EXHIBIT 4.4
FIRST AMENDMENT
to
CREDIT AGREEMENT
by and among
WHITTIER ENERGY COMPANY, WHITTIER OPERATING, INC.
and
COMPASS BANK
This First Amendment ("First Amendment") to that certain Credit Agreement
dated July 17, 2002 by and among WHITTIER ENERGY COMPANY, a Nevada corporation
("Whittier Energy"), and WHITTIER OPERATING, INC., a Texas corporation
("Whittier Operating") (collectively, the "Borrower") and COMPASS BANK, an
Alabama state chartered bank (the "Bank"), is entered into on this 10th day of
March 2003.
W I T N E S S E T H:
Whereas, Borrower and Bank entered into that certain Credit Agreement dated
July 17, 2002 (the "Credit Agreement").
Whereas, Borrower has requested that Bank amend the Credit Agreement and
Bank has agreed to such amendments subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by Borrower and Bank, and each intending to be legally
bound hereby, the parties agree as follows:
I. Specific Amendments to Credit Agreement.
Article I of the Credit Agreement is hereby amended by adding the following
definitions thereto:
"Eagle Letter Agreement" means that certain Letter Agreement between
Eagle Energy Development Company, a Texas corporation, and Whittier
Operating dated February 13, 2003, which evidences, among other things,
Eagle Energy Development Company's agreement to assign the Borrowing Base
Properties, described on Supplemental. Schedule 1.01(a) attached to the
First Amendment, to Whittier Operating.
"First Amendment" means the First Amendment to this Agreement executed
by Borrower and Bank on March 10, 2003.
"Newfield Purchase and Sale Agreement" means that certain Purchase and
Sale Agreement by and between Newfield Exploration Company, as Seller, and
Eagle Energy Development Company, as Buyer, dated effective September 1,
2002.
Article I of the Credit Agreement is hereby further amended by revising the
following definition in its entirety to read as follows:
"Borrowing Base Properties" means those Oil and Gas Properties of
Borrower that will, with execution of the Loan Documents, be subject to
liens created by certain of the Security Instruments to secure the
Obligations, which initial Borrowing Base Properties are described in
Schedule 1.01(a) attached hereto and made a part hereof, as amended or
supplemented from time to time, and such Borrowing Base Properties to
include those Oil and Gas Properties described in Part Two of such Schedule
1.01(a) upon the satisfaction of the conditions precedent under Section
3.17 hereof.
The following sections of the Credit Agreement are hereby amended by
replacing the term "Whittier Energy" each time it appears therein with the term
"Borrower":
Section 3.13;
Section 3.16;
Section 4.04;
Section 4.06; and
Section 4.09.
Schedule 1.01(a) to the Credit Agreement is hereby amended by adding
thereto the Borrowing Base Properties described on Supplemental Schedule 1.01(a)
attached hereto.
Schedule 4.09 to the Credit Agreement is hereby amended by adding thereto
the purchasers of production listed on Supplemental Schedule 4.09 attached
hereto.
Schedule 4.11 to the Credit Agreement is hereby amended by adding thereto
those certain litigation matters listed on Supplemental Schedule 4.11 attached
hereto.
II. Conditions Precedent in Connection with the First Amendment. The
obligation of Bank to enter into the First Amendment is subject to satisfaction
of the following conditions precedent:
(a) Receipt of First Amendment and Compliance Certificate. Bank shall
have received multiple counterparts of the First Amendment, as requested by
Bank, and the Compliance Certificate duly executed by an authorized officer
for each Borrower.
(b) Accuracy of Representations and Warranties and No Event of
Default. The representations and warranties contained in Article IV of the
Credit Agreement shall be true and correct in all material respects on the
date of the First Amendment with the same effect as though such
representations and warranties had been made on such date; and no Event of
Default shall have occurred and be continuing.
(c) Legal Matters Satisfactory to Special Counsel to Bank. All legal
matters incident to the consummation of the transactions contemplated by
the First Amendment shall be satisfactory to the firm of Xxxxxx & Xxxxxx,
L.L.P., special counsel for Bank.
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(d) No Material Adverse Change. No material adverse change shall have
occurred since the date of the Credit Agreement in the condition, financial
or otherwise, of Borrower.
(e) Acquisition Agreements. Bank shall be satisfied in its sole
discretion that the transactions evidenced by the Newfield Purchase and
Sale Agreement and the Eagle Letter Agreement have been irrevocably closed
and Whittier Operating has been assigned the interests in those certain
Borrowing Base Properties described on Supplemental Schedule 1.01(a)
attached to this First Amendment.
III. Reaffirmation of Representations and Warranties. To induce Bank to
enter into this First Amendment, Borrower hereby reaffirms, as of the date
hereof, its representations and warranties contained in Article IV of the Credit
Agreement and in all other documents executed pursuant thereto, and additionally
represents and warrants as follows:
A. The execution and delivery of this First Amendment and the
performance by Borrower of its obligations under this First Amendment are
within Borrower's Corporate Power, have been duly authorized by all
necessary Corporate Action, have received all necessary governmental
approval (if any shall be required), and do not and will not contravene or
conflict with any provision of law or of the Governing Documentation of
Borrower or of any agreement binding upon Borrower.
B. The Credit Agreement as amended by this First Amendment, represents
the legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with its terms, subject as to enforcement only to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally.
C. No Event of Default or Unmatured Event of Default has occurred and
is continuing as of the date hereof.
IV. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Credit Agreement shall have the same meanings in this First
Amendment.
V. Reaffirmation of Credit Agreement. This First Amendment shall be deemed
to be an amendment to the Credit Agreement, and the Credit Agreement, as hereby
amended, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement herein and in any other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby.
VI. Entire Agreement. The Credit Agreement, as hereby amended, embodies the
entire agreement between Borrower and Bank and supersedes all prior proposals,
agreements and understandings relating to the subject matter hereof. Borrower
certifies that it is relying on no representation, warranty, covenant or
agreement except for those set forth in the Credit Agreement as hereby amended
and the other documents previously executed or executed of even date herewith.
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VII. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. This First Amendment has been entered into in Xxxxxx
County, Texas, and it shall be performable for all purposes in Xxxxxx County,
Texas. Courts within the State of Texas shall have jurisdiction over any and all
disputes between Borrower and Bank, whether in law or equity, including, but not
limited to, any and all disputes arising out of or relating to this First
Amendment or any other Loan Document; and venue in any such dispute whether in
federal or state court shall be laid in Xxxxxx County, Texas.
VIII. Severability. Whenever possible each provision of this First
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this First Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this First Amendment.
IX. Execution in Counterparts. Each party hereto acknowledges that this
Agreement may be executed in several counterparts by each party at different
times and in different locations; that each separate counterpart bearing the
signature of any party may be effectively delivered to the other parties by the
delivery of an electronic facsimile sent via telecopier; that each party so
delivering any such counterpart shall be bound by its facsimile signature
thereon; and that the signature pages from counterparts signed by each party may
be collated into one or more copies of this agreement, which shall constitute
one and the same agreement among all parties hereto.
X. Section Captions. Section captions used in this First Amendment are for
convenience of reference only, and shall not affect the construction of this
First Amendment.
XI. Successors and Assigns. This First Amendment shall be binding upon
Borrower and Bank and their respective successors and assigns, and shall inure
to the benefit of Borrower and Bank, and the respective successors and assigns
of Bank.
XII. Non-Application of Chapter 346 of Texas Finance Codes. In no event
shall Chapter 346 of the Texas Finance Code (which regulates certain revolving
loan accounts and revolving tri-party accounts) apply to this Credit Agreement
as hereby amended or any other Loan Document or the transactions contemplated
hereby.
XIII. Notice. THIS FIRST AMENDMENT TOGETHER WITH 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 SUBSEQUENT 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 First Amendment to
be effective as of the day and year above written.
BORROWER:
---------
WHITTIER OPERATING, INC.,
a Texas corporation
By:________________________________
Xxxxx X. Xxxxxx
Vice President
WHITTIER ENERGY COMPANY,
A Nevada corporation
By:________________________________
Xxxxx X. Xxxxxx
Vice President
BANK:
-----
COMPASS BANK
By:________________________________
Xxxxxxxx X. Xxxxx
Vice President
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Supplemental Schedule 1.01(a)
-----------------------------
Borrowing Base Properties
-------------------------
[See pages to follow.]
[Any reference to Exhibit A shall be deemed to reference
Supplemental Schedule 1.01(a).]
Supplemental Schedule 4.09
--------------------------
Purchasers of Production
------------------------
ConocoPhillips
000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Supplemental Schedule 4.11
--------------------------
Litigation
----------
1. Xxxxx Xxxxxx, et al. v. Conoco, Inc., et al., No. 74,427, 15th Judicial
District Court, Parish of Acadia, State of Louisiana.
2. Xxxxx Xxxxxx, et al. v. Conoco, Inc., et al., No. 75,038, 15th Judicial
District Court, Parish of Acadia, State of Louisiana.
