THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 17, 2010 among WHITING PETROLEUM CORPORATION, as Parent Guarantor, WHITING OIL AND GAS CORPORATION, as Borrower, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and...
Exhibit 4.4
EXECUTION VERSION
THIRD AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
August 17, 2010
among
XXXXXXX PETROLEUM CORPORATION,
as Parent Guarantor,
as Parent Guarantor,
XXXXXXX OIL AND GAS CORPORATION,
as Borrower,
as Borrower,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
as Administrative Agent,
and
The Lenders Party Hereto
BANK OF AMERICA, N.A. and
XXXXX FARGO BANK, N.A.,
as Syndication Agents
as Syndication Agents
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK and
COMPASS BANK,
as Documentation Agents
COMPASS BANK,
as Documentation Agents
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
as Sole Lead Arranger and Sole Bookrunner
THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Third
Amendment”) dated as of August 17, 2010, is among XXXXXXX PETROLEUM CORPORATION, a
Delaware corporation, as the Parent Guarantor, XXXXXXX OIL AND GAS CORPORATION, a Delaware
corporation, as the Borrower, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
other Agents the Lenders party hereto.
R E C I T A L S
A. The Parent Guarantor, the Borrower, the Administrative Agent, other parties as agents and
the Lenders are parties to that certain Fourth Amended and Restated Credit Agreement dated as of
April 28, 2009 (as amended by that certain First Amendment to Fourth Amended and Restated Credit
Agreement dated as of June 15, 2009 and that certain Second Amendment to Fourth Amended and
Restated Credit Agreement dated as of August 9, 2010, and as further amended from time to time, the
“Credit Agreement”), pursuant to which the Lenders have made certain loans to and
extensions of credit for the account of the Borrower.
B. The Borrower has requested and the Majority Lenders have agreed to amend certain provisions
of the Credit Agreement.
C. 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 used herein but not otherwise defined
herein has the meaning given such term in the Credit Agreement. Unless otherwise indicated, all
article and section references in this Third Amendment refer to articles and sections of the Credit
Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Amendments to Section 1.02.
(a) The definition of “Agreement” is hereby deleted and replaced in its entirety to
read as follows:
“Agreement” means this Credit Agreement, as amended by the First
Amendment, the Second Amendment, the Third Amendment and as the same may from time
to time be amended, modified, supplemented or restated.
(b) The definition of “Third Amendment” is hereby added where alphabetically appropriate to
read as follows:
“Third Amendment” means the Third Amendment to Fourth Amended and
Restated Credit Agreement dated as of August 17, 2010 among the Parent
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Guarantor, the Borrower, the Administrative Agent and the other Agents and the
Lenders party thereto.
2.2 Restricted Payments. Section 9.04(a) is hereby amended in its entirety to read as
follows:
(a) Restricted Payments. The Parent Guarantor will not, and will not
permit any Credit Party to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, return any capital to its stockholders on
account of such Equity Interests or make any distribution of its Property to its
Equity Interest holders on account of such Equity Interests, except
(i) the Parent Guarantor may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its Equity Interests (other
than Disqualified Capital Stock),
(ii) Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests,
(iii) the Parent Guarantor may make Restricted Payments pursuant to and in
accordance with equity incentive plans, stock option plans or arrangements or other
benefit plans or arrangements for management, employees or directors of the Parent
Guarantor and the Credit Parties in an amount not to exceed $5,000,000 during any
fiscal year and $10,000,000 during the term of this Agreement,
(iv) if no Default, Event of Default or Borrowing Base Deficiency exists at the
time of payment, then the Parent Guarantor may pay cash dividends during the term
hereof on any series of its Designated Preferred Convertible Stock then outstanding
in an aggregate amount not to exceed, as of the date of payment, the product of (A)
the lesser of (1) $6,250,000 and (2) the aggregate liquidation preference of each
outstanding series of Designated Preferred Convertible Stock issued prior to July
31, 2009 times one fourth of the corresponding stated dividend rate of each series,
and (B)(1) the number of calendar quarters occurring between June 15, 2009 and the
date of such payment for which the Parent Guarantor has not paid dividends in full
with respect to the Designated Preferred Convertible Stock (2) plus one,
(v) if no Default, Event of Default or Borrowing Base Deficiency exists at the
time of payment, then the Parent Guarantor may (A) make aggregate cash payments on
or prior to October 31, 2010 to holders of its 6.25% Convertible Perpetual Preferred
Stock in an amount per share of 6.25% Convertible Perpetual Preferred Stock not to
exceed the amount set forth in the resolutions of the Board of Directors of the
Parent Guarantor dated July 27, 2010 to induce such holders to convert shares of
such Designated Preferred Convertible Stock into common Equity Interests of the
Parent Guarantor; (B) make customary payments in cash to such holders in an
aggregate amount not to exceed $10,000,000 in lieu of
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fractional shares in connection with the conversion to or exchange for Equity
Interests contemplated in clause (A); and (C) issue common stock Equity Interests of
the Parent Guarantor to holders of such Designated Preferred Convertible Stock in
connection with such conversion, or
(vi) if no Default, Event of Default or Borrowing Base Deficiency exists at the time
of declaration, other Restricted Payments in an aggregate amount not to exceed
$10,000,000 during any fiscal year and $20,000,000 during the term of this
Agreement.
Section 3. Conditions Precedent. This Third Amendment shall not become effective until the
date on which each of the following conditions is satisfied (or waived in accordance with Section
12.02 of the Credit Agreement) (the “Third Amendment Effective Date”):
3.1 The Administrative Agent shall have received from the Majority Lenders, the Borrower and
each Guarantor, counterparts (in such number as may be requested by the Administrative Agent) of
this Third Amendment signed on behalf of such Persons.
3.2 The Administrative Agent shall have received such other documents as the Administrative
Agent or special counsel to the Administrative Agent may reasonably request.
3.3 No Default or Event of Default shall have occurred and be continuing, both prior and after
giving effect to the terms of this Third Amendment.
3.4 The Administrative Agent shall have received a copy of the resolutions of the Board of
Directors of the Parent Guarantor dated July 27, 2010 referred to in Section 2.2 of this Third
Amendment.
The Administrative Agent is hereby authorized and directed to declare this Third Amendment to be
effective when it has received documents confirming or certifying, to the satisfaction of the
Administrative Agent, compliance with the conditions set forth in this Section 3 or the waiver of
such conditions as permitted hereby. Such declaration shall be final, conclusive and binding upon
all parties to the Credit Agreement for all purposes.
Section 4. Miscellaneous.
4.1 Confirmation. The provisions of the Credit Agreement, as amended by this Third
Amendment, shall remain in full force and effect following the effectiveness of this Third
Amendment.
4.2 Ratification and Affirmation; Representations and Warranties. Each of the
Borrower and each Guarantor hereby (a) ratifies and affirms its respective obligations under, and
acknowledges, renews and extends its respective continued liability under, each Loan Document to
which it is a party and agrees that each Loan Document to which it is a party remains in full force
and effect, except as expressly amended hereby, notwithstanding the amendments contained herein and
(b) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the
terms of this Third Amendment: (i) all of the representations and warranties contained in each
Loan Document to which it is a party are true and correct, except to the extent
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any such representations and warranties are expressly limited to an earlier date, in which
case, such representations and warranties shall continue to be true and correct as of such
specified earlier date and (ii) no Default has occurred and is continuing.
4.3 Loan Document. This Third Amendment is a “Loan Document” as defined and described
in the Credit Agreement and all of the terms and provisions of the Credit Agreement relating to
Loan Documents shall apply hereto.
4.4 Counterparts. This Third Amendment 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 Third Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
4.5 GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 Severability. Any provision of this Third Amendment 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.
4.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and its respective successors and assigns.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly
executed as of the date first written above.
PARENT GUARANTOR: | XXXXXXX PETROLEUM CORPORATION | |||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Vice President and Chief Financial Officer | ||||||
BORROWER: | XXXXXXX OIL AND GAS CORPORATION | |||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Vice President and Chief Financial Officer | ||||||
ADMINISTRATIVE AGENT: | JPMORGAN CHASE BANK, N.A. | |||||
By: | /s/ Xxxx Xxxxxxx | |||||
Name: Xxxx Xxxxxxx | ||||||
Title: Senior Vice President | ||||||
SYNDICATION AGENTS: | BANK OF AMERICA, N.A. | |||||
By: | /s/ Xxxxxx X. Serie | |||||
Name: Xxxxxx X. Serie | ||||||
Title: Vice President | ||||||
XXXXX FARGO BANK, N.A. | ||||||
By: | /s/ Xxx Xxxxx | |||||
Name: Xxx Xxxxx | ||||||
Title: Vice President |
[Signature Page to Third Amendment]
DOCUMENTATION AGENTS: | CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | |||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title: Managing Director | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director | ||||||
COMPASS BANK | ||||||
By: | /s/ Xxxx Xxxxxxxxx | |||||
Name: Xxxx Xxxxxxxxx | ||||||
Title: Senior Vice President | ||||||
LENDERS: | JPMORGAN CHASE BANK, N.A. | |||||
By: | /s/ Xxxx Xxxxxxx | |||||
Name: Xxxx Xxxxxxx | ||||||
Title: Senior Vice President | ||||||
BANK OF AMERICA, N.A. | ||||||
By: | /s/ Xxxxxx X. Serie | |||||
Name: Xxxxxx X. Serie | ||||||
Title: Vice President | ||||||
XXXXX FARGO BANK, N.A. | ||||||
By: | /s/ Xxx Xxxxx | |||||
Name: Xxx Xxxxx | ||||||
Title: Vice President |
[Signature Page to Third Amendment]
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||||||
By: | /s/ Xxxxxxx Xxxxxxx | |||||
Name: Xxxxxxx Xxxxxxx | ||||||
Title: Managing Director | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Director: | ||||||
COMPASS BANK | ||||||
By: | /s/ Xxxx Xxxxxxxxx | |||||
Name: Xxxx Xxxxxxxxx | ||||||
Title: Senior Vice President | ||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||
By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
Name: Xxxxx X. Xxxxxxxxx | ||||||
Title: Vice President | ||||||
UNION BANK, N.A. | ||||||
(formerly known as Union Bank of California, N.A.) | ||||||
By: | /s/ Xxxxxxx Xxxxxxxx | |||||
Name: Xxxxxxx Xxxxxxxx | ||||||
Title: Vice President | ||||||
BANK OF SCOTLAND plc | ||||||
By: | /s/ Xxxxx X. Xxxxxxxx | |||||
Name: Xxxxx X. Xxxxxxxx | ||||||
Title: Assistant Vice President |
[Signature Page to Third Amendment]
SUNTRUST BANK | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxxx | ||||||
Title: Vice President | ||||||
THE BANK OF NOVA SCOTIA | ||||||
By: | /s/ Xxxxx Xxxxx | |||||
Name: Xxxxx Xxxxx | ||||||
Title: Managing Director | ||||||
KEYBANK NATIONAL ASSOCIATION | ||||||
By: | /s/ Xxxx Xxxxx | |||||
Name: Xxxx Xxxxx | ||||||
Title: Vice President | ||||||
COMERICA BANK | ||||||
By: | /s/ Xxxx X. Xxxxxxx | |||||
Name: Xxxx X. Xxxxxxx | ||||||
Title: Vice President | ||||||
BNP PARIBAS | ||||||
By: | /s/ Xxxxxxx Xxxx | |||||
Name: Xxxxxxx Xxxx | ||||||
Title: Director | ||||||
By: | Xxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxx X. Xxxxxx | ||||||
Title: Vice President |
[Signature Page to Third Amendment]
BARCLAYS BANK PLC | ||||||
By: | /s/ Xxx X. Xxxxxx | |||||
Name: Xxx X. Xxxxxx | ||||||
Title: Director | ||||||
XXXXXX XXXXXXX BANK | ||||||
By: | /s/ Xxxx Xxxxxx | |||||
Name: Xxxx Xxxxxx | ||||||
Title: Authorized Signatory | ||||||
XXXXXXX XXXXX BANK | ||||||
By: | /s/ Xxxxxxx XxXxxxxx | |||||
Name: Xxxxxxx XxXxxxxx | ||||||
Title: Senior Vice President | ||||||
ROYAL BANK OF CANADA | ||||||
By: | /s/ Xxx X. Xxxxxxx | |||||
Name: Xxx X. Xxxxxxx | ||||||
Title: Authorized Signatory | ||||||
BANK OF OKLAHOMA, N.A. | ||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: Xxxxxxx X. Xxxxx | ||||||
Title: Senior Vice President |
[Signature Page to Third Amendment]
RZB FINANCE LLC | ||||||
By: | /s/ Xxxxxxx Xxxxx | |||||
Name: Xxxxxxx Xxxxx | ||||||
Title: Vice President | ||||||
By: | /s/ Xxxx X. Xxxxxxx | |||||
Name: Xxxx X. Xxxxxxx | ||||||
Title: First Vice President |
[Signature Page to Third Amendment]