1
--------------------------------------------------------------------------------
THIRD AMENDMENT
TO
CREDIT AGREEMENT
AMONG
XXXXXX & XXXXX CORPORATION,
THE CANTON OIL & GAS COMPANY,
XXXXX ENERGY, INC.,
XXXX LAKE DRILLING, INC.,
BANK ONE, TEXAS, NATIONAL ASSOCIATION
AND
NBD BANK
EFFECTIVE AS OF MAY 25, 1995
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . 1
1.1 Terms Defined Above . . . . . . . . . . . . . . . . . . . 1
1.2 Terms Defined in Agreement . . . . . . . . . . . . . . . . 1
1.3 References . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Articles and Sections . . . . . . . . . . . . . . . . . . 2
1.5 Number and Gender . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II AMENDMENT OF AGREEMENT . . . . . . . . . . . . . . . . . . 2
2.1 Amendment of Section 1.2 . . . . . . . . . . . . . . . . . 2
2.2 Amendment of Section 2.1 . . . . . . . . . . . . . . . . . 4
2.3 Amendment of Section 2.3 . . . . . . . . . . . . . . . . . 6
2.4 Amendment of Section 2.5 . . . . . . . . . . . . . . . . . 6
2.5 Amendment of Section 2.7 . . . . . . . . . . . . . . . . . 6
2.6 Amendment of Section 2.9 . . . . . . . . . . . . . . . . . 7
2.7 Amendment of Section 2.11 . . . . . . . . . . . . . . . . 8
2.8 Amendment of Section 2.13 . . . . . . . . . . . . . . . . 8
ARTICLE III CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . 9
3.1 Receipt of Documents . . . . . . . . . . . . . . . . . . . 9
3.2 No Material Adverse Change . . . . . . . . . . . . . . . . 9
3.3 No Default or Event of Default . . . . . . . . . . . . . . 9
3.4 Accuracy of Representations and Warranties . . . . . . . . 9
3.5 Additional Matters . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 10
ARTICLE V RATIFICATION . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 10
6.1 Scope of Amendment . . . . . . . . . . . . . . . . . . . . 10
6.2 Agreement as Amended . . . . . . . . . . . . . . . . . . . 10
6.3 Successors and Assigns; Rights of Third Parties . . . . . 10
6.4 Further Assurances . . . . . . . . . . . . . . . . . . . . 11
6.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 11
6.6 ENTIRE AGREEMENT; NO ORAL AGREEMENTS . . . . . . . . . . . 11
6.7 JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . 11
6.8 WAIVER OF RIGHTS TO JURY TRIAL AND PUNITIVE DAMAGES . . . 00
-x-
0
XXXXX XXXXXXXXX TO CREDIT AGREEMENT
-----------------------------------
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
made and entered into effective as of May 25, 1995, by and among XXXXXX & BLAKE
CORPORATION, an Ohio corporation ("BBC"), THE CANTON OIL & GAS COMPANY, an Ohio
corporation ("COG"), XXXXX ENERGY, INC., a Delaware corporation ("XXXXX
ENERGY"), XXXX LAKE DRILLING, INC., a Michigan corporation ("XXXX LAKE;" with
BBC, COG and Xxxxx Energy each a "BORROWER" and collectively, the "BORROWERS"),
BANK ONE, TEXAS, NATIONAL ASSOCIATION, a national banking association ("BANK
ONE"), and NBD BANK, a Michigan banking corporation, formerly known as NBD
Bank, N.A., a national banking association ("NBD;" with Bank One, together with
each financial institution that becomes a party hereto or entitled to benefits
and subject to obligations hereunder subsequent to the date hereof, each a
"LENDER" and collectively, the "LENDERS"), and BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as agent for the Lenders (in such capacity and together with any
successors designated pursuant hereto, the "AGENT").
W I T N E S S E T H:
-------------------
WHEREAS, BBC, COG, Xxxxx Energy, Xxxxx Operating Company, and
the Lenders did execute and exchange counterparts of the Credit Agreement dated
November 15, 1993, as amended by the First Amendment to Credit Agreement dated
August 1, 1994, by and among BBC, COG, Xxxxx Energy, and the Lenders and the
Second Amendment to Credit Agreement dated as of March 29, 1995, by and among
the parties hereto (collectively, the "AGREEMENT"), pursuant to which the
Lenders have extended credit to the Borrowers; and
WHEREAS, the parties to the Agreement desire to amend the
Agreement in the particulars hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth in this Amendment and the Agreement,
the parties hereto agree as follows:
ARTICLE I
---------
DEFINITIONS AND INTERPRETATION
------------------------------
1.1 TERMS DEFINED ABOVE. As used herein, each of the
terms "AGENT," "AGREEMENT," "AMENDMENT," "BANK ONE," "BBC," "BORROWER,"
"BORROWERS," "COG," "LENDER," "LENDERS," "NBD," "XXXXX ENERGY," and "XXXX LAKE"
shall have the meaning assigned to such term hereinabove.
1.2 TERMS DEFINED IN AGREEMENT. As used herein, each
term defined in the Agreement shall have the meaning assigned to such term in
the Agreement, unless expressly provided herein to the contrary.
4
1.3 REFERENCES. References in this Amendment to Article
or Section numbers shall be to Articles and Sections of this Amendment, unless
expressly stated to the contrary. References in this Amendment to "hereby,"
"herein," "hereinafter," "hereinabove," "hereinbelow," "hereof," and
"hereunder" shall be to this Amendment in its entirety and not only to the
particular Article or Section in which such reference appears.
1.4 ARTICLES AND SECTIONS. This Amendment, for
convenience only, has been divided into Articles and Sections and it is
understood that the rights, powers, privileges, duties, and other legal
relations of the parties hereto shall be determined from this Amendment as an
entirety and without regard to such division into Articles and Sections and
without regard to headings prefixed to such Articles and Sections.
1.5 NUMBER AND GENDER. Whenever the context requires,
reference herein made to the single number shall be understood to include the
plural and likewise the plural shall be understood to include the singular.
Words denoting sex shall be construed to include the masculine, feminine and
neuter, when such construction is appropriate, and specific enumeration shall
not exclude the general, but shall be construed as cumulative. Definitions of
terms defined in the singular and plural shall be equally applicable to the
plural or singular, as the case may be.
ARTICLE II
----------
AMENDMENT OF AGREEMENT
----------------------
Each of the Borrowers, the Lenders, and the Agent hereby amend
the Agreement in the following particulars, effective as of and after the
effective date of this Amendment:
2.1 AMENDMENT OF SECTION 1.2. Section 1.2 of the
Agreement is amended as follows:
(a) The following definitions are hereby amended to read
as follows:
"ADJUSTED LIBO RATE" shall mean, for any LIBO Rate
Loan, an interest rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the sum of the
LIBO Rate for such Loan PLUS the Applicable Margin for such
Loan, but in no event exceeding the Highest Lawful Rate.
"BORROWING BASE" shall mean, at any time, the sum of
the Tranche A Borrowing Base then in effect and the Tranche B
Borrowing Base then in effect.
2
5
"COMMITMENT AMOUNT" shall mean the sum of the Tranche
A Commitment Amount and the Tranche B Commitment Amount.
"COMMITMENT TERMINATION DATE" shall mean March 31,
1999.
"FLOATING RATE" shall mean, for any Floating Rate
Loan, an interest rate per annum equal to the Base Rate from
time to time in effect, plus the Applicable Margin for such
Loan, but in no event exceeding the Highest Lawful Rate.
"NOTES" shall mean the promissory notes of the
Borrowers to each Lender evidencing Indebtedness with respect
to Loans made by such Lender to the Borrowers, each in the
form attached to the Third Amendment to this Agreement as
Exhibit A, with appropriate insertions, together with any and
all renewals, extensions for any period, increases and
rearrangements thereof.
(b) The following definitions are hereby added to read as
follows:
"APPLICABLE MARGIN" shall mean (a) as to each
Floating Rate Loan which is (i) a Tranche A Loan, one-fourth
percent (1/4%), except (A) if any Indebtedness is outstanding
as a Tranche B Loan, the margin shall be one-half percent
(1/2%) and (B) if all Tranche B Loans have been repaid and/or
the Lenders have no further obligation to make Tranche B
Loans, the margin shall be zero or (ii) a Tranche B Loan, one
percent (1%) or (b) as to each LIBO Rate Loan which is (i) a
Tranche A Loan, two percent (2%), except that if any
Indebtedness is outstanding as a Tranche B Loan or the Lenders
have any obligation to make Tranche B Loans, the margin shall
be two and one-half percent (2-1/2%), or (ii) a Tranche B
Loan, three percent (3%).
"QUAKER STATE PROPERTIES" shall mean the Oil and Gas
Properties to be acquired by BBC pursuant to that certain
Purchase and Sale Agreement by and between BBC, Quaker State
Corporation and QSE&P, Inc. and located in Ohio, Pennsylvania,
New York and West Virginia.
3
6
"TRANCHE A BORROWING BASE" shall mean at any time,
the amount determined by the Required Lenders in accordance
with Section 2.7 and then in effect pursuant to the terms of
Section 2.7.
"TRANCHE A COMMITMENT AMOUNT" shall mean (a) the
amount of $81,000,000, $21,000,000 of which will be available
upon and after the acquisition of the Quaker State Properties
but not prior thereto, or (b) such higher amount as determined
by the Lenders from time to time, which higher amount shall
become effective upon written notification thereof to the
Borrowers from the Lenders.
"TRANCHE A LOAN" shall mean any Loan made by any
Lender to the Borrowers pursuant to Section 2.1(a)(i).
"TRANCHE B BORROWING BASE" shall mean, at any time,
the amount determined by the Required Lenders in accordance
with Section 2.7 and then in effect pursuant to the terms of
Section 2.7.
"TRANCHE B COMMITMENT AMOUNT" shall mean (a) zero,
(b) upon and after the acquisition of the Quaker State
Properties, the amount of $22,000,000, as such amount is
reduced pursuant to Section 2.1(d), or (c) such higher amount
as determined by the Lenders from time to time, which higher
amount shall become effective upon written notification
thereof to the Borrowers from the Lenders.
"TRANCHE B LOAN" shall mean any Loan made by any
Lender to the Borrowers pursuant to Section 2.1(a)(ii).
2.2 AMENDMENT OF SECTION 2.1. Section 2.1 of the
Agreement is hereby amended to read as follows:
"2.1 REVOLVING LINE OF CREDIT. (a) Upon the terms
and conditions (including, without limitation, the right of the
Lenders to decline to make any Loan so long as any Default or Event of
Default exists) and relying on the representations and warranties
contained in this Agreement, each Lender, severally and not jointly,
agrees, (i) during the Commitment Period, to make Tranche A Loans, and
(ii) during the period from and including the date of the acquisition
of the Quaker State Properties to but not including October 15, 1997,
to make Tranche B Loans, in immediately available funds at the
4
7
Principal Office, to the Borrowers from time to time on any Business
Day designated by the Borrowers following receipt by the Agent of a
Request for Advance in an amount equal to such Lender's Commitment
Percentage of the requested Loan; PROVIDED, HOWEVER, that (i) the Loan
Balance shall not exceed the lesser of the Commitment Amount or the
Borrowing Base then in effect, (ii) the Loan Balance plus the
outstanding principal balance of the Senior Notes shall not exceed the
Borrowing Base then in effect, (iii) the outstanding principal amount
of all Tranche A Loans shall not exceed the lesser of the Tranche A
Commitment Amount or the Tranche A Borrowing Base, (iv) the
outstanding principal amount of all Tranche B Loans shall not exceed
the lesser of the Tranche B Commitment Amount or the Tranche B
Borrowing Base, (v) the outstanding principal amount of all Loans by
any Lender to the Borrowers shall not exceed an amount equal to the
Commitment Percentage of such Lender multiplied by the lesser of the
Commitment Amount or the Borrowing Base then in effect, (vi) no Loan
shall exceed the then existing Available Commitment, (vii) no
borrowing, conversion, or prepayment of principal of Loans, except for
prepayments made pursuant to Section 2.9, shall be in an amount less
than $100,000 and (viii) if Tranche B is not drawn upon in connection
with the acquisition of the Quaker State Properties, the Commitment
with regard to the entire Tranche B shall terminate and be of no
further force and effect until such time, if at all, as it is
reinstated in writing, signed by all the parties hereto.
(b) Subject to the terms of this Agreement, the
Borrowers may borrow, repay, and reborrow and convert Loans of one
type or with one Interest Period into Loans of another type or with a
different Interest Period. Each borrowing, prepayment, or conversion
of or into a Loan of a different type or, in the case of a LIBO Rate
Loan, having a different Interest Period, shall be deemed a separate
borrowing, conversion, and prepayment for purposes of the foregoing,
one for each type of Loan or Interest Period. Anything in this
Agreement to the contrary notwithstanding, the aggregate principal
amount of LIBO Rate Loans having the same Interest Period shall be at
least equal to $100,000; and if any LIBO Rate Loan would otherwise be
in a lesser principal amount for any period, such Loan shall be a
Floating Rate Loan during such period.
(c) The Loans shall be made and maintained at the
Principal Office and shall be evidenced by the Notes.
(d) Commencing on September 1, 1995 and continuing
thereafter on the first day of each calendar month through October 1,
1997, the Tranche B Commitment
5
8
Amount shall be reduced by the amount of $1,725,000; PROVIDED,
HOWEVER, the Lenders may at their discretion redetermine the amount by
which the Tranche B Commitment Amount shall be reduced each calendar
month in connection with each redetermination of the Tranche B
Borrowing Base or otherwise at any time and from time to time and such
redetermined reducing amount shall become effective upon verbal
notification thereof to the Borrowers (subsequently confirmed in
writing) and shall remain in effect until the next subsequent
redetermination.
(e) The Borrowers' obligation to pay, and the
Lenders' right to receive payment of the Tranche B Loans is expressly
subordinate and junior to the prior payment in full of all other
Obligations and the Senior Notes; PROVIDED, HOWEVER, so long as no
Default or Event of Default has occurred and is continuing, the
Borrowers may repay the Tranche B Loans according to the terms of this
Agreement."
2.3 AMENDMENT OF SECTION 2.3. Section 2.3 of the
Agreement is hereby amended to read as follows:
"2.3 USE OF LOAN PROCEEDS AND LETTERS OF CREDIT. (a)
Proceeds of Tranche A Loans shall be used by the Borrowers for the
acquisition and development of Oil and Gas Properties, the acquisition
of businesses or assets related to the oil and gas business of any
Borrower, and to provide general working capital.
(b) Proceeds of Tranche B Loans shall be used by the Borrowers
for the acquisition of the Quaker State Properties and any other
purpose set forth in subsection (a) above.
(c) Letters of Credit shall be used for general corporate
purposes; provided, however, no Letter of Credit may be used in lieu
of or in support of stay or appeal bonds."
2.4 AMENDMENT OF SECTION 2.5. The third sentence of
Section 2.5 of the Agreement is hereby amended to read as follows:
"The Loan Balance of each Note, together with all accrued and
unpaid interest thereon, shall be due and payable on the Commitment
Termination Date; PROVIDED, HOWEVER, the portion of the Loan Balance
evidencing Tranche B Loans, together with all accrued and unpaid
interest thereon, shall be due and payable on or before October 15,
1997."
2.5 AMENDMENT OF SECTION 2.7. Section 2.7 of the
Agreement is hereby amended in its entirety to read as follows:
6
9
"2.7 BORROWING BASE DETERMINATIONS. (a) The Tranche A
Borrowing Base is acknowledged by each Borrower and each Lender to be
$95,000,000. The Tranche B Borrowing Base is acknowledged by each
Borrower and each Lender to be zero. Each Borrower and each Lender
acknowledge that, after the acquisition of the Quaker State
Properties, the Tranche A Borrowing Base shall be $116,000,000 and the
Tranche B Borrowing Base shall be $22,000,000.
(b) Each Borrowing Base shall be redetermined by the
Lenders semi-annually on the basis of information supplied by the
Borrowers in compliance with the provisions of this Agreement,
including, without limitation, Reserve Reports, Financial Statements,
and all other information available to the Lenders. Notwithstanding
the foregoing, any two Lenders may, in their discretion, require that
a redetermination of either Borrowing Base be made at any time and
from time to time. Upon such a requirement by any two Lenders, such
redetermination shall be made by the Lenders as otherwise provided in
this Section.
(c) Upon each determination of either Borrowing Base
as provided in this Section, the Agent shall notify the Borrowers
verbally (confirming such notice promptly in writing) of such
determination, and the Borrowing Base so communicated shall become
effective upon such verbal notification and shall remain in effect
until the next subsequent determination of such Borrowing Base.
(d) Each Borrowing Base shall represent the lowest
amount among the Lenders based upon the determination by each of the
Lenders, in its sole discretion and in accordance with its standard
engineering and lending policies and practices customary for loans of
this nature, of the value, for loan purposes, of the Oil and Gas
Properties of the Borrowers which are unencumbered by Liens other than
Liens existing at any time for the benefit of the Lenders.
Furthermore, each Borrower acknowledges that each determination of
either Borrowing Base reflects a margin or discount below market value
which may change from time to time, which is acknowledged by the
Borrowers to be essential for the adequate protection of the Lenders."
2.6 AMENDMENT OF SECTION 2.9. Section 2.9 of the
Agreement is hereby amended in its entirety to read as follows:
"2.9 MANDATORY PREPAYMENTS. If at any time (a) the Loan
Balance exceeds the lesser of the Commitment Amount or the Borrowing
Base then in effect, (b) the Loan Balance plus the outstanding
principal balance of the Senior Notes exceeds the Borrowing Base then
in effect,
7
10
(c) the outstanding principal amount of all Tranche A Loans exceeds
the lesser of the Tranche A Commitment Amount or the Tranche A
Borrowing Base, or (d) the outstanding principal balance of all
Tranche B Loans exceeds the lesser of the Tranche B Commitment Amount
or the Tranche B Borrowing Base, the Borrowers shall, within 30
Business Days of notice from the Agent of such occurrence, prepay, or
make arrangements acceptable to the Required Lenders for the
prepayment of, the amount of such excess for application on the Loan
Balance."
2.7 AMENDMENT OF SECTION 2.11. Section 2.11 of the
Agreement is hereby amended in its entirety to read as follows:
"2.11 COMMITMENT FEES. In addition to interest on the
Notes as provided herein, the Facility Fees and the Engineering Fees
payable hereunder, and to compensate the Lenders for maintaining funds
available, the Borrowers shall pay to the Agent for the Ratable
Benefit of the Lenders, in immediately available funds, on the first
day of July, 1995, and on the first day of each third calendar month
thereafter, a fee in the amount of one-half of one percent (1/2%) per
annum, calculated on the basis of a year of 360 days, but counting the
actual days elapsed (including the first day but excluding the last
day), on the average daily amount of the Available Commitment during
the preceding three-month period."
2.8 AMENDMENT OF SECTION 2.13. Section 2.13 of the
Agreement is hereby amended in its entirety to read as follows:
"2.13 FACILITY FEES. In addition to interest on the Notes
as provided herein, the Commitment Fees and the Engineering Fees
payable hereunder, and to compensate the Lenders for the costs of the
extension of credit hereunder, the Borrowers shall pay to the Agent
for the Ratable Benefit of the Lenders, in immediately available
funds, (a) on the date of the acquisition of the Quaker State
Properties, a fee in the amount of $165,000, plus a fee in the amount
of the three-fourths of one percent (3/4%) of the difference between
$70,000,000 and the increased Commitment Amount for Tranche A Loans,
(b) on the date of the first Tranche B Loan, a fee in the amount of
$220,000, (c) on the date of each subsequent increase in the Tranche A
Commitment Amount, a fee in the amount of three-fourths of one percent
(3/4%) of the difference between the Tranche A Commitment Amount in
effect immediately preceding the Commitment Amount increase and the
new Tranche A Commitment Amount, and (d) on the date of each
subsequent increase in the Tranche B Commitment Amount, a fee in the
amount of three percent (3%) of the difference between the Tranche B
Commitment Amount in effect immediately preceding the Commitment
Amount increase and the new Tranche B Commitment Amount;
8
11
PROVIDED, HOWEVER, in the event that the Commitment Amount should be
decreased at any time and thereafter increased there shall be no fee
due on the portion of such Commitment Amount increase which has
previously had a fee assessed against it hereunder."
ARTICLE III
-----------
CONDITIONS
----------
The obligations of the Lenders and the Agent to enter into
this Amendment are subject to the fulfillment of the following conditions
precedent, with all documents to be delivered to the Agent to be in form and
substance satisfactory to the Lenders:
3.1 RECEIPT OF DOCUMENTS. The Agent shall have received
the following:
(a) this Amendment, duly executed by each Borrower;
(b) the Notes;
(c) a Notice of Final Agreement; and
(d) such other agreements, documents, items, instruments,
opinions, certificates, waivers, consents, and evidence as the Agent
may reasonably request on its own behalf or on behalf of any Lender.
3.2 NO MATERIAL ADVERSE CHANGE. In the opinion of the
Required Lenders, no material adverse change shall have occurred in the
property, business, operations, conditions (financial or otherwise) or
prospects of any Borrower since the date of the last Financial Statements
delivered to the Lenders.
3.3 NO DEFAULT OR EVENT OF DEFAULT. No Default or Event
of Default shall have occurred and be continuing.
3.4 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of
the representations and warranties contained in Article IV of the Agreement, as
amended hereby, and in any other Loan Document, as each has been supplemented,
if applicable, shall be true and correct in all material respects, except as
affected by the transactions contemplated in the Agreement and this Amendment.
3.5 ADDITIONAL MATTERS. All matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory to
the Required Lenders.
9
12
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Borrowers hereby expressly remakes, in favor of
the Lenders and the Agent, all of the representations and warranties set forth
in Article IV of the Agreement, as amended hereby, and in any other Loan
Document, and represents and warrants that all such representations and
warranties, as each has been supplemented, if applicable, remain true and
unbreached in all material respects, except as affected by the transactions
contemplated in the Agreement and this Amendment and except for such
representations and warranties which may be limited to the date made.
ARTICLE V
---------
RATIFICATION
------------
Each of the parties hereto does hereby adopt, ratify, and
confirm the Agreement and each other Loan Document to which it is a party, in
all things in accordance with the terms and provisions thereof, as amended by
this Amendment.
ARTICLE VI
----------
MISCELLANEOUS
-------------
6.1 SCOPE OF AMENDMENT. The scope of this Amendment is
expressly limited to the matters addressed herein and this Amendment shall not
operate as a waiver of any past, present, or future breach, Default, or Event
of Default under the Agreement, except to the extent, if any, that any such
breach, Default, or Event of Default is remedied by the effect of this
Amendment.
6.2 AGREEMENT AS AMENDED. All references to the
Agreement in any document heretofore or hereafter executed in connection with
the transactions contemplated in the Agreement shall be deemed to refer to the
Agreement as amended by this Amendment.
6.3 SUCCESSORS AND ASSIGNS; RIGHTS OF THIRD PARTIES. All
covenants and agreements by each of the Borrowers in this Amendment shall be
binding upon such Borrower and its legal representatives, successors, and
assigns and shall inure to the benefit of the Agent and each of the Lenders and
their legal representatives, successors, and assigns. All provisions of this
Amendment, the Agreement, and the other Loan Documents are imposed solely and
exclusively for the benefit of the Borrowers, the Agent, and the Lenders. No
other Person shall have standing to require satisfaction of such provisions in
accordance with their terms, and any or all of such provisions may, subject to
the provisions of Section 9.9 of the Agreement as to the rights of the Lenders,
be
10
13
freely waived in whole or in part by the Agent at any time if in its sole
discretion it deems it advisable to do so.
6.4 FURTHER ASSURANCES. Each of the Borrowers shall
execute, acknowledge, and deliver, at any time as requested by the Agent, such
other documents and instruments as the Required Lenders shall deem necessary in
their sole discretion to fulfill the terms of the Agreement, as amended hereby,
including, without limitation, modifications of and amendments to any of the
Loan Documents.
6.5 GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE
-------------
A CONTRACT MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAW).
6.6 ENTIRE AGREEMENT; NO ORAL AGREEMENTS. THIS
-------------------------------------
AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT HEREOF AND SUPERSEDES ANY PRIOR AGREEMENT, WHETHER
WRITTEN OR ORAL, BETWEEN SUCH PARTIES REGARDING THE SUBJECT HEREOF.
FURTHERMORE IN THIS REGARD, THIS WRITTEN AMENDMENT, THE AGREEMENT, AND THE
OTHER WRITTEN LOAN DOCUMENTS REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT AMONG
THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
6.7 JURISDICTION AND VENUE. ALL ACTIONS OR PROCEEDINGS
-----------------------
WITH RESPECT TO, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF,
RELATED TO OR FROM THIS AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT
MAY BE LITIGATED, AT THE SOLE DISCRETION AND ELECTION OF THE AGENT, IN COURTS
HAVING SITUS IN HOUSTON, XXXXXX COUNTY, TEXAS. EACH OF THE BORROWERS HEREBY
SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED IN
HOUSTON, XXXXXX COUNTY, TEXAS AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO
TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST
IT BY THE AGENT IN ACCORDANCE WITH THIS SECTION.
6.8 WAIVER OF RIGHTS TO JURY TRIAL AND PUNITIVE DAMAGES.
----------------------------------------------------
EACH OF THE BORROWERS, THE AGENT, AND EACH OF THE LENDERS HEREBY (A) KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION THAT RELATES TO OR
ARISES OUT OF THIS AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT OR THE
ACTS OR OMISSIONS OF THE AGENT OR ANY LENDER IN THE ENFORCEMENT OF ANY OF THE
TERMS OR PROVISIONS OF THIS AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN
DOCUMENT OR OTHERWISE WITH RESPECT THERETO, (B) KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, AND (C)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR
11
14
OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS. THE PROVISIONS OF THIS SECTION ARE A
MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS
AMENDMENT.
Executed effective as of the 25th day of May, 1995.
BORROWERS:
XXXXXX & XXXXX CORPORATION
By: /s/ X.X. Xxxxxx XX
-----------------------------------
Printed Name: X.X. Xxxxxx XX
-------------------------
Title: Chief Executive Officer
--------------------------------
THE CANTON OIL & GAS COMPANY
By: /s/ X.X. Xxxxxx XX
-----------------------------------
Printed Name: X.X. Xxxxxx XX
-------------------------
Title: Chief Executive Officer
--------------------------------
XXXXX ENERGY, INC.
By: /s/ X.X. Xxxxxx XX
-----------------------------------
Printed Name: X.X. Xxxxxx XX
-------------------------
Title: Chief Executive Officer
--------------------------------
XXXX LAKE DRILLING, INC.
By: /s/ X.X. Xxxxxxxx
-----------------------------------
Printed Name: X.X. Xxxxxxxx
-------------------------
Title: Chief Executive Officer
--------------------------------
(Signatures Continued on Next Page)
12
15
AGENT AND LENDER:
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Printed Name: Xxxxxxxxx X. Xxxxxx
---------------------------
Title: Vice President
----------------------------------
LENDER:
NBD BANK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------
Title: Vice President
----------------------------------
13
16
EXHIBIT A
FORM OF NOTES
$[__________] Houston, Texas
____________, 1995
FOR VALUE RECEIVED, the undersigned (whether one or more,
"MAKER") promise to pay to the order of [____________________________ __]
("PAYEE"), at its banking quarters in [_______], [______] County, [_____], the
sum of [_____] MILLION DOLLARS ($[_________]), or so much thereof as may be
advanced against this Note pursuant to the Credit Agreement dated of even date
herewith by and between Maker, Payee, and others (as amended, supplemented, or
restated from time to time, the "CREDIT AGREEMENT"), together with interest at
the rate and calculated as provided in the Credit Agreement. The indebtedness
evidenced by this Note, both principal and interest, is payable as provided in
the Credit Agreement.
Subject to compliance with applicable provisions of the Credit
Agreement, Maker may at any time pay the full amount or any part of this Note
without the payment of any premium or fee, but such payment shall not, until
this Note is fully paid and satisfied, excuse the payment as it becomes due of
any payment on this Note provided for in the Credit Agreement.
This Note is issued pursuant to, is a "Note" under, and is
entitled to all benefits of, the Credit Agreement; and reference is made to the
Credit Agreement for matters governed thereby, including, without limitation,
certain events which will entitle the holder hereof to accelerate the maturity
of all amounts due hereon.
This Note is issued, in whole or in part, in renewal and
extension, but not in novation or discharge, of the remaining principal balance
of that certain Promissory Note dated March 29, 1995, in the original principal
amount of $[__________], executed by Maker and payable to the order of Payee.
THIS NOTE SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL
LAWS OF THE STATE OF TEXAS; PROVIDED, HOWEVER, THAT VERNON'S TEXAS CIVIL
STATUTES, ARTICLE 5069, CHAPTER 15 (WHICH REGULATES CERTAIN REVOLVING CREDIT
LOAN ACCOUNTS AND REVOLVING TRIPARTY ACCOUNTS) SHALL NOT APPLY TO THIS NOTE.
XXXXXX & BLAKE CORPORATION
By:_______________________________
Printed Name:_____________________
Title:____________________________
A-i
17
THE CANTON OIL & GAS COMPANY
By:_______________________________
Printed Name:_____________________
Title:____________________________
XXXXX ENERGY, INC.
By:_______________________________
Printed Name:_____________________
Title:____________________________
XXXX LAKE DRILLING, INC.
By:_______________________________
Printed Name:_____________________
Title:____________________________
A-ii
