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): August 28, 2013

 

 

EXCO RESOURCES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Texas   001-32743   74-1492779

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

12377 Merit Drive

Suite 1700, LB 82

Dallas, Texas

  75251
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (214) 368-2084

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 (see General Instruction A.2. below):

 

  ¨ 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))

 

 

 


Section 1 – Registrant’s Business and Operations

Item 1.01 Entry into a Material Definitive Agreement.

On August 28, 2013, EXCO Resources, Inc. (“EXCO”) entered into that certain First Amendment to its Amended and Restated Credit Agreement, dated as of August 28, 2013, by and among EXCO, as borrower, certain of its subsidiaries, as guarantors, JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative agent, and the lenders party thereto (the “First Amendment”).

The First Amendment amended EXCO’s existing Amended and Restated Credit Agreement, dated as of July 31, 2013 (the “Amended and Restated Credit Agreement”), to, among other things, provide that borrowing base usage is determined based on total aggregate borrowing base instead of available borrowing base. Borrowing base usage is calculated as all outstanding borrowings under the revolving and term loan commitments, undrawn amounts on letters of credit and payments made pursuant to a letter of credit not yet reimbursed by EXCO divided by the total aggregate borrowing base. The interest rate, commitment fees and participation fees under the Amended and Restated Credit Agreement depend upon EXCO’s borrowing base usage.

A description of the material terms of the Amended and Restated EXCO Resources Credit Agreement can be found in EXCO’s Current Reports on Form 8-K filed on August 6, 2013 and August 23, 2013, which description is incorporated by reference. The foregoing description of the First Amendment is not complete and is qualified in its entirety by the First Amendment, which is filed as Exhibit 10.1 hereto and incorporated by reference.

Section 2 – Financial Information

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

The information set forth in Item 1.01 is hereby incorporated herein by reference.

Section 9 – Financial Statements and Exhibits

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit No.

  

Description

10.1    First Amendment to Amended and Restated Credit Agreement, dated as of August 28, 2013, by and among EXCO Resources, Inc., as Borrower, certain subsidiaries of Borrower, as Guarantors, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.

 

2


SIGNATURES

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

 

    EXCO RESOURCES, INC.
Date: September 4, 2013     By:    /s/ Mark F. Mulhern
      Name:   Mark F. Mulhern
      Title:   Executive Vice President and Chief Financial Officer

 

 

3


EXHIBIT INDEX

 

Exhibit No.

  

Description

10.1    First Amendment to Amended and Restated Credit Agreement, dated as of August 28, 2013, by and among EXCO Resources, Inc., as Borrower, certain subsidiaries of Borrower, as Guarantors, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.

 

4

Exhibit 10.1

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (hereinafter referred to as the “ Amendment ”) is dated as of August 28, 2013, by and among EXCO RESOURCES, INC. (“ Borrower ”), CERTAIN SUBSIDIARIES OF BORROWER, as Guarantors (the “ Guarantors ”), the LENDERS party hereto (the “ Lenders ”), and JPMORGAN CHASE BANK, N.A., as Administrative Agent (“ Administrative Agent ”). Unless the context otherwise requires or unless otherwise expressly defined herein, capitalized terms used but not defined in this Amendment have the meanings assigned to such terms in the Credit Agreement as amended herein (as defined below).

WITNESSETH:

WHEREAS , Borrower, the Guarantors, Administrative Agent and the Lenders have entered into that certain Amended and Restated Credit Agreement dated as of July 31, 2013 (as the same has been and may hereafter be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”); and

WHEREAS , Administrative Agent, the Lenders, Borrower and the Guarantors desire to amend the Credit Agreement as provided herein upon the terms and conditions set forth herein.

NOW, THEREFORE , for and in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Borrower, the Guarantors, Administrative Agent and the Lenders hereby agree as follows:

SECTION 1. Amendments to Credit Agreement . Subject to the satisfaction or waiver in writing of each condition precedent set forth in Section 2 hereof, and in reliance on the representations, warranties, covenants and agreements contained in this Amendment, the Credit Agreement shall be amended in the manner provided in this Section 1 .

1.1 Amended Definition. The following definition in Section 1.01 of the Credit Agreement shall be and it hereby is amended and restated in its entirety to read as follows:

Borrowing Base Usage ” means, as of any date and for all purposes (including at all times from and after the Effective Date), the quotient, expressed as a percentage, of (i) the Aggregate Credit Exposure as of such date divided by (ii) the Borrowing Base as of such date.

1.2 Additional Definitions . The following cross references to definitions contained in the Credit Agreement shall be added to Section 1.01 of the Credit Agreement in appropriate alphabetical order:

Agents ” has the meaning assigned to such term in Section 11.19.

Incremental Term Loans ” has the meaning assigned to such term in Section 2.03(c).


Incremental Term Loan Closing Date ” has the meaning assigned to such term in Section 2.03(c).

Required KKR Assignments ” has the meaning assigned to such term in Section 7.03(a)(xii).

1.3 Indebtedness . Clause (j) of Section 7.01 of the Credit Agreement shall be and it hereby is amended and restated in its entirety to read as follows:

(j) Indebtedness incurred by a Credit Party or any of its Subsidiaries under customary agreements consisting of indemnification, adjustment of purchase price or similar obligations entered into in connection with Dispositions permitted under Section 7.03.

1.4 Waivers; Amendments . Section 11.02 of the Credit Agreement shall be and it hereby is amended by adding the following to the end of such Section as Section 11.02(d):

(d) Notwithstanding anything to the contrary contained in this Section 11.02, the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to correct any clerical errors or cure any ambiguity, omission, mistake, defect or inconsistency.

SECTION 2. Conditions . The amendments to the Credit Agreement contained in Section 1 of this Amendment, shall be effective upon the satisfaction of each of the conditions set forth in this Section 2 .

2.1 Execution and Delivery . Each Credit Party, the Lenders (or at least the required percentage thereof) and Administrative Agent shall have executed and delivered this Amendment.

2.2 No Default . No Default or Event of Default shall have occurred and be continuing or shall result after giving effect to this Amendment.

2.3 Other Documents . Administrative Agent shall have received such other instruments and documents incidental and appropriate to the transactions provided for herein as Administrative Agent or its special counsel may reasonably request, and all such documents shall be in form and substance satisfactory to Administrative Agent.

SECTION 3. Representations and Warranties of Borrower . To induce the Lenders to enter into this Amendment, each Credit Party hereby represents and warrants to the Lenders as follows:

3.1 Reaffirmation of Representations and Warranties/Further Assurances. After giving effect to the amendments herein, each representation and warranty of such Credit Party contained in the Credit Agreement or in any other Loan Document is true and correct in all material respects on the date hereof (except to the extent such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such date and any representation or warranty which is qualified by reference to “materiality” or “Material Adverse Effect” is true and correct in all respects).


3.2 Corporate Authority; No Conflicts . The execution, delivery and performance by such Credit Party of this Amendment and all documents, instruments and agreements contemplated herein are within such Credit Party’s corporate or other organizational powers, have been duly authorized by all necessary action, require no action by or in respect of, or filing with, any court or agency of government and do not violate or constitute a default under any provision of any applicable law or other agreements binding upon such Credit Party or result in the creation or imposition of any Lien upon any of the assets of such Credit Party except for Liens permitted under Section 7.02 of the Credit Agreement.

3.3 Enforceability . This Amendment has been duly executed and delivered by each Credit Party and constitutes the valid and binding obligation of such Credit Party enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditor’s rights generally, and (ii) the availability of equitable remedies may be limited by equitable principles of general application.

3.4 No Default . As of the date of this Amendment, both before and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

SECTION 4. Miscellaneous .

4.1 Reaffirmation of Loan Documents and Liens . Except as amended and modified hereby, any and all of the terms and provisions of the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby in all respects ratified and confirmed by each Credit Party. Each Credit Party hereby agrees that the amendments and modifications herein contained shall in no manner affect or impair the liabilities, duties and obligations of any Credit Party under the Credit Agreement and the other Loan Documents or the Liens securing the payment and performance thereof.

4.2 Parties in Interest . All of the terms and provisions of this Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.

4.3 Legal Expenses . Each Credit Party hereby agrees to pay all reasonable fees and expenses of special counsel to Administrative Agent incurred by Administrative Agent in connection with the preparation, negotiation and execution of this Amendment and all related documents.

4.4 Counterparts . This Amendment may be executed in one or more counterparts and by different parties hereto in separate counterparts each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of photocopies of the signature pages to this Amendment by facsimile or electronic mail shall be effective as delivery of manually executed counterparts of this Amendment.


4.5 Complete Agreement . THIS AMENDMENT, THE CREDIT AGREEMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

4.6 Headings . The headings, captions and arrangements used in this Amendment are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of this Amendment, nor affect the meaning thereof.

4.7 Severability . Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

4.8 Governing Law . This Amendment shall be construed in accordance with and governed by the laws of the State of New York.

4.9 Reference to and Effect on the Loan Documents.

(a) This Amendment shall be deemed to constitute a Loan Document for all purposes and in all respects. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference in the Credit Agreement or in any other Loan Document, or other agreements, documents or other instruments executed and delivered pursuant to the Credit Agreement to the “Credit Agreement”, shall mean and be a reference to the Credit Agreement as amended by this Amendment.

(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.

[SIGNATURE PAGES FOLLOW]


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

 

BORROWER :
EXCO RESOURCES, INC.
By:   /s/ Mark F. Mulhern
Name:   Mark F. Mulhern
Title:   Executive Vice President and Chief
  Financial Officer
GUARANTORS :
EXCO HOLDING (PA), INC.
EXCO PRODUCTION COMPANY (PA), LLC
EXCO PRODUCTION COMPANY (WV), LLC
EXCO RESOURCES (XA), LLC
EXCO SERVICES, INC.
EXCO MIDCONTINENT MLP, LLC
EXCO PARTNERS GP, LLC
EXCO PARTNERS OLP GP, LLC
EXCO HOLDING MLP, INC.
EXCO EQUIPMENT LEASING, LLC
By:   /s/ Mark F. Mulhern
Name:   Mark F. Mulhern
Title:   Executive Vice President and Chief
  Financial Officer
EXCO OPERATING COMPANY, LP
By:   EXCO Partners OLP GP, LLC,
  its general partner
  By:   /s/ Mark F. Mulhern
  Name:   Mark F. Mulhern
  Title:   Executive Vice President and Chief Financial Officer


EXCO GP PARTNERS OLD, LP
By:  

EXCO Partners GP, LLC,

its general partner

  By:   /s/ Mark F. Mulhern
  Name: Mark F. Mulhern
  Title: Executive Vice President and Chief Financial Officer
EXCO HV ACQUISITION SUB LLC

By: EXCO Operating Company, LP,

its sole member

  By: EXCO Partners OLP GP, LLC,
  its general partner
  By:   /s/ Mark F. Mulhern
  Name:   Mark F. Mulhern
  Title:   Executive Vice President and Chief Financial Officer


JPMORGAN CHASE BANK, N.A., as a Lender and as Administrative Agent and Issuing Bank
By:   /s/ Michael A. Kamauf
Name:   Michael A. Kamauf
Title:   Authorized Officer


BANK OF AMERICA, N.A., as a Lender
By:   /s/ Jason Zilewicz
Name:   Jason Zilewicz
Title:   Assistant Vice President


WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:   /s/ T. Bancroft Mattei
Name:   T. Bancroft Mattei
Title:   Director


CREDIT SUISSE AG, Cayman Islands Branch,

as a Lender

By:   /s/ Kevin Buddhdew
Name:   Kevin Buddhdew
Title:   Authorized Signatory
By:   /s/ Michael Spaight
Name:   Michael Spaight
Title:   Authorized Signatory


NATIXIS, as a Lender
By:   /s/ Louis P. Laville III
Name:   Louis P. Laville III
Title:   Managing Director
By:   /s/ Stuart Murray
Name:   Stuart Murray
Title:   Managing Director


DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
By:   /s/ Michael Getz
Name:   Michael Getz
Title:   Vice President
By:   /s/ Lisa Wong
Name:   Lisa Wong
Title:   Vice President


CAPITAL ONE, NATIONAL ASSOCIATION,

as a Lender

By:   /s/ Victor Ponce de León
Name:   Victor Ponce de León
Title:   Vice President


ING CAPITAL LLC, as a Lender
By:   /s/ Juli Bieser
Name:   Juli Bieser
Title:   Director