EXHIBIT 10.5a
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "First Amendment") is
effective as of January 7, 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 (hereinafter
collectively referred to as "Banks", and individually, "Bank").
W I T N E S S E T H:
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WHEREAS, Borrower, Administrative Agent and Banks are parties to that
certain Credit Agreement dated as of December 20, 2002 (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, pursuant to the Credit Agreement, Banks have made revolving
credit loans to Borrower; and
WHEREAS, Borrower has requested that the Credit Agreement be amended in
certain respects; and
WHEREAS, subject to the terms and conditions set forth herein, 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 Banks hereby agree as follows:
SECTION 1. Amendments. In reliance on the representations, warranties,
covenants and agreements contained in this First Amendment, the Credit
Agreement is hereby amended effective as of the Effective Date in the manner
provided in this Section 1.
1.1. Amendment to Definition of "Loan Papers". The definition of "Loan
Papers" contained in Section 1.1 of the Credit Agreement shall be amended to
read in full as follows:
"Loan Papers" means this Agreement, the First 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.
1.2. Additional Definition. Section 1.1 of the Credit Agreement shall be
amended to add the following definition of "First Amendment" to such Section:
"First Amendment" means that certain First Amendment to Credit
Agreement dated as of January 7, 2003, among Borrower, Administrative
Agent and Banks.
1.3. Amendment to Section 2.1(b). The fourth sentence of the first paragraph
of Section 2.1(b) shall be amended to read in its entirety as follows:
"No Letter of Credit shall have an expiration date later than the
earlier of (i) one (1) year after the Termination Date, or (ii) fifteen
(15) months from the date of issuance (or, in the case of any renewal or
extension thereof, fifteen (15) months after such renewal or extension)."
SECTION 2. Representations and Warranties of Borrower. To induce Banks and
Administrative Agent to enter into this First Amendment, Borrower hereby
represents and warrants to Banks and Administrative Agent as follows:
2.1. Due Authorization; No Conflict. The execution, delivery and performance
by Borrower of this First 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.
2.2. Validity and Enforceability. This First 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.
SECTION 3. Miscellaneous.
3.1. 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.
3.2. Parties in Interest. All of the terms and provisions of this First
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
3.3. 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 First Amendment.
3.4. Counterparts. This First Amendment may be executed in counterparts, and
all parties need not execute the same counterpart; however, no party shall be
bound by this First Amendment until all parties have executed a counterpart.
Facsimiles shall be effective as originals.
3.5. Complete Agreement. THIS FIRST 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.
3.6. Headings. The headings, captions and arrangements used in this First
Amendment are, unless specified otherwise, for convenience only and shall not
be deemed to limit, amplify or modify the terms of this First Amendment, nor
affect the meaning thereof.
3.7. Effectiveness. This First 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 all Banks, and all conditions to the effectiveness
hereof set forth herein have been satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their respective Authorized Officers on the date and
year first above written.
[Signature pages to follow]
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
XXXXXXX PETROLEUM CORPORATION, AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
BORROWER:
XXXXXXX PETROLEUM CORPORATION, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: CEO
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SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BY AND AMONG
XXXXXXX PETROLEUM CORPORATION, AS BORROWER,
BANK ONE, NA, AS ADMINISTRATIVE AGENT
AND THE BANKS PARTY THERETO
ADMINISTRATIVE AGENT:
BANK ONE, NA
/s/ J. Xxxxx Xxxxxx
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J. Xxxxx Xxxxxx,
Director, Capital Markets
BANKS:
BANK ONE, NA
/s/ J. Xxxxx Xxxxxx
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J. Xxxxx Xxxxxx,
Director, Capital Markets
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Vice President
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