EXHIBIT 4.4
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Second Amendment") is
effective as of June 30, 2003 (the "Effective Date"), by and among XXXXXXX
PETROLEUM CORPORATION, a Delaware corporation ("Borrower"), BANK ONE, NA, a
national banking association, as Administrative Agent ("Administrative Agent"),
and each of the financial institutions a party hereto as Banks (hereinafter
collectively referred to as "Executing Banks," and individually, an "Executing
Bank").
W I T N E S S E T H :
WHEREAS, Borrower, Administrative Agent and Banks are parties to that
certain Credit Agreement dated as of December 20, 2002, as amended by that
certain First Amendment to Credit Agreement dated as of January 7, 2003 (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, Borrower has advised Banks that AER intends to dispose of its
stock in Borrower in transactions which may include (a) a sale of the shares of
common stock of Borrower in a private transaction to the Designated Shareholders
(as hereinafter defined), and/or (b) a sale of the shares of common stock of
Borrower to the public pursuant to an initial public offering under the Exchange
Act; and
WHEREAS, the transactions described in the preceding paragraph are
prohibited by certain provisions of the Credit Agreement as in effect on the
date hereof; and
WHEREAS, Borrower has requested that the Credit Agreement be amended in
certain respects to permit such transactions; and
WHEREAS, subject to and upon the terms and conditions set forth herein,
Executing Banks have agreed to Borrower's 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,
Borrower, Administrative Agent and each Executing Bank hereby agree as follows:
SECTION 1. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this Second Amendment, and subject to the
satisfaction of each condition precedent set forth in Section 2 hereof, the
Credit Agreement is hereby amended effective as of the Effective Date in the
manner provided in this Section 1.
1.1. Amendment to Definitions. The definitions of "Change of
Control," "Loan Papers" and "Restricted Payment" contained in Section 1.1 of the
Credit Agreement shall be amended to read in full as follows:
"Change of Control" means that, for any reason (a) at any time
prior to the completion of a Qualified Public Offering or the Equity
Investment, Borrower shall cease to be a wholly-owned direct or indirect
Subsidiary of Alliant, (b) at any time prior to the completion of a
Qualified Public Offering but after the completion of the Equity
Investment, Alliant shall cease to hold, directly or indirectly, at
least fifty one percent (51%) of the total voting power of all classes
of capital stock then outstanding of Borrower entitled (without regard
to the occurrence of any contingency) to vote in elections of directors
of Borrower, (c) at any time prior to the completion of the Equity
Investment but after the completion of a Qualified Public Offering, any
Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) other than Alliant shall become (i) the direct or indirect
beneficial owner (as defined in Section 13(d)(3) of the Exchange Act) of
greater than forty-nine percent (49%) of the total voting power of all
classes of capital stock then outstanding of Borrower entitled (without
regard to the occurrence of any contingency) to vote in elections of
directors of Borrower, and (ii) the largest shareholder of the total
voting power of all classes of capital stock then outstanding of
Borrower entitled (without regard to the occurrence of any contingency)
to vote in elections of directors of Borrower, and (d) at any time after
the completion of a Qualified Public Offering and the Equity Investment,
any Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) other than the Designated Shareholders shall become (i)
the direct or indirect beneficial owner (as defined in Section 13(d)(3)
of the Exchange Act) of greater than forty-nine percent (49%) of the
total voting power of all classes of capital stock then outstanding of
Borrower entitled (without regard to the occurrence of any contingency)
to vote in elections of directors of Borrower, and (ii) the largest
shareholder of the total voting power of all classes of capital stock
then outstanding of Borrower entitled (without regard to the occurrence
of any contingency) to vote in elections of directors of Borrower.
"Loan Papers" means this Agreement, the First Amendment, the
Second Amendment, the Notes, each Facility Guaranty which may now or
hereafter be executed, each Borrower Pledge Agreement which may now or
hereafter be executed, each Subsidiary Pledge Agreement which may now or
hereafter be executed, all Mortgages now or at any time hereafter
delivered pursuant to Section 5.1, all Letters of Credit, and all other
certificates, documents or instruments delivered in connection with this
Agreement, as the foregoing may be amended from time to time.
"Restricted Payment" means, with respect to any Person, (a) any
Distribution by such Person, (b) any capital contribution, loan or
advance by any Credit Party to any Unrestricted Subsidiary, (c) the
issuance of a Guarantee by any Credit Party with respect to any Debt or
other obligation of Parent, Alliant, AER or any Unrestricted Subsidiary,
or (d) the retirement, redemption, defeasance, repurchase or prepayment
prior to scheduled maturity by such Person or any Affiliate of such
Person of any Debt of such Person.
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1.2. Additional Definitions. Section 1.1 of the Credit Agreement
shall be amended to add the following definitions to such Section:
"Designated Shareholders" means shareholders of Borrower, other
than Alliant, which are designated by Borrower, and approved by Required
Banks, as "Designated Shareholders" pursuant to a written designation
and notice executed and delivered by Borrower to, and acknowledged by,
Administrative Agent (on behalf of Required Banks).
"Equity Investment" means the purchase by the Designated
Shareholders of the common stock of Borrower, with the proceeds of such
purchase being distributed to Alliant or Borrower to be applied, in the
case of proceeds distributed to Borrower, towards the purchase of oil
and gas properties.
"Qualified Public Offering" means the first underwritten public
offering pursuant to an effective registration statement under the
Exchange Act covering the offering and sale of the common stock of
Borrower.
"Second Amendment" means that certain Second Amendment to Credit
Agreement dated as of June 30, 2003, among Borrower, Administrative
Agent and Banks.
1.3. Deletion of Definitions. Section 1.1 of the Credit Agreement
shall be amended to delete the definitions of "Consolidated Senior Debt,"
"Subordinate Debt," "Subordinate Loan Documents" and "Subordinate Note" from
such Section.
1.4. Amendment to Organizational Representation. Section 7.13 of the
Credit Agreement shall be amended to read in full as follows:
"Section 7.13 Organizational Structure; Nature of Business. As
of the Closing Date and the Effective Date (as defined therein) of the
Second Amendment, Borrower has no direct, wholly-owned Subsidiaries,
other than Xxxxxxx-Xxxxxx Gas, WOK and Xxxxxxx Programs. Xxxxxxx
Programs is the general partner of various partnerships that own oil and
gas properties that are not Borrowing Base Properties. Borrower also
owns, directly and partially indirectly through Xxxxxxx Programs, one
hundred percent (100%) of the Equity in Xxxxxxx Institutional, which has
assets of not greater than $2,000,000, and which assets are not included
in the Borrowing Base. Borrower is engaged only in the business of
acquiring, exploring, developing and operating Mineral Interests and the
production, processing and marketing of Hydrocarbons therefrom. Schedule
7.13 attached hereto accurately reflects (i) the jurisdiction of
incorporation or organization of each Credit Party, (ii) each
jurisdiction in which each Credit Party is qualified to transact
business as a foreign corporation, foreign partnership or foreign
limited liability company, (iii) the authorized, issued and outstanding
Equity of each Credit Party (and the record and beneficial owners of
such Equity interests), and (iv) all outstanding warrants, options,
subscription rights, convertible securities or other rights to purchase
Equity of each Credit Party. Promptly following the completion of the
Equity Investment and/or a Qualified Public Offering,
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Borrower shall prepare and deliver to Administrative Agent, as
applicable, an amended Schedule 7.13 reflecting changes resulting from
the consummation of such transactions."
1.5. Subordinate Loan Representation. Section 7.21 of the Credit
Agreement shall be amended to read in full as follows:
"Section 7.21 [Intentionally Deleted]."
1.6. Amendment to Information Covenant. Section 8.1(d) of the Credit
Agreement shall be amended to read in full as follows:
"(d) promptly upon (i) the filing thereof, copies of all
final registration statements, post-effective amendments thereto and
annual, quarterly or special reports which any Credit Party shall have
filed with the Securities and Exchange Commission; provided, that
Borrower must deliver, or cause to be delivered, any annual reports
which any Credit Party shall have filed with the Securities and Exchange
Commission, within ninety (90) days after the end of each Fiscal Year of
such Credit Party, and any quarterly reports which any Credit Party
shall have filed with the Securities and Exchange Commission, within
forty-five (45) days after the end of each of the first three (3) Fiscal
Quarters of each Fiscal Year of such Credit Party, and (ii) the mailing
thereof to the stockholders of any Credit Party generally, copies of all
financial statements, reports and proxy statements so mailed;".
1.7. Amendment to Debt Covenant. Section 9.1 of the Credit Agreement
shall be amended to read in full as follows:
"Section 9.1 Incurrence of Debt. Borrower will not, nor will
Borrower permit any other Credit Party to, incur, become or remain
liable for any Debt other than (a) the Obligations, and (b) other
unsecured Debt in an aggregate amount outstanding at any time not to
exceed $5,000,000."
1.8. Amendment to Asset Disposition Covenant. The last sentence of
Section 9.5 of the Credit Agreement shall be amended to read in full as follows:
"Except in connection with the Equity Investment or a Qualified
Public Offering, in no event will Borrower sell, transfer or dispose of
any Equity in any Subsidiary nor will any Credit Party issue or sell any
Equity or any option, warrant or other right to acquire such Equity or
security convertible into such Equity to any Person other than the
Credit Party which is the direct parent of such issuer on the Closing
Date."
1.9. Amendment to Organizational Documents Covenant. Section 9.6 of
the Credit Agreement shall be amended to read in full as follows:
"Section 9.6 Amendments to Organizational Documents; Other
Material Agreements. Borrower will not, nor will Borrower permit any
other Credit Party to, enter into or permit any modification or
amendment of, or waive any material right or obligation of any Person
under, its certificate or articles of incorporation, bylaws, partnership
agreement, regulations or other organizational documents other than
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amendments, modifications and waivers (a) in connection with the Equity
Investment or a Qualified Public Offering, or (b) which will not,
individually or in the aggregate, have a Material Adverse Effect."
1.10. Deletion of Subordinate Debt Covenant. Section 9.14 of the
Credit Agreement shall be amended to read in full as follows:
"Section 9.14 [Intentionally Deleted]."
1.11. Amendment to Financial Covenants. Section 10.2 and Section 10.3
of the Credit Agreement shall be amended to read in full as follows:
"Section 10.2 Consolidated Total Debt to Annualized Consolidated
EBITDAX. As of the end of any Fiscal Quarter, commencing with the Fiscal
Quarter ending December 31, 2002, Borrower will not permit its ratio of
Consolidated Total Debt to Annualized Consolidated EBITDAX to be greater
than 3.0 to 1.0.
Section 10.3 [Intentionally Deleted]."
1.12. Amendments to Events of Default. Subsections (m) and (n) of
Section 11.1 of the Credit Agreement shall be amended to read in full as
follows:
"(m) a default or event of default shall occur under any Hedge
Agreement under which the liability to Borrower could reasonably be
expected to exceed $1,000,000, and any grace period applicable thereto
shall have lapsed without cure or waiver of such default or event of
default; or
(n) [intentionally deleted];".
SECTION 2. Conditions Precedent. The effectiveness of the amendments to
the Credit Agreement contained in Section 1 hereof is subject to the
satisfaction, on or prior to the Effective Date, of each condition precedent set
forth in this Section 2:
2.1. Amendment Fee. Upon execution of this Second Amendment by
Required Banks, Borrower shall pay to Administrative Agent, for the benefit of
Executing Banks, a fee in the amount of $5,000 for each Executing Bank. Such
$5,000 fee shall be distributed by Administrative Agent to each Executing Bank
provided that such Executing Bank executes and delivers this Second Amendment on
or before June 30, 2003.
2.2. Fees and Expenses. Borrower shall have paid all fees and
expenses incurred by Administrative Agent in connection with the preparation,
negotiation and execution of this Second Amendment, including, without
limitation, all fees and expenses of Xxxxxx & Xxxxxx L.L.P., counsel to
Administrative Agent.
2.3. No Defaults. No Default or Event of Default shall exist.
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SECTION 3. Representations and Warranties of Borrower. To induce
Executing Banks and Administrative Agent to enter into this Second Amendment,
Borrower hereby represents and warrants to Banks and Administrative Agent as
follows:
3.1. Due Authorization; No Conflict. The execution, delivery and
performance by Borrower of this Second Amendment are within Borrower's corporate
powers, have been duly authorized by all necessary action, require no action by
or in respect of, or filing with, any governmental body, agency or official and
do not violate or constitute a default under any provision of applicable law or
any Material Agreement binding upon Borrower or result in the creation or
imposition of any Lien upon any of the assets of Borrower except Permitted
Encumbrances.
3.2. Validity and Enforceability. This Second Amendment constitutes
the valid and binding obligation of 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.
3.3. Accuracy of Representations and Warranties. Each representation
and warranty of each Credit Party contained in the Loan Papers is true and
correct in all material respects as of the Effective Date (except to the extent
such representations and warranties are expressly made as of a particular date,
in which event such representations and warranties were true and correct as of
such date).
3.4. Absence of Defaults. No Default or Event of Default has occurred
which is continuing.
3.5. No Defense. Borrower has no defense to payment of, or any
counterclaim or rights of set-off with respect to, all or any portion of the
Obligations.
SECTION 4. Miscellaneous.
4.1. Reaffirmation of Loan Papers. Any and all of the terms and
provisions of the Credit Agreement and the Loan Papers shall, except as amended
and modified hereby, remain in full force and effect. The amendments
contemplated hereby shall not limit or impair any Liens securing the
Obligations, each of which are hereby ratified, affirmed and extended to secure
the Obligations.
4.2. Parties in Interest. All of the terms and provisions of this
Second Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
4.3. Legal Expenses. Borrower hereby agrees to pay on demand all
reasonable fees and expenses of counsel to Administrative Agent incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of this Second Amendment.
4.4. Counterparts. This Second Amendment may be executed in
counterparts, and all parties need not execute the same counterpart; however, no
party shall be bound by this
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Second Amendment until Borrower and Required Banks have executed a counterpart.
Facsimiles shall be effective as originals.
4.5. Complete Agreement. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT
AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT AMONG 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 OR AMONG THE
PARTIES.
4.6. Headings. The headings, captions and arrangements used in this
Second Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Second Amendment,
nor affect the meaning thereof.
4.7. Effectiveness. This Second Amendment shall be effective
automatically and without necessity of any further action by Borrower,
Administrative Agent or Banks when counterparts hereof have been executed by
Borrower, Administrative Agent and Required Banks, and all conditions to the
effectiveness hereof set forth herein and in the Credit Agreement have been
satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed by their respective Authorized Officers on the date and year
first above written.
[Signature pages to follow]
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SIGNATURE PAGE TO
SECOND AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
XXXXXXX PETROLEUM CORPORATION, AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
BORROWER: FORTIS CAPITAL CORP.
XXXXXXX PETROLEUM CORPORATION, By: /s/ Xxxxx Xxxxxxxxxx
a Delaware corporation ---------------------------
Name: Xxxxx Xxxxxxxxxx
By: /s/ Xxxxx X. Xxxxxx Title: Senior Vice President
-------------------------
Name: Xxxxx X. Xxxxxx
Title: President/CEO By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
ADMINISTRATIVE AGENT: U.S. BANK NATIONAL ASSOCIATION
BANK ONE, NA By: /s/ Xxxxxxx X. Purchase
------------------------------
Name: Xxxxxxx X. Purchase
/s/ J. Xxxxx Xxxxxx Title: Vice President
--------------------------------
J. Xxxxx Xxxxxx
Director, Capital Markets
BANKS: UNION BANK OF CALIFORNIA, N.A.
BANK ONE, NA By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
/s/ J. Xxxxx Xxxxxx Title: Vice President
--------------------------------
J. Xxxxx Xxxxxx
Director, Capital Markets By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL BANK OF SCOTLAND
ASSOCIATION
By: /s/ Xxxxx X. Xxx
By: /s/ Xxxxxx Xxxxxxx ------------------------------
----------------------- Name: Xxxxx X. Xxx
Name: Xxxxxx Xxxxxxx Title: Director, Business Services
Title: Vice President
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XXXXX FARGO BANK, N.A. COMPASS BANK
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx X. [Illegible]
----------------------- ------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxx X. [Illegible]
Title: Relationship Manager Title: Senior Vice President
BANK OF OKLAHOMA, N.A. NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President Title: Vice President & Group Manager
By: /s/ Xxxxxx Xxxxx
COMERICA BANK - TEXAS ------------------------------
Name: Xxxxxx Xxxxx
By: /s/ Xxxxxx X. Xxxxx Title: Vice President
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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