ex_10-1.htm


    
      

      

    


    Exhibit
10.1

     

    JOINDER
AGREEMENT

     

    


     

    This JOINDER AGREEMENT (the “Joinder Agreement”)
is made as of the 13th day of
November, 2008 by and among  BERRY PETROLEUM COMPANY, a Delaware
corporation (“Borrower”), WELLS
FARGO BANK, NATIONAL ASSOCIATION, individually and as LC Issuer, Swing Line
Lender and Administrative Agent  (in such capacity, “Administrative
Agent”), and BANK OF MONTREAL (“New Lender”).

     

    RECITALS

     

    Borrower,
Administrative Agent, LC Issuer, Swing Line Lender and the Lenders named therein
are parties to that certain Amended and Restated Credit Agreement dated as of
July 15, 2008 (as amended to the date hereof and as otherwise amended,
supplemented, restated, increased, extended or otherwise modified from time to
time, the “Credit
Agreement”).  All terms used herein and not otherwise defined
shall have the same meaning given to them in the Credit Agreement.

    


    Pursuant
to Section 2.10
of the Credit Agreement, Borrower has the right to cause from time to time an
increase in the Commitments and the Aggregate Commitment by adding to the Credit
Agreement, subject to the approval of the Administrative Agent, LC Issuer and
Swing Line Lender, an additional Lender which is an Eligible Assignee; provided
however (i) no Default shall exist, (ii) no such increase shall result
in the Aggregate Commitments exceeding $1,250,000,000, and (iii) no such
increase shall be in an amount less than $5,000,000.

    


    AGREEMENT

     

    1. Borrower
and New Lender hereby agree that, from and after the date hereof, New Lender
shall have the Commitment as set forth on the attached Supplement to
Schedule 1.  By its execution and delivery of this Joinder
Agreement, New Lender hereby assumes all of the rights and obligations of a
Lender under the Credit Agreement to the extent of such
Commitment.  Such Commitment of New Lender shall represent an increase
in the Commitments and the Aggregate Commitment pursuant to Section 2.10 of the
Credit Agreement.

     

    2. Administrative
Agent, LC Issuer, Swing Line Lender and Borrower hereby consent to and approve
the Commitment of New Lender and such resulting increase in the Aggregate
Commitment pursuant to Section 2.10 of the
Credit Agreement.

     

    3. New
Lender hereby represents and warrants as follows: (a) it has full power and
authority, and has taken all action necessary to execute and deliver this
Joinder Agreement, to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (b) it meets all requirements of an
Eligible Assignee under the Credit Agreement (subject to receipt of any consents
that may be required under the Credit Agreement), (c) from and after the
Increase Effective Date (hereinafter defined), it shall, to the extent of its
Commitment, be bound by the provisions of the Credit Agreement as a Lender
thereunder, and, to the extent of its Commitment, shall have the obligations of
a Lender thereunder, (d) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section
6.2 (a) and (b)
thereof, as applicable, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Joinder Agreement on the basis of which it has made such analysis and
decision independently and without reliance on Administrative Agent or any other
Lender, and (e) if it is a Foreign Lender, attached to this Joinder Agreement is
any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by New Lender; and agrees that (1)
it will, independently and without reliance on Administrative Agent, or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (2) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.

     

    4. This
Joinder Agreement shall be effective on the date (the “Increase Effective
Date”) that (i) Borrower and New Lender each execute a counterpart
hereof and deliver the same to Administrative Agent, (ii) Administrative Agent,
LC Issuer and Swing Line Lender execute and deliver a counterpart hereof and
(iii) each of the conditions to the increase in the Aggregate Commitment in
Section 2.10 of
the Credit Agreement shall have occurred.  From and after the Increase
Effective Date, New Lender shall be a “Lender” under the Loan
Documents.

     

    5. Upon any
increase in the Aggregate Commitment pursuant to Section 2.10,
Lenders have authorized Administrative Agent and Borrower to make non-ratable
borrowings and prepayments of the Loans, and if any such prepayment would result
in payments being due under Section 3.4, Borrower shall
pay any such required amounts in order to keep the outstanding Loans ratable
with any revised Percentage Shares arising from the Commitment under this
Joinder Agreement.  On the Increase Effective Date, New Lender shall
make a Loan for the account of Borrower to the extent necessary to implement
such provisions of Section 2.10 of the Credit
Agreement.

     

    6. Borrower
(a) represents and warrants that, on and as of the Increase Effective Date,
before and after giving effect to the increase in Aggregate Commitment resulting
hereunder, (i) the representations and warranties contained in Article V of the
Credit Agreement and the other Loan Documents made by it are true and correct in
all material respects on and as of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material respects as of
such earlier date, and (ii) no Default exists.  Borrower hereby
certifies that attached hereto is a true and correct copy of resolutions of the
Board of Directors of Borrower authorizing the increase in the Commitments and
the Aggregate Commitment as set forth in this Joinder Agreement.

     

    7. Borrower
hereby (i) consents to the provisions of this Joinder Agreement and the
transactions contemplated herein and (ii) agrees that all of its respective
obligations and covenants thereunder shall remain unimpaired by the execution
and delivery of this Joinder Agreement and the other documents and instruments
executed in connection herewith.

     

    8. This
Joinder Agreement may not be amended, changed, waived or modified, except by a
writing executed by the parties hereto.

     

    9. This
Joinder Agreement embodies the entire agreement among New Lender, Borrower, LC
Issuer, Swing Line Lender and Administrative Agent with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.

     

    10. This
Joinder Agreement may be executed in any number of counterparts each of which
shall be deemed to be an original.  Each such counterpart shall become
effective when counterparts have been executed by all parties
hereto.  Delivery of an executed counterpart of this Joinder Agreement
by telecopier shall be effective as delivery of a manually executed counterpart
of this Joinder Agreement.

     

    11. This
Joinder Agreement shall be binding upon and inure to the benefit of New Lender
and Borrower and their respective successors and permitted assigns, except that
neither party may assign or transfer any of its rights or obligations hereunder
without the prior written consent of the other party.

     

    12. This
Joinder Agreement shall be governed by, and construed in accordance with, the
laws of the State of California.

     

    Borrower
shall execute and deliver to New Lender, as of the Increase Effective Date, a
Note in the form attached to the Credit Agreement to evidence the Commitment of
New Lender.

     

    


     

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    IN WITNESS WHEREOF,
Administrative Agent, LC Issuer, Swing Line Lender,  Borrower and New
Lender have executed this Joinder Agreement as of the date shown
above.

    


    


    WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, LC Issuer and Swing
Line Lender

    


    


    By:                                                      

    Name:

    Title:

    


    


    


    



    
      
         


      

      
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    BANK OF
MONTREAL, as New Lender

    


    


    By:                                                      

    Name:

    Title:

    


    


    



    
      
         


      

      
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    BERRY
PETROLEUM COMPANY,

    as
Borrower

    


    


    By:                                                      

    Name:

         Title:

    


    


    


    


    


    



    
      
         


      

      
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    SUPPLEMENT TO SCHEDULE
1

    OF THE CREDIT
AGREEMENT

    


    


    

      
        	
                 

                Lender

                 

              	 	
                
                

                Percentage Share

              	 	 	
                
                

                Commitment

              	 
	
                Bank
      of Montreal

              	 	 	3.13901345291	%	 	$	35,000,000	 


      





    
      
         


      

      
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    RESOLUTIONS
OF BOARD OF DIRECTORS OF

    BERRY
PETROLEUM COMPANY


    
      
         


      

      
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