EXHIBIT 4.5
SECOND AMENDMENT
to
CREDIT AGREEMENT
by and among
WHITTIER ENERGY COMPANY, WHITTIER OPERATING, INC.
and
COMPASS BANK
This Second Amendment ("Second 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"), as amended by the First Amendment
thereto dated March 10, 2003 is entered into effective as of the 9th day of
September 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, as amended by the First Amendment thereto dated March 10, 2003
(the "Credit Agreement").
Whereas, as of the date hereof the stock ownership of Whittier Energy has
been restructured and certain other corporate restructuring has occurred with
regard to the Parent Company of Whittier Energy.
Whereas, Borrower has requested that Bank amend and waive certain
provisions under the Credit Agreement and Bank has agreed to such amendments and
waivers 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 revising the
following defined term in its entirety to read as follows:
"Loan Documents" means this Agreement, the Guaranty, the Pledge
Agreements and all promissory notes, security agreements, guaranties, and
other instruments, documents, and agreements executed and delivered
pursuant to or in connection with this Agreement, as such instruments,
documents, and agreements may be amended, modified, renewed, extended, or
supplemented from time to time.
Article I of the Credit Agreement is hereby amended by adding the following
definitions thereto:
"Agreement and Plan of Merger" means that certain Agreement and Plan
of Merger dated as of July 8, 2003, between WEC Acquisition and Whittier
Energy Company.
"Guaranty" means that certain Unlimited Guaranty executed by Parent
Company in favor of Bank in the form attached to the Second Amendment as
Exhibit "A."
"Merger" means that certain merger transaction of WEC Acquisition with
and into ▇▇▇▇▇▇▇ Energy Company as evidenced by that certain Agreement and
Plan of Merger and the other Merger Documents.
"Merger Documents" means those several documents executed in
connection with the Merger including, without limitation, (1) the Agreement
and Plan of Merger, (2) the Articles of Merger dated September 9, 2003 of
WEC Acquisition and Whittier Energy, (3) the Contribution Agreement dated
July 28, 2003 between Parent Company and WEC Acquisition, (4) the Articles
of Amendment to the Articles of Incorporation of Parent Company filed with
the Secretary of State of Wyoming on July 21, 2003 and (5) the Omnibus
Agreement.
"Olympic Resources" means Olympic Resources Ltd., a Wyoming
corporation and any assignee or successor thereof, including specifically,
Whittier Energy Corporation, the anticipated name of the corporation to be
the successor by name change of Olympic Resources which is to be
reincorporated under the laws of Nevada.
"Olympic Resources (Arizona)" means Olympic Resources (Arizona) Ltd.,
an Arizona corporation, a wholly-owned subsidiary of Parent Company.
"Omnibus Agreement" means that certain Agreement among Parent Company,
WEC Acquisition and Whittier Energy dated July 8, 2003.
"Parent Company" means Olympic Resources, and, upon the name change of
Olympic Resources to Whittier Energy Corporation and its reincorporation as
a Nevada corporation, Whittier Energy Corporation.
"Pledge Agreements" means, collectively, the Stock Pledge Agreement
executed by Parent Company in favor of Bank covering the capital stock of
Whittier Energy in the form attached to the Second Amendment as Exhibit "B"
and the Stock Pledge Agreement executed by Whittier Energy in favor of Bank
covering the capital stock of Whittier Operating in the form attached to
the Second Amendment as Exhibit "C."
"Second Amendment" means the Second Amendment to this Agreement dated
effective by Borrower and Bank on September 9, 2003.
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"WEC Acquisition" means WEC Acquisition, Inc., a Wyoming corporation
and wholly-owned subsidiary of Parent Company.
"Whittier Energy Corporation" means Whittier Energy Corporation, a
Nevada corporation, upon the name change and reincorporation of Olympic
Resources.
Article IV, Representations and Warranties, of the Credit Agreement is
hereby amended by adding the following new sections:
Section 4.24. Merger Documents; Ownership of Borrower. Each
representation and warranty of Whittier Energy in the Merger Documents is
true and correct in all respects and, to Whittier Energy's knowledge, each
representation and warranty made by each party, other than Whittier Energy,
in the Merger Documents are true and correct in all respects. Whittier
Energy has provided full, complete and accurate copies of the Merger
Documents to Bank.
Section 4.25. Restructure. Upon the execution of the Merger Documents,
Whittier Energy will be a wholly-owned subsidiary of Parent Company; and
the Whittier Family Group will own, indirectly through Parent Company,
eighty-five (85%) of the outstanding capital stock of Whittier Energy.
Section 4.26. Merger Authorization. The execution and delivery by
Whittier Energy of the Merger Documents, to which it is a party, and the
consummation of the Merger are (a) within the Corporate Power of Whittier
Energy; (b) have been duly authorized by all necessary Corporate Action of
Whittier; and (c) do not and will not (i) require the consent of any
regulatory authority, governmental body, or any other Person, (ii) violate
any provision of law, the Certificate of Formation of Whittier Energy, or
the Governing Documentation of Whittier Energy, (iii) cause a default to
occur under the terms and provisions of any indenture, instrument or other
agreement to which Whittier Energy is a party or by which its property may
be presently bound or encumbered, or (iv) result in or require the creation
or imposition of any mortgage, lien, pledge, security interest, charge or
other encumbrance in, upon or of any of the properties or assets of
Whittier Energy under any such indenture, instrument or other agreement.
Section 5.03, Quarterly Financial Statements, of the Credit Agreement is
hereby amended by replacing the entire section with the following text:
Section 5.03. Quarterly Financial Statements of Borrower. Deliver to
Bank, on or before the sixtieth (60th) day after the end of each of the
calendar quarters of each fiscal year, beginning with the quarter ending
September 30, 2003, consolidated and consolidating unaudited Financial
Statements of Parent Company as at the end of such period and from the
beginning of such fiscal year to the end of the respective period, as
applicable, which Financial Statements shall be certified by the president,
vice president or chief financial officer of Parent Company as being true
and correct, subject to changes resulting from year-end audit adjustments.
Section 5.04, Annual Financial Statements of Borrower, of the Credit
Agreement is hereby amended by replacing the entire section with the following
text:
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Section 5.04. Annual Financial Statements. Deliver to Bank, on or
before the one hundred twentieth (120th) day after the close of each fiscal
year of Borrower, beginning with the fiscal year ending December 31, 2003,
(i) annual consolidated audited Financial Statements of Parent Company for
such fiscal year and (ii) annual consolidating unaudited Financial
Statements of Parent Company for such fiscal year.
Section 5.21, Changes in Management, of the Credit Agreement is hereby
amended by adding the following sentence at the end of that Section:
Attached to the Second Amendment as Schedule 5.21 is a list of the
directors and officers of Whittier Energy as of the date of the Merger.
Article V, Affirmative Covenants, of the Credit Agreement is hereby amended
by adding the following new sections:
Section 5.33, Additional Loan Documents. Within 20 days of the date of
the Second Amendment, Borrower shall deliver or cause to be delivered to
Bank, as the case may be, fully executed counterparts of the Guaranty and
the Pledge Agreements, together with executed blank stock powers.
Section 5.34, Corporate Resolutions of Parent Company. Within 20 days
of the date of the Second Amendment, Bank shall have received from Parent
Company, (i) its Governing Documentation certified by the secretary or
assistant secretary of Parent Company, (ii) copies of all resolutions of
its Governing Body authorizing the transactions set forth in Guaranty and
the Pledge Agreement to which it is a party, such copy or copies to be
certified by the secretary or an assistant secretary of Parent Company, as
being true and correct and in full force and effect as of the date hereof.
In addition, Bank shall have received from Parent Company a certificate of
incumbency signed by a secretary or an assistant secretary of Parent
Company, setting forth (a) the names of the officers executing Guaranty and
the Pledge Agreement to which it is a party, (b) the office(s) to which
such Persons have been elected and in which they presently serve and (c) an
original specimen signature of each such person.
Section 6.01, Loans, Advances or Investments, of the Credit Agreement is
hereby amended by replacing the entire section with the following text:
Section 6.01, Loans, Advances or Investments. Make or agree to make or
allow to remain outstanding any loans or advances to any Person, including
Affiliates of Borrower, or make Investments in or purchase or otherwise
acquire all or substantially all of the assets of any Person, or any shares
of stock of, or similar interest in, any Person, in amounts which exceed
$200,000 in the aggregate for any and all of the foregoing, except (i)
advances or extensions of credit in the form of accounts receivable
incurred in the ordinary course of business, (ii) advances made by Borrower
in its capacity as operator of oil, gas and other mineral properties for
the benefit of the working interest owners pursuant to standard industry
practices, and (iii) Whittier Energy's Investment in those certain Persons
described on Schedule 6.01 attached hereto.
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Section 6.09, Management and Shareholder Control, of the Credit Agreement
is hereby amended by replacing the entire section with the following text:
Section 6.09, Management and Shareholder Control. Cause or permit the
Whittier Family Group to own, directly or indirectly, through Parent
Company, less than fifty-one percent (51%) of the total equity or the
voting stock of Whittier Energy and Whittier Operating.
II. Waiver. Bank hereby grants Borrower a one-time waiver of the provisions
of Section 6.07 and Section 6.09 of the Credit Agreement solely for the purposes
of permitting the consummation of the Merger.
III. Conditions Precedent in Connection with the Second Amendment. The
obligation of Bank to enter into the Second Amendment is subject to satisfaction
of the following conditions precedent:
(a) Receipt of Second Amendment, Compliance Certificate and Loan
Documents. Bank shall have received multiple counterparts of the Second
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 Second 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 Second Amendment shall be satisfactory to the firm of ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
L.L.P., special counsel for Bank.
(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.
IV. Reaffirmation of Representations and Warranties. To induce Bank to
enter into this Second 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 Second Amendment and the
performance by Borrower of its obligations under this Second 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.
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B. The execution and delivery of the Loan Documents to which Parent
Company is a party and the performance by Parent Company of its obligations
under such Loan Documents are and will be within Parent Company'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 Parent Company or of any agreement
binding upon Parent Company.
C. The Credit Agreement as amended by this Second 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. The Loan Documents to which Parent Company is a party represent
and will represent the legal, valid and binding obligations of Parent
Company, enforceable against Parent Company in accordance with their terms,
subject as to enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally.
D. No Event of Default or Unmatured Event of Default has occurred and
is continuing as of the date hereof.
V. Defined Terms. Except as amended hereby, terms used herein that are
defined in the Credit Agreement shall have the same meanings in this Second
Amendment.
VI. Reaffirmation of Credit Agreement. This Second 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.
VII. 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.
VIII. Governing Law. THIS SECOND 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 Second Amendment has been entered
into in ▇▇▇▇▇▇ County, Texas, and it shall be performable for all purposes in
▇▇▇▇▇▇ 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 Second Amendment or any other Loan Document; and venue in any such
dispute whether in federal or state court shall be laid in ▇▇▇▇▇▇ County, Texas.
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IX. Severability. Whenever possible each provision of this Second Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Second 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
Second Amendment.
X. 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.
XI. Section Captions. Section captions used in this Second Amendment are
for convenience of reference only, and shall not affect the construction of this
Second Amendment.
XII. Successors and Assigns. This Second 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.
XIII. 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.
XIV. Notice. THIS SECOND 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.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be effective as of the day and year above written.
BORROWER:
---------
WHITTIER OPERATING, INC.,
a Texas corporation
By:
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
WHITTIER ENERGY COMPANY,
a Nevada corporation
By:
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
BANK:
-----
COMPASS BANK
By:
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
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SCHEDULE 5.21
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Directors and Officers of Whittier Energy
o ▇▇▇▇▇ ▇. ▇▇▇▇▇ - Chairman
o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director, President and CEO
o ▇▇▇▇▇ ▇. ▇▇▇▇, Director
o ▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Director
o ▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
o ▇▇▇▇ ▇▇▇▇▇▇, Director
o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, COO
o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CFO and Treasurer
o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Corporate Secretary