Exhibit 10.2

 

SEVENTH AMENDMENT

 

TO

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

Among

 

KODIAK OIL & GAS (USA) INC.

as Borrower,

 

WELLS FARGO BANK, N.A.,

as Administrative Agent,

 

and

 

The Lenders Signatory Hereto

 

 

Dated as of January 15, 2013

 











 

SEVENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

This Seventh Amendment to Amended and Restated Credit Agreement (this “Seventh Amendment”) effective as of the Seventh Amendment Effective Date (as defined below) is among Kodiak Oil & Gas (USA) Inc., a Colorado corporation (the “Borrower”), each of the Lenders that is a signatory hereto and Wells Fargo Bank, N.A., as administrative agent for the Lenders (in such capacity, together with its successors, the “Administrative Agent”).

 

Recitals

 

A.                                    The Borrower, the Administrative Agent and the Lenders are parties to that certain Amended and Restated Credit Agreement dated as of October 28, 2011 as amended by the First Amendment and Limited Waiver to Amended and Restated Credit Agreement, dated as of November 14, 2011, the Second Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2011, the Third Amendment to Amended and Restated Credit Agreement, dated as of January 10, 2012, the Fourth Amendment to Amended and Restated Credit Agreement, dated as of April 3, 2012, the Fifth Amendment to Amended and Restated Credit Agreement, dated as of May 11, 2012 and the Sixth Amendment to Amended and Restated Credit Agreement, dated as of October 15, 2012 (as amended, the “Credit Agreement”), pursuant to which the Lenders have made certain credit available to and on behalf of the Borrower.

 

B.                                    The Borrower has requested and the Administrative Agent and the Lenders have agreed to amend certain provisions of the Credit Agreement in order to allow the Parent to issue up to an additional $350,000,000 of 5.50% Senior Notes due 2021 (the “2013 Senior Notes”).

 

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 which is defined in the Credit Agreement, but which is not defined in this Seventh Amendment, shall have the meaning ascribed such term in the Credit Agreement.  Unless otherwise indicated, all section references in this Seventh Amendment refer to the Credit Agreement.

 

Section 2.                                           Amendments to Credit Agreement

 

2.1                               Definitions.

 

(a) Section 1.02 is hereby amended by inserting the following definition in the appropriate alphabetical order:

 

“‘Seventh Amendment’ shall mean that certain Seventh Amendment to Amended and Restated Credit Agreement, dated as of January 24, 2013.”

 

(b) Section 1.02 is hereby amended by amending and restating the following definition as follows:

 

“‘Subordinated Parent Debt’ means intercompany Debt between the Borrower and the Parent (i) that by its terms does not allow the Parent to ask for, sue for, take, demand or accept from the Borrower by set-off or in any other manner any payment of principal or interest until the termination of the Commitments, no Letter of Credit is outstanding and all Swap Agreements secured by the Loan Documents shall be terminated and which is subject to a subordination agreement among the Parent, the Borrower, the Administrative Agent and the Second Lien Agent or (ii) under the Intercompany Notes.”

 

2.2                               Section 9.02(k). Section 9.02(k) is hereby amended and restated as follows:

 

“(k)                           Debt under the Senior Notes, and any guarantees thereof by the Guarantors.”

 











 

Section 3.                                           Borrowing Base Stipulation.  The parties hereto confirm that the Borrowing Base shall not be adjusted by the Administrative Agent pursuant to 2.07(g) as a result of the issuance of the 2013 Senior Notes.  For the avoidance of doubt, this stipulation shall be limited to the issuance of the 2013 Senior Notes and shall not affect the ability of the Administrative Agent to adjust the Borrowing Base for future issuances of Senior Notes or as otherwise set forth in the Credit Agreement.

 

Section 4.                                           Conditions Precedent.  This Seventh Amendment shall be effective upon the date of the receipt by the Administrative Agent of the following documents and satisfaction of the other conditions provided in this Section 4, each of which shall be reasonably satisfactory to the Administrative Agent in form and substance (or waived in accordance with Section 12.02 of the Credit Agreement) (the “Seventh Amendment Effective Date”):

 

4.1                               Seventh Amendment.  The Administrative Agent shall have received multiple counterparts of this Seventh Amendment as requested from the Borrower and the Majority Lenders.

 

4.2                               No Default.  No Default or Event of Default shall have occurred and be continuing as of the Seventh Amendment Effective Date.

 

4.3                               Intercompany Note.  Administrative Agent shall have received a final version of the Intercompany Note reflecting the issuance of the 2013 Senior Notes.

 

4.4                               Other.  The Administrative Agent shall have received such other documents as the Administrative Agent or special counsel to the Administrative Agent may reasonably request in advance in writing.

 

The Administrative Agent is hereby authorized and directed to declare this Seventh 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 4 or the waiver of such conditions as permitted by Section 12.02 of the Credit Agreement.  Such declaration shall be final, conclusive and binding upon all parties to the Credit Agreement for all purposes.

 

Section 5.                   Ratification and Affirmation; Representations and Warranties; Etc.  The Borrower hereby (a) acknowledges the terms of this Seventh Amendment; (b) ratifies and affirms its obligations under, and acknowledges its 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 as expressly amended hereby; (c) represents and warrants that the 2013 Senior Notes comply with the requirements contained in the definition of “Senior Notes”, and (d) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the terms of this Seventh Amendment: (i) all of the representations and warranties contained in each Loan Document to which the Borrower is a party are true and correct in all material respects as though made on and as of the Seventh Amendment Effective Date (unless made as of a specific earlier date, in which case, such representation or warranty was true as of such date); (ii) no Default or Event of Default has occurred and is continuing; and (iii) no event or events have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

 

Section 6.                                           Miscellaneous.

 

6.1                               Confirmation.  The provisions of the Credit Agreement (as amended by this Seventh Amendment) shall remain in full force and effect in accordance with its terms following the effectiveness of this Seventh Amendment.  This Seventh Amendment shall constitute a Loan Document, as such term is defined in the Credit Agreement.

 

6.2                               No Waiver.  Except as expressly provided in this Seventh Amendment, neither the execution by the Administrative Agent or the Lenders of this Seventh Amendment, nor any other act or omission by the Administrative Agent or the Lenders or their officers in connection herewith, shall be deemed a waiver by the Administrative Agent or the Lenders of any Defaults or Events of Default which may exist, which may have occurred prior to the date of the effectiveness of this Seventh Amendment or which may occur in the future under the Credit Agreement and/or the other Loan Documents.  Similarly, nothing contained in this Seventh Amendment shall directly or indirectly in any way whatsoever either: (a) impair, prejudice or otherwise adversely affect the

 

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Administrative Agent’s or the Lenders’ right at any time to exercise any right, privilege or remedy in connection with the Loan Documents with respect to any Default or Event of Default, (b) amend or alter any provision of the Credit Agreement, the other Loan Documents (other than the amendments provided for in Section 2 of this Seventh Amendment), or any other contract or instrument, or (c) constitute any course of dealing or other basis for altering any obligation of the Borrower or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents, or any other contract or instrument.  Nothing in this Seventh Amendment shall be construed to be a consent by the Administrative Agent or the Lenders to any Default or Event of Default.  Each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or any other word or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby, and each reference in any other Loan Document to the Credit Agreement or any word or words of similar import shall be and mean a reference to the Credit Agreement as amended hereby.

 

6.3                               Counterparts.  This Seventh 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 Seventh Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

 

6.4                               Successors and Assigns.  This Seventh Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

6.5                               Payment of Expenses.  In accordance with Section 12.03 of the Credit Agreement, the Borrower agrees to pay or reimburse the Administrative Agent for all of its reasonable and documented out-of-pocket costs and reasonable expenses incurred in connection with this Seventh Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the reasonable and documented fees and disbursements of counsel to the Administrative Agent.

 

6.6                               Severability.  Any provision of this Seventh 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.

 

6.7                               No Oral Agreement.  THIS WRITTEN SEVENTH AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.

 

6.8                               Governing Law.  THIS SEVENTH AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to be duly executed effective as of the date first written above.

 

	
BORROWER:
    	
KODIAK   OIL & GAS (USA) INC., a Colorado Corporation
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ James P. Henderson
    
	
 
    	
Name:
    	
James P. Henderson
    
	
 
    	
Title:
    	
Chief Financial Officer
    


 

Signature Page - 1











 

	
ADMINISTRATIVE   AGENT:
    	
WELLS FARGO BANK,   N.A., as Administrative Agent
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Suzanne Ridenhour
    
	
 
    	
Name:
    	
Suzanne Ridenhour
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
LENDERS:
    	
WELLS FARGO BANK,   N.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Suzanne Ridenhour
    
	
 
    	
Name:
    	
Suzanne Ridenhour
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
KEYBANK NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Sherrie I. Manson
    
	
 
    	
Name:
    	
Sherrie I. Manson
    
	
 
    	
Title:
    	
Senior Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
BMO HARRIS FINANCING, INC.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ James V. Ducote
    
	
 
    	
Name:
    	
James V. Ducote
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ROYAL BANK OF CANADA
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Don J. McKinnerney
    
	
 
    	
Name:
    	
Don J. McKinnerney
    
	
 
    	
Title:
    	
Authorized Signatory
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
THE BANK OF NOVA SCOTIA
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ John Frazell
    
	
 
    	
Name:
    	
John Frazell
    
	
 
    	
Title:
    	
Director
    


 

Signature Page - 2











 

	
 
    	
SCOTIABANK, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ H. Thind
    
	
 
    	
Name:
    	
H. Thind
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Vipul Dhadda
    
	
 
    	
Name:
    	
Vipul Dhadda
    
	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Wei-Jen Yuan
    
	
 
    	
Name:
    	
Wei-Jen Yuan
    
	
 
    	
Title:
    	
Associate
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
COMERICA BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
U.S. BANK NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Tara McLean
    
	
 
    	
Name:
    	
Tara McLean
    
	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
JPMORGAN CHASE BANK, N.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ David Morris
    
	
 
    	
Name:
    	
David Morris
    
	
 
    	
Title:
    	
Authorized Officer
    


 

Signature Page - 3











 

	
 
    	
DEUTSCHE BANK TRUST COMPANY AMERICAS
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kevin Chichester
    
	
 
    	
Name:
    	
Kevin Chichester
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Robert M. Wood Jr.
    
	
 
    	
Name:
    	
Robert M. Wood Jr.
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
SUNTRUST BANK
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Yann Pirio
    
	
 
    	
Name:
    	
Yann Pirio
    
	
 
    	
Title:
    	
Director
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
CADENCE BANK, N.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Eric Broussard
    
	
 
    	
Name:
    	
Eric Broussard
    
	
 
    	
Title:
    	
Senior Vice President
    


 

Signature Page - 4











 

REAFFIRMATION AND RATIFICATION: Each Guarantor hereby (a) acknowledges the terms of this Seventh Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document, including each Guaranty Agreement, to which it is a party and agrees that each Loan Document, including each Guaranty Agreement, to which it is a party remains in full force and effect as expressly amended hereby; and (c) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the terms of this Seventh Amendment: (i) all of the representations and warranties contained in each Loan Document, including each Guaranty Agreement, to which such Guarantor is a party are true and correct in all material respects as though made on and as of the Seventh Amendment Effective Date (unless made as of a specific earlier date, in which case, such representation or warranty was true as of such date); (ii) no Default or Event of Default has occurred and is continuing; and (iii) no event or events have occurred which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

 

	
ACKNOWLEDGED AND RATIFIED:
    	
KODIAK OIL & GAS CORP., a corporation   continued under
   the laws of Yukon Territories, Canada
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ James P. Henderson
    
	
 
    	
 
    	
James P. Henderson
    
	
 
    	
 
    	
Chief Financial Officer
    


 

Seventh Amendment

Acknowledgment and Ratification