any such advisor.

Section 10. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

Section 11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES THAT WOULD PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Section 12. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 

4


Section 13. Relationship of Parties; No Third Party Beneficiaries. Nothing in this Agreement shall be construed to alter the existing debtor-creditor relationship between the Note Parties and the Holders or the Trustee. This Agreement is not intended, nor shall it be construed, to create a partnership or joint venture relationship between or among any of the parties hereto. No person other than a party hereto is intended to be a beneficiary hereof and no person other than a party hereto shall be authorized to rely upon or enforce the contents of this Agreement.

Section 14. Entire Agreement; Modification of Agreement; Verbal Agreements Not Binding. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all other discussions, promises, representations, warranties, agreements and understandings between the parties with respect thereto. This Agreement may not be modified, altered or amended except by an agreement in writing signed by a duly authorized representative of each Note Party and Holders holding a majority of principal amount of the outstanding 2021 Notes held by Holders that are parties hereto as of the date of any such modification, alteration or amendment to this Agreement.

Section 15. Non-Waiver of Default. Neither this Agreement nor any forbearance hereunder shall be deemed a waiver of or consent to the Interest Default or to any other Default or Event of Default of any other term or provision of the 2021 Indenture unless and until the Issuers pay the November Interest Payment together with all defaulted interest thereon, including to the extent lawful, interest payable on the defaulted interest to, but not including, the payment date thereof, at which time this Agreement shall be deemed a full and complete waiver of any default or Event of Default relating solely to the November Interest Payment. The Parties hereto agree that this Agreement may be delivered to the Trustee on or after the date, if any, on which such November Interest Payment is made, as written notice of such waiver contemplated by Section 6.04 of the Indenture and that the Holders shall, upon request from the Issuers, provide such further written notice to the Trustee as may be necessary to effectuate the intent of the foregoing. Each of the Note Parties acknowledges that the Trustee and the Holders have made no representations as to what actions, if any, they will take after the Forbearance Period, and the Trustee and each Holder reserves any and all rights, remedies, and claims it has (after giving effect hereto) with respect to the Interest Default and each other Default or Event of Default that may occur.

Section 16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 17. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable, in each case, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon any such determination of invalidity, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 18. Release. EACH OF THE NOTE PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUCCESSORS AND ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASING PARTIES”), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THE DATE OF THIS AGREEMENT, NONE OF THE RELEASING PARTIES HAS ANY CLAIMS, CAUSES OF ACTION, DEMANDS OR LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR

 

5


UNDISPUTED, KNOWN OR UNKNOWN, AGAINST, OR ANY GROUNDS OR CAUSE FOR REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS, IN EACH CASE WHICH ARISE OUT OF OR ARE RELATED TO THE 2021 NOTES OR THE 2021 INDENTURE (BUT, FOR THE AVOIDANCE OF DOUBT, EXCLUDING CLAIMS, CAUSES OF ACTION, DEMANDS OR LIABILITIES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT) (EACH, A “RELEASED CLAIM”) AGAINST THE HOLDERS OR AGAINST ANY OF THE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES OF ANY OF THE FOREGOING, (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASED PARTIES”). IN PARTIAL CONSIDERATION FOR THE AGREEMENT OF THE HOLDERS PARTY HERETO TO ENTER INTO THIS AGREEMENT, 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 RELEASED CLAIMS, 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 FORBEARANCE 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]

 

6


EXECUTION VERSION

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

NOTE PARTIES
MEMORIAL PRODUCTION PARTNERS GP LLC
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMORIAL PRODUCTION PARTNERS LP
By:   Memorial Production Partners GP LLC
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMORIAL PRODUCTION FINANCE CORPORATION
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMP SERVICES LLC
MEMORIAL PRODUCTION OPERATING LLC
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

 

[Signature Page to the 2021 Notes Forbearance]


EXECUTION VERSION

 

MEMORIAL ENERGY SERVICES LLC
MEMORIAL MIDSTREAM LLC
BETA OPERATING COMPANY, LLC
COLUMBUS ENERGY, LLC
RISE ENERGY OPERATING, LLC
WHT ENERGY PARTNERS LLC
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
RISE ENERGY MINERALS, LLC
RISE ENERGY BETA, LLC
By:   Rise Energy Operating, LLC,
  its sole member
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
WHT CARTHAGE LLC
By:   WHT Energy Partners LLC,
  its sole member
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

 

[Signature Page to the 2021 Notes Forbearance]


SAN PEDRO BAY PIPELINE COMPANY
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

 

[Signature Page to the 2021 Notes Forbearance]


HOLDERS
BRIGADE CAPITAL MANAGEMENT LP, on behalf of funds and accounts managed by it
By:  

/s/ Scott Hoffman

Name:   Scott Hoffman
Title:   Senior Analyst
Principal Amount of 2021 Notes held: $                 
CITADEL EQUITY FUND LTD
By: Citadel Advisors LLC, its Portfolio Manager
By:  

/s/ Christopher L. Ramsay

Name:   Christopher L. Ramsay
Title:   Authorized Signatory
Principal Amount of 2021 Notes held: $                 
FIR TREE INC (on behalf of certain investment
Funds under management)
By:  

/s/ Evan Lederman

Name:   Evan Lederman
Title:   Authorized Signatory
Principal Amount of 2021 Notes held: $                 
FRANKLIN ADVISERS, INC., as investment manager on behalf of certain funds and accounts
By:  

/s/ Glenn Voyles

Name:   Glenn Voyles
Title:   VP – Director of Portfolio Management
Principal Amount of 2021 Notes held: $                 
NNIP GLOBAL HIGH YIELD
By:  

/s/ Timothy Dowling

Name:   Timothy Dowling
Title:   Lead PM, Global High Yield
Principal Amount of 2021 Notes held: $                 

 

[Signature Page to the 2021 Notes Forbearance]


TRUST ASSET MANAGEMENT LLC
By:  

/s/ Mark Shinder

Name:   Mark Shinder
Title:   President and CIO
Principal Amount of 2021 Notes held: $                 

 

[Signature Page to the 2021 Notes Forbearance]

EX-10.3

Exhibit 10.3

EXECUTION VERSION

FORBEARANCE

FORBEARANCE, dated as of November 30, 2016 (this “Agreement”), by and among Memorial Production Partners LP., a Delaware limited partnership (the “Partnership”), Memorial Production Finance Corporation, a Delaware corporation (together with the Partnership, the “Issuers”), each of the undersigned entities listed as guarantors (the “Guarantors” and, together with the Issuers, the “Note Parties”), and each of the undersigned beneficial owners and/or investment advisors or managers of discretionary accounts for the holders or beneficial owners of the 2022 Notes (as defined below) (collectively, the “Holders”).

WHEREAS, the Issuers are the issuers under (i) that certain Indenture, dated as of July 17, 2014, among the Issuers, the Guarantors and Wilmington Trust, National Association, as successor trustee (the “Trustee”) (as amended, modified or supplemented prior to the date hereof, the “2022 Indenture” and, the notes issued thereunder, the “2022 Notes”) and (ii) that certain Indenture dated as of April 17, 2013, among the Issuers, the Guarantors and Wilmington Trust, National Association, as successor trustee (as amended, modified or supplemented to the date hereof, the “2021 Indenture”, and the notes issued thereunder, the “2021 Notes”);

WHEREAS, the Issuers failed to make the interest payment due on November 1, 2016 on the 2021 Notes as required pursuant to the 2021 Indenture (the “November Interest Payment”), and the default for 30 days in the payment when due of interest on the 2021 Notes may constitute an Event of Default under the 2022 Indenture (such default, the “Cross Default”);

WHEREAS, upon the occurrence of an Event of Default and so long as such Event of Default is continuing, the Trustee or the holders of at least twenty-five percent (25%) in aggregate principal amount of the then outstanding 2022 Notes may declare all of the 2022 Notes to be due and payable immediately, and exercise all other rights and remedies available under the 2022 Indenture;

WHEREAS, the holders of a majority in aggregate principal amount of the then outstanding 2022 Notes may, by written notice to the Trustee, rescind an acceleration if the rescission would not conflict with any judgment or decree;

WHEREAS, the Holders collectively hold a majority in aggregate principal amount of the 2022 Notes outstanding, and have formed an ad hoc group (the “Ad Hoc Group”) for the purposes of entering into restructuring discussions with the Note Parties;

WHEREAS, the Note Parties have requested that the Holders, and the Holders have agreed to, subject to the terms and conditions set forth herein, temporarily forbear from accelerating the 2022 Notes or directing the Trustee to accelerate the 2022 Notes with respect to the Cross Default in order to permit the Note Parties to continue discussions regarding a restructuring transaction; and

WHEREAS, terms used but not otherwise defined herein shall have the meanings given to them in the 2022 Indenture.

NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:


Section 1. Forbearance.

(a) Subject to the satisfaction of the conditions precedent set forth in Section 3 below and the continued satisfaction of the conditions set forth in Section 4 below, respectively, as of the date hereof, each Holder hereby agrees that during the period beginning on the date hereof and ending on the Forbearance Termination Date (the “Forbearance Period”), it will not enforce, or otherwise take any action to direct enforcement of, any of the rights and remedies available to the Holders (or any registered Holders of Notes) or the Trustee under the 2022 Indenture or the 2022 Notes or otherwise, including, without limitation, any action to accelerate, or join in any request for acceleration of, the 2022 Notes (“Remedial Action”) under the 2022 Indenture or the 2022 Notes, solely with respect to the Cross Default (such forbearance, the “Forbearance”). As used herein, “Forbearance Termination Date” means the earliest to occur of (a) 11:59 p.m. (New York City time) on December 7, 2016, (b) the occurrence of any Event of Default other than the Cross Default and (c) two (2) calendar days following written notice from any Holder of any breach by any Note Party of any of the conditions or agreements provided in this Agreement (which breach remains uncured during such period).

(b) This Agreement shall in no way be construed to preclude any Holder from acquiring or selling 2022 Notes to the extent permitted by applicable law. However, such Holder shall, automatically and without further action, remain subject to this Agreement with respect to any 2022 Notes so acquired. The foregoing forbearances shall not be construed to impair the ability of the Holders or the Trustee to exercise any rights or remedies under the 2022 Indenture or take any Remedial Action (x) at any time after the Forbearance Period or (y) during the Forbearance Period, for Defaults or Events of Default other than the Cross Default, and, except as provided herein, nothing shall restrict, impair or otherwise affect the exercise of the Holders’ or the Trustee’s rights under this Agreement, the 2022 Indenture or the 2022 Notes.

(c) With respect to the Forbearance, each Holder’s agreements, as provided herein, shall immediately terminate without requirement for any notice, demand or presentment of any kind on the Forbearance Termination Date, and the Note Parties at that time shall be obligated to comply with and perform all terms, conditions and provisions of the 2022 Indenture and the 2022 Notes without giving effect to the Forbearance, and the Trustee and the Holders may at any time thereafter proceed to exercise any and all of their rights and remedies, including, without limitation, their rights and remedies in connection with the Cross Default and any other Defaults or Events of Default under the 2022 Indenture or rights under this Agreement, to the extent continuing.

(d) The Holders hereby request that during the Forbearance Period Trustee not take, and direct the Trustee not to take any Remedial Action solely with respect to the Cross Default. The Parties hereto agree that this Agreement may be delivered to the Trustee on any date during the Forbearance Period as a direction contemplated by Sections 6.05 or 6.06 of the Indenture, and that the Holders shall, upon request from the Issuers, provide such further direction to the Trustee as may be necessary to effectuate the intent of the foregoing. In the event that any Person takes any action to declare all of the 2022 Notes immediately due and payable pursuant to Section 6.02 of the 2022 Indenture during the Forbearance Period solely due to the Cross Default, the Holders agree to, by written notice to the Trustee, rescind and cancel such acceleration to the fullest extent permitted under the 2022 Indenture.

 

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Section 2. Representations and Warranties.

By its execution of this Agreement, each Note Party hereby represents and warrants to the Holders that:

(a) Each Note Party has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of each Note Party enforceable against it in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); and

(b) Neither the execution, delivery or performance by any Note Party of this Agreement, nor compliance by it with the terms and provisions thereof, (i) will contravene any provision of applicable law, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Note Party or any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Note Party or any of its Subsidiaries is a party or by which it or any its property or assets is bound or to which it may be subject, or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement, limited partnership agreement or by-laws (or equivalent constitutional, organizational and/or formation documents), as applicable, of any Note Party.

Section 3. Conditions Precedent. The effectiveness of this Agreement and the obligations of the Holders hereunder are subject to the satisfaction, or waiver by the Holders, of the following conditions (the date upon which all such conditions are met, the “Forbearance Effective Date”):

(a) Counterparts. The execution of this Agreement by each Note Party and Holders constituting 69% of the outstanding 2022 Notes as of the date hereof.

(b) No Default. No Default or Event of Default other than the Cross Default shall have occurred and be continuing as of the date the condition set forth in Section 3(a) is satisfied.

(c) Professional Fees. All fees and expenses incurred and invoiced prior to the Forbearance Effective Date due and owing to Davis Polk & Wardwell LLP or Miller Buckfire & Co., LLC, as advisors to the Ad Hoc Group, shall have been paid or reimbursed by the Note Parties.

Section 4. Forbearance Continuing Conditions. The continued satisfaction of each of the following shall be a condition to the Forbearance:

(a) No voluntary petition for relief under any Bankruptcy Law is filed by any Note Party; and

(b) No involuntary petition for relief under any Bankruptcy Law is filed against the Issuer or any Note Party that would constitute a Significant Subsidiary.

Section 5. Representation of the Holders. Each Holder severally (but not jointly) represents that, as of the date hereof, it is the beneficial owner and/or investment advisor or manager of discretionary accounts for the holders or beneficial owners of the aggregate principal amount of the 2022 Notes set forth on the signature page hereof beneath its name, and has all necessary power and authority to enter into this Agreement, grant the Forbearance with respect to such Notes and perform its obligations hereunder.

 

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Section 6. Confidentiality. Each of the Note Parties shall not disclose to any person or entity the Holders’ holdings set forth on their respective signature pages to this Agreement or otherwise disclose the Holders’ holdings information (collectively, the “Holder Information”) except: (1) in any legal proceeding relating to this Agreement; provided that the relevant Note Party shall use its reasonable best efforts to maintain the confidentiality of such Holder Information in the context of any such proceeding; (2) to the extent required by law; and (3) in response to a subpoena, discovery request, or a request from a government agency, regulatory authority or securities exchange for information regarding Holder Information or the information contained therein; provided, however, that each of the Note Parties will, to the extent permitted by applicable law or regulation, provide any such Holder with prompt written notice of any such request or requirement so that such Holder may seek, at the Note Parties’ expense, a protective order or other appropriate remedy and each Note Party will fully cooperate with such Holder’s efforts to obtain same. Notwithstanding anything to the contrary in this Section 6, the Note Parties may: (i) disclose the aggregate principal amount of Notes held by the Holders executing this Agreement, taken as a whole; and (ii) to effectuate and evidence the direction to the Trustee contained herein, at any time, and from time to time, during the Forbearance Period, provide the Trustee with an executed copy of this Agreement that includes the individual signature pages of each of the Holders.

Section 7. Notice of Default. The Note Parties shall provide notice to the Holders, through Davis Polk & Wardwell LLP, as soon as possible, but in any event within one (1) Business Day, of the occurrence of any breach of this agreement or additional Default or Event of Default, which notice shall state that such event occurred and set forth, in reasonable detail, the facts and circumstances that gave rise to such event. Such notice shall be delivered by electronic mail to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

Attn: Lawrence E. Wieman (lawrence.wieman@davispolk.com), Brian M.

Resnick (brian.resnick@davispolk.com) and

Angela M. Libby (angela.libby@davispolk.com)

Section 8. Effect on the 2022 Indenture. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Holders or the Trustee under the 2022 Indenture or the 2022 Notes, and shall not, except as expressly set forth herein, alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the 2022 Indenture or the 2022 Notes or any other provision of the 2022 Indenture or the 2022 Notes, all of which are ratified and affirmed in all respects and shall continue in full force and effect.

Section 9. Payment of Expenses. The Note Parties agree to pay all reasonable and documented fees and expenses incurred by the Ad Hoc Group, and expenses of their respective legal and financial advisors, but no more than one legal counsel, which shall be Davis Polk & Wardwell LLP, one local counsel (if necessary), and one financial advisor, which shall be Miller Buckfire & Co., LLC, and in each case subject to and in accordance with the terms and conditions of any separate engagement or similar letter with any such advisor.

Section 10. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

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Section 11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES THAT WOULD PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Section 12. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 13. Relationship of Parties; No Third Party Beneficiaries. Nothing in this Agreement shall be construed to alter the existing debtor-creditor relationship between the Note Parties and the Holders or the Trustee. This Agreement is not intended, nor shall it be construed, to create a partnership or joint venture relationship between or among any of the parties hereto. No person other than a party hereto is intended to be a beneficiary hereof and no person other than a party hereto shall be authorized to rely upon or enforce the contents of this Agreement.

Section 14. Entire Agreement; Modification of Agreement; Verbal Agreements Not Binding. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all other discussions, promises, representations, warranties, agreements and understandings between the parties with respect thereto. This Agreement may not be modified, altered or amended except by an agreement in writing signed by a duly authorized representative of each Note Party and Holders holding a majority of principal amount of the outstanding 2022 Notes held by Holders that are parties hereto as of the date of any such modification, alteration or amendment to this Agreement.

Section 15. Non-Waiver of Default. Neither this Agreement nor any forbearance hereunder shall be deemed a waiver of or consent to the Cross Default or to any other Default or Event of Default or any other term or provision of the 2022 Indenture. Each of the Note Parties acknowledges that the Trustee and the Holders have made no representations as to what actions, if any, they will take after the Forbearance Period, and the Trustee and each Holder reserves any and all rights, remedies, and claims it has (after giving effect hereto) with respect to the Interest Default and each other Default or Event of Default that may occur.

Section 16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Section 17. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable, in each case, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon any such determination of invalidity, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 18. Release. EACH OF THE NOTE PARTIES, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUCCESSORS AND ASSIGNS (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASING PARTIES”), HEREBY ACKNOWLEDGES AND STIPULATES THAT AS OF THE DATE OF THIS AGREEMENT, NONE OF THE RELEASING

 

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PARTIES HAS ANY CLAIMS, CAUSES OF ACTION, DEMANDS OR LIABILITIES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED, DISPUTED OR UNDISPUTED, KNOWN OR UNKNOWN, AGAINST, OR ANY GROUNDS OR CAUSE FOR REDUCTION, MODIFICATION, SET ASIDE OR SUBORDINATION OF THE INDEBTEDNESS, IN EACH CASE WHICH ARISE OUT OF OR ARE RELATED TO THE 2022 NOTES OR THE 2022 INDENTURE (BUT, FOR THE AVOIDANCE OF DOUBT, EXCLUDING CLAIMS, CAUSES OF ACTION, DEMANDS OR LIABILITIES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT) (EACH, A “RELEASED CLAIM”) AGAINST THE HOLDERS OR AGAINST ANY OF THE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, OR REPRESENTATIVES OF ANY OF THE FOREGOING, (EACH OF THE FOREGOING, COLLECTIVELY, THE “RELEASED PARTIES”). IN PARTIAL CONSIDERATION FOR THE AGREEMENT OF THE HOLDERS PARTY HERETO TO ENTER INTO THIS AGREEMENT, 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 RELEASED CLAIMS, 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 FORBEARANCE 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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EXECUTION VERSION

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

NOTE PARTIES
MEMORIAL PRODUCTION PARTNERS GP LLC
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMORIAL PRODUCTION PARTNERS LP
By:   Memorial Production Partners GP LLC
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMORIAL PRODUCTION FINANCE CORPORATION
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
MEMP SERVICES LLC
MEMORIAL PRODUCTION OPERATING LLC
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

[Signature Page to the 2022 Notes Forbearance]


EXECUTION VERSION

 

MEMORIAL ENERGY SERVICES LLC
MEMORIAL MIDSTREAM LLC
BETA OPERATING COMPANY, LLC
COLUMBUS ENERGY, LLC
RISE ENERGY OPERATING, LLC
WHT ENERGY PARTNERS LLC
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
RISE ENERGY MINERALS, LLC
RISE ENERGY BETA, LLC
By:   Rise Energy Operating, LLC,
  its sole member
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer
WHT CARTHAGE LLC
By:   WHT Energy Partners LLC,
  its sole member
By:   Memorial Production Operating LLC,
  its sole member
By:   Memorial Production Partners LP,
  its sole member
By:   Memorial Production Partners GP LLC,
  its general partner
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

[Signature Page to the 2022 Notes Forbearance]


SAN PEDRO BAY PIPELINE COMPANY
By:  

/s/ Robert L. Stillwell, Jr.

Name:   Robert L. Stillwell, Jr.
Title:   Chief Financial Officer

[Signature Page to the 2022 Notes Forbearance]


HOLDERS
BRIGADE CAPITAL MANAGEMENT LP, on behalf of funds and accounts managed by it
By:  

/s/ Scott Hoffman

Name:   Scott Hoffman
Title:   Senior Analyst
Principal Amount of 2022 Notes held: $            
CITADEL EQUITY FUND LTD
By: Citadel Advisors LLC, its Portfolio Manager
By:  

/s/ Christopher L. Ramsay

Name:   Christopher L. Ramsay
Title:   Authorized Signatory
Principal Amount of 2022 Notes held: $            
FIR TREE INC (on behalf of certain investment Funds under management)
By:  

/s/ Evan Lederman

Name:   Evan Lederman
Title:   Authorized Signatory
Principal Amount of 2022 Notes held: $            
FRANKLIN ADVISERS, INC., as investment manager on behalf of certain funds and accounts
By:  

/s/ Glenn Voyles

Name:   Glenn Voyles
Title:   VP – Director of Portfolio Management
Principal Amount of 2022 Notes held: $            
NNIP GLOBAL HIGH YIELD
By:  

/s/ Timothy Dowling

Name:   Timothy Dowling
Title:   Lead PM, Global High Yield
Principal Amount of 2022 Notes held: $            

[Signature Page to the 2022 Notes Forbearance]

EX-99.1

Exhibit 99.1

 

LOGO

Memorial Production Partners LP Enters Into Forbearance Agreement with Noteholders

and Receives Extension of Waiver Under Credit Facility

Continues Review of Strategic Alternatives and Ongoing Discussions with Lenders and Noteholders

HOUSTON, December 1, 2016 — Memorial Production Partners LP (NASDAQ:MEMP) (“MEMP” or “the Partnership”) today announced that it has entered into a forbearance agreement (the “Forbearance Agreement”) with certain noteholders that hold 51.7% of the Partnership’s 7.625% senior notes due 2021 (the “2021 notes”) and hold 69% of the Partnership’s 6.875% senior notes due 2022 (collectively, the “noteholders”), under which the noteholders have agreed to forbear from exercising any and all remedies available to them as a result of MEMP’s previously announced election to not make an interest payment of approximately $24.6 million due on the 2021 notes. The Forbearance Agreement extends through December 7, 2016.

In addition, MEMP reached an agreement with the lenders under its revolving credit facility to extend through December 16, 2016, the waiver that was previously granted in connection with MEMP’s election not to make the interest payment on the 2021 notes as noted above (the “Extended Waiver”).

As previously announced MEMP is engaged in ongoing discussions with its lenders and a steering committee of its noteholders regarding potential strategic alternatives to strengthen its balance sheet and improve its capital structure. The Forbearance Agreement and Extended Waiver will allow the parties to continue this dialogue and work towards a comprehensive solution that substantially improves MEMP’s balance sheet.

Operations are continuing as normal across MEMP’s asset base.

Perella Weinberg Partners L.P. is serving as financial advisor to MEMP and Weil, Gotshal & Manges LLP is serving as its legal counsel.


About Memorial Production Partners LP

Memorial Production Partners LP is a publicly traded partnership engaged in the acquisition, production and development of oil and natural gas properties in the United States. MEMP’s properties consist of mature, legacy oil and natural gas fields. MEMP is headquartered in Houston, Texas. For more information, visit www.memorialpp.com.

Forward-Looking Statements

This press release includes “forward-looking statements.” All statements, other than statements of historical facts, included in this press release that address activities, events or developments that MEMP expects, believes or anticipates will or may occur in the future are forward-looking statements. Terminology such as “will,” “would,” “should,” “could,” “expect,” “anticipate,” “plan,” “project,” “intend,” “estimate,” “believe,” “target,” “continue,” “potential,” the negative of such terms or other comparable terminology are intended to identify forward-looking statements. These statements include, but are not limited to, statements about strategic alternatives and MEMP’s expectations of plans, goals, strategies (including measures to implement strategies), objectives and anticipated results with respect thereto. These statements are based on certain assumptions made by MEMP based on its experience and perception of historical trends, current conditions, expected future developments and other factors it believes are appropriate in the circumstances, but such assumptions may prove to be inaccurate. Such statements are also subject to a number of risks and uncertainties, many of which are beyond the control of MEMP, which may cause MEMP’s actual results to differ materially from those implied or expressed by the forward-looking statements. These include risks and uncertainties relating to, among other things, MEMP’s efforts to reduce leverage and effectuate strategic alternatives; MEMP’s level of indebtedness including its ability to satisfy its debt obligation; the borrowing base under MEMP’s revolving credit facility and failure to pay interest on its senior notes; risks related to MEMP’s ability to generate sufficient cash flow, to make payments on its debt obligations and to execute its business plan; MEMP’s ability to access funds on acceptable terms, if at all, because of the terms and conditions governing MEMP’s indebtedness or otherwise; and the risk that MEMP’s hedging strategy may be ineffective or may reduce its income. Please read MEMP’s filings with the Securities and Exchange Commission (“SEC”), including “Risk Factors” in MEMP’s Annual Report on Form 10-K, and if applicable, MEMP’s Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, which are available on MEMP’s Investor Relations website at http://investor.memorialpp.com/sec.cfm or on the SEC’s website at http://www.sec.gov, for a


discussion of risks and uncertainties that could cause actual results to differ from those in such forward-looking statements. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this press release. All forward-looking statements in this press release are qualified in their entirety by these cautionary statements. Except as required by law, MEMP undertakes no obligation and does not intend to update or revise any forward-looking statements, whether as a result of new information, future results or otherwise.

Contacts

Investors:

Memorial Production Partners LP

Bobby Stillwell – Chief Financial Officer

(713) 588-8347

ir@memorialpp.com

Memorial Production Partners LP

Martyn Willsher – Treasurer

(713) 588-8346

ir@memorialpp.com

Media:

Meaghan Repko / Andrew Siegel / Aaron Palash

Joele Frank, Wilkinson Brimmer Katcher

(212) 355-4449