EXHIBIT 4.5
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") is entered
into as of the 29th day of November, 1995, among The Wiser Oil Company, a
Delaware corporation ("Wiser U.S."), The Wiser Oil Company Canada Ltd., an
Alberta corporation ("Wiser Canada" and collectively with Wiser U.S., the
"Borrowers"), the financial institutions listed on the signature pages hereto
(individually a "Bank" and collectively "Banks") and NationsBank of Texas, N.A.,
as agent for the ratable benefit of Banks (in such capacity, "Agent").
W I T N E S S E T H:
WHEREAS, Borrowers, Agent and Banks entered into that certain Credit
Agreement dated as of June 23, 1994 (the "Credit Agreement") (unless otherwise
defined herein, all terms used herein with their initial letter capitalized
shall have the meaning given such terms in the Credit Agreement); and
WHEREAS, Borrowers have requested that the Credit Agreement be amended
to provide for, among other things, the incurrence of certain Debt and the
granting of certain Liens in connection therewith, all as more specifically set
forth herein; and
WHEREAS, subject to the terms and conditions set forth herein, Banks
have agreed to Borrowers' request.
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,
Borrowers, Agent and each Bank hereby agree as follows:
1. Modification of Section 1.1.
1.1. Section 1.1 of the Credit Agreement is hereby amended by
changing the definitions therein of "Agreement," "Borrowing Base Deficiency,"
"Guarantee," "Loan Papers," "Permitted Encumbrances," "Permitted Investments"
and "Subsidiaries" to read in their entirety as set forth below:
"Agreement" means this Agreement, as amended through the First
Amendment, as the same may be further modified, amended or supplemented
pursuant to Section 13.5.
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"Borrowing Base Deficiency" means, as of any date, the amount, if any,
by which the aggregate unpaid principal balance of Wiser U.S.'s
Consolidated Funded Debt (but expressly excluding amounts outstanding under
the Maljamar Credit Agreement) exceeds the Borrowing Base in effect on such
date.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions, or other similar undertakings of support or
otherwise) or (b) entered into for the purpose of assuring in any other
manner the obligee of such Debt of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
"Loan Papers" means this Agreement, the First Amendment, the Notes,
the Canadian Guaranty, the Stock Pledge and all other certificates,
documents, or instruments delivered in connection with this Agreement, as
the foregoing may be amended from time to time.
"Permitted Encumbrances" means with respect to any asset:
(a) Liens, if any, securing the Obligations;
(b) Liens, if any, securing the Obligations (as defined in the
Maljamar Credit Agreement) of Maljamar Development pursuant to the Maljamar
Credit Agreement;
(c) Minor defects in title which do not secure the payment of money
and otherwise have no material adverse effect on the value or operation of
any material asset encumbered thereby, including, without limitation,
easements, rights-of-way, servitudes, permits, surface leases, restrictions
and other similar charges, encumbrances or title defects;
(d) Inchoate statutory or operators' Liens securing obligations for
labor, services, materials and supplies furnished in connection with the
drilling, development and production of oil, gas and mineral properties, or
in connection with the marketing of production therefrom, which are not
delinquent (except to the extent permitted by Section 8.6);
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(e) Mechanic's, materialman's, warehouseman's, journeyman's,
carrier's, and other similar Liens arising by operation of Law in the
ordinary course of business, securing obligations which are not delinquent
(except to the extent permitted by Section 8.6);
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(f) Liens for Taxes, assessments or other governmental charges not
delinquent (except to the extent permitted by Section 8.6);
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(g) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security or
retirement benefits or (ii)
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to secure (or to obtain letters of credit that secure) the performance of
tenders, statutory obligations, surety bonds, appeal bonds, bids, leases
(other than capital leases), performance bonds, purchase, construction or
sales contracts and other similar obligations, in each case not incurred or
made in connection with any Hedge Transaction, the borrowing of money, the
obtaining of advances on credit or the payment of the deferred purchase
price of property;
(h) any attachment or judgment Lien which is subordinate to the Liens
in favor of Agent created pursuant to the Loan Papers, unless the judgment
it secures shall not, within thirty (30) days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall not
have been discharged within thirty (30) days after the expiration of any
such stay;
(i) Lease burdens payable to third parties which are either (i)
deducted in the calculation of discounted present value in the Reserve
Reports, including, without limitation, any royalty, overriding royalty,
net profits interest, production payment, carried interest or reversionary
working interest which has been disclosed to the Agent in writing, or (ii)
which burden properties which are not included in the Reserve Reports;
(j) a Lien securing Debt in the amount of $248,000 or less encumbering
a lease known as Rocker A in Xxxxx County, Texas, which Debt represents the
deferred purchase price of such lease; and
(k) Liens (including capital leases) encumbering property of Borrowers
securing Debt incurred to finance the purchase price of such property;
provided, that (i) no such Lien shall encumber any property of either
Borrower other than the property acquired with the proceeds of such Debt,
(ii) the Debt secured by any such Lien shall not exceed the purchase price
of the property purchased with the proceeds of such Debt (including
applicable excise Taxes and transaction costs), and (iii) the aggregate
amount of all such Debt outstanding at any time shall not exceed $125,000
for each Borrower.
"Permitted Investments" means (a) readily marketable direct
obligations of the United States of America or any agency thereof (to the
extent backed by the full faith and credit of the United States of
America), (b) fully insured time deposits and certificates of deposit with
maturities of one year or less of any commercial bank operating in the
United States having capital and surplus in excess of $50,000,000.00, (c)
commercial paper of a domestic issuer if at the time of purchase such paper
is rated in one of the two highest ratings categories of Standard and
Poor's Corporation or Xxxxx'x Investors Service, (d) Intercompany Loans,
(e) the Marketable Securities held by T.W.O.C., Inc. on the date hereof and
Marketable Securities hereafter acquired by T.W.O.C., Inc. with proceeds
from the liquidation of Marketable Securities, (f) Investments in Maljamar
Development (i) of the interests of Wiser U.S. in the Maljamar Field in Lea
County and Eddy County, New Mexico and of funds to pay for the operation
and maintenance of such properties, (ii) made pursuant to the Distribution
Recapture Agreement, or (iii) otherwise
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approved by Majority Banks, (g) other Investments; provided, that, Wiser
U.S.'s and its Subsidiaries' aggregate basis in Investments made on or
after September 28, 1993 which are outstanding at any time pursuant to this
subsection (g) shall not exceed $3,000,000 U.S. (each Borrower acknowledges
that Investments by Wiser U.S. in any of its Subsidiaries since September
28, 1993 and Investments by any such Subsidiary since September 28, 1993 in
any other Subsidiary of Wiser U.S. are considered "Investments" for
purposes of this definition and Section 9.8), and (h) Investments by Wiser
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U.S. in Wiser Canada (in addition to such Investments which are Permitted
Investments pursuant to subsection (g) of this definition); not to exceed
$5,000,000 U.S. outstanding at any time.
"Subsidiary" means, for any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions (including that of a general partner) are at the time
directly or indirectly owned, collectively, by such Person and any
Subsidiaries of such Person. The term Subsidiary shall include
Subsidiaries of Subsidiaries (and so on). Each of the Existing
Subsidiaries, Maljamar Development and Maljamar Wiser, Inc., a Delaware
corporation is a "Subsidiary" of Wiser U.S.
1.2. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definition of "Maljamar Development" immediately after
the definition therein of "Majority Banks":
"Maljamar Development" means Maljamar Development Partnership, L.P., a
Texas limited partnership whose only partners are Wiser U.S. and Maljamar
Wiser, Inc., a Delaware corporation, which is a wholly owned Subsidiary of
Wiser U.S.
1.3. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definition of "Distribution Recapture Agreement"
immediately after the definition therein of "Distribution":
"Distribution Recapture Agreement" means that certain Distribution
Recapture Agreement dated November 29, 1995, executed by Wiser U.S. in
favor of Agent for the benefit of Banks described therein.
1.4. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definition of "First Amendment" immediately after the
definition therein of "Financial Officer":
"First Amendment" means that certain First Amendment to Credit
Agreement dated as of November 29, 1995, by and among Borrowers, Agent and
Banks.
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1.5. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definition of "Maljamar Credit Agreement" immediately
preceding the definition therein of "Maljamar Development":
"Maljamar Credit Agreement" means that certain Credit Agreement dated
November 29, 1995, among Maljamar Development, Agent and the financial
institutions listed on the signature pages thereto as Banks.
1.6. Section 1.1 of the Credit Agreement is hereby further amended by
adding the following new definition of "Wiser Support Documents" immediately
after the definition therein of "Wiser Canada":
"Wiser Support Documents" means the Administrative Support Agreement,
the Environmental Indemnity Agreement, the Distribution Recapture Agreement
and the Operating Agreement, as each term is defined in the Maljamar Credit
Agreement.
2. Modification of Section 9.3. Section 9.3 of the Credit Agreement is
hereby amended to read in its entirety as follows:
SECTION 9.3. Negative Pledge. Neither Borrower will create, assume
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or suffer to exist, and neither Borrower will permit any Subsidiary of
Wiser U.S. to create, assume or suffer to exist, any Lien on any asset of
Wiser U.S. or any of its Subsidiaries other than Permitted Encumbrances.
Neither Borrower will enter into or become subject to, and neither Borrower
will permit any Subsidiary of Wiser U.S. to enter into or become subject
to, any agreement (other than this Agreement or the Maljamar Credit
Agreement) that prohibits or otherwise restricts the right of Wiser U.S. or
any of its Subsidiaries to create, assume or suffer to exist any Lien in
favor of Agent or any Bank on any of Wiser U.S.'s or any of its
Subsidiaries' assets.
3. Modification of Section 9.9. Section 9.9 of the Credit Agreement is
hereby amended to read in its entirety as follows:
SECTION 9.9. Transactions with Affiliates. Neither Borrower will
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engage, and neither Borrower will permit any Subsidiary of Wiser U.S. to
engage, in any transaction (other than transactions contemplated by the
Wiser Support Documents) with an Affiliate (other than with either Borrower
or a Subsidiary of Wiser U.S.) unless such transaction is as favorable to
such Borrower or such Subsidiary as could reasonably be obtained in an
arm's length transaction with an unaffiliated Person in accordance with
prevailing industry custom and practices.
4. Modification of Section 11.1. Section 11.1 of the Credit Agreement is
hereby amended by (a) deleting the word "or" from the end of clause (j) therein,
(b) deleting the period from the end of clause (k) therein and adding a
semicolon and the word "or" to the end of clause (k) therein, and (c) adding the
following new clause (l) immediately after clause (k) therein:
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(l) the occurrence of an Event of Default under, and as defined in,
the Maljamar Credit Agreement;
5. Conditions Precedent to Effectiveness of Amendments. The amendments
to the Credit Agreement contained in this Amendment shall be effective on the
date upon which each of the following conditions shall have been fulfilled (the
"Effective Date"):
5.1. Loan Papers. Each Borrower and each Bank shall have executed a
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counterpart hereof and delivered the same to the Agent, or in the case of
any Bank as to which an executed counterpart hereof shall not have been so
delivered, the Agent shall have received written confirmation by telecopy
or other similar writing from such Bank of execution of a counterpart
hereof by such Bank.
5.2. Corporate Existence and Authority. Borrowers shall have
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delivered to Agent such resolutions, certificates and other documents as
Agent shall request relative to the authorization, execution and delivery
by Borrowers of this Amendment.
6. Borrowing Base. Effective as of September 30, 1995 and continuing
until the next Determination Date, the Borrowing Base shall be $104,000,000 and
the Canadian Borrowing Base shall be $52,000,000; provided that, if prior to the
next Determination Date, Wiser U.S., pursuant to clause (f)(1) of the definition
of Permitted Investments contained in this Amendment, contributes certain
properties owned by Wiser U.S. and located in the Maljamar Field in Lea and Eddy
Counties, New Mexico to Maljamar Development Partnership, L.P., a Texas limited
partnership, effective upon the date of such contribution and continuing until
the next Determination Date, the Borrowing Base shall be reduced to $80,000,000
and the Canadian Borrowing Base shall be $52,000,000.
7. Representations and Warranties of Borrower. To induce Banks and Agent
to enter into this Amendment, each Borrower hereby represents and warrants to
Agent and each Bank that:
7.1. Reaffirmation of Representations and Warranties. Each
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representation and warranty of the Borrowers contained in the Credit
Agreement and the other Loan Papers is true and correct on the date hereof
and will be true and correct after giving effect to this Amendment.
7.2. Corporate Authority; No Conflicts. The execution and delivery of
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this Amendment and the performance by Borrowers of the Credit Agreement as
amended through this Amendment are within each Borrower's corporate powers,
have been duly authorized by necessary action, require no action by or in
respect of, or filing with any Governmental Authority and do not violate or
constitute a default under any provision of applicable Laws or any Material
Agreement binding upon either Borrower or result in the creation or
imposition of any Lien upon any of the assets of either Borrower except
Permitted Encumbrances.
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7.3. Enforceability. The Credit Agreement as amended through this
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Amendment constitutes the valid and binding obligation of each Borrower
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.
7.4. No Defenses. Neither Borrower has any defenses to payment,
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counterclaims or rights to set off with respect to the Obligations.
8. Miscellaneous.
8.1. Reaffirmation of Loan Papers. From and after the Effective Date,
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the Credit Agreement shall be amended and modified as herein provided, but
except as so amended and modified hereby, any and all of the terms and
provisions of the Credit Agreement and the Loan Papers shall remain in full
force and effect. The Credit Agreement and this Amendment shall be read,
taken and construed as one and the same instrument. All references to the
Credit Agreement in the Loan Papers shall be deemed to mean the Credit
Agreement as amended through this Amendment.
8.2. Parties in Interest. All of the terms and provisions of the
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Credit Agreement as amended through this Amendment shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns.
8.3. Legal Expenses. Borrowers hereby agree to pay on demand all
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reasonable fees and expenses of counsel to Agent incurred by Agent, in
connection with the preparation, negotiation and execution of this
Amendment and all related documents.
8.4. Counterparts. This Amendment may be signed in any number of
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counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument. This
Amendment shall become effective when the Agent shall have received
counterparts hereof signed by all of the parties hereto or, in the case of
any Bank as to which an executed counterpart shall not have been received,
the Agent shall have received telegraphic or other written confirmation
from such Bank of execution of a counterpart hereof by such Bank; however,
no party shall be bound by this Amendment until all parties have executed a
counterpart.
8.5. Headings. The headings, captions and arrangements used in this
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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.
8.6. Governing Law. THE CREDIT AGREEMENT AS AMENDED THROUGH THIS
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AMENDMENT AND, UNLESS OTHERWISE SPECIFIED THEREIN, ALL OF THE OTHER LOAN
PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH
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AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED STATES OF
AMERICA.
8.7. COMPLETE AGREEMENT. THE CREDIT AGREEMENT AS AMENDED THROUGH THIS
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AMENDMENT AND THE OTHER LOAN PAPERS 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers on the date and year first
written above.
BORROWERS:
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THE WISER OIL COMPANY,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Vice President
THE WISER OIL COMPANY
CANADA LTD.,
an Alberta corporation
By: /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx
Vice President
BANKS:
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NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Senior Vice President
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PNC BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
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Its: Vice President
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AGENT:
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NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Senior Vice President
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