Exhibit 10.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "First
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Amendment") dated as of October 31, 1996 is made and entered into among XXXXXXX
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RESOURCES CORPORATION, a Delaware corporation ("Borrower"), the Banks (as
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hereinafter defined), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national
banking association ("TCB") acting in its capacity as agent for the Banks (in
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such capacity, the "Agent").
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WHEREAS, Borrower, the financial institutions party thereto (the "Banks")
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and the Agent have heretofore entered into a Revolving Credit Agreement dated as
of July 19, 1995 (the "Credit Agreement") providing for, among other things,
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revolving credit loans to be made by the Banks to Borrower in a principal amount
not to exceed $200,000,000.00 in the aggregate at any time outstanding on the
terms and subject to the conditions therein set forth; and
WHEREAS, the parties desire to amend the Credit Agreement in certain
respects;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and warranties herein set forth, and for other good
and valuable consideration, the parties hereto agree as follows:
1. Modification of Section 1.01. Section 1.01 of the Credit Agreement
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is hereby amended by changing the definition therein of "Maturity Date" to read
in its entirety as set forth below:
"Maturity Date" shall mean October 31, 2000 or the earlier date of
termination in whole of the Commitments or as extended pursuant to the
provisions contained in Section 2.24 hereof."
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2. Representations and Warranties. Borrower hereby represents and
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warrants that (a) the Borrower has the corporate power, authority and legal
right to execute and deliver this First Amendment and to perform the Credit
Agreement as amended through this First Amendment, and has taken all necessary
corporate action to authorize the execution and delivery of this First Amendment
and the performance of the Credit Agreement as amended through this First
Amendment, (b) this First Amendment has been duly executed and delivered on
behalf of Borrower, (c) the Credit Agreement as amended through this First
Amendment constitutes a valid and legally binding agreement enforceable against
Borrower in accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other similar laws relating to creditors' rights generally and by
general principles of equity which may limit the right to obtain equitable
remedies (regardless of whether such enforceability is considered in a
proceeding in equity or at law), (d) the representations and warranties
contained in Article III of the Credit Agreement as amended through this First
Amendment are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof (or, if stated to have been
made solely as of an earlier date, were true and correct as of such earlier
date) and (e) no Event of Default (as such term is defined in the Credit
Agreement) has occurred and is continuing.
3. Effectiveness. This First Amendment shall become effective on the
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date when each of the following conditions shall have been fulfilled:
(a) this First Amendment shall have been duly executed and
delivered by Borrower, the Banks and the Agent;
(b) the Agent shall have received a certificate, in form and
substance satisfactory to the Agent and dated as of the date hereof, from
the Secretary or Assistant Secretary of Borrower as to (i) the election,
incumbency and signatures of the officer(s) of the Borrower executing
this First Amendment and (ii) no amendments, modifications, changes or
alterations to, or revocation, repeal or supersession of, (x) its
Certificate of Incorporation since July 19, 1995, and (y) its Bylaws
since July 19,1995; and
(c) the Agent shall have received a Reaffirmation of Guaranty
duly signed and delivered by each Subsidiary Guarantor, substantially in
the form attached hereto as Exhibit A.
(d) the Borrower shall have executed and delivered, or caused to
be executed and delivered, such other documents and instruments and taken
such other actions as the Bank may reasonably request in connection with
this First Amendment or the matters referred to herein.
4. Ratification. Except as amended and modified through this First
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Amendment, the Credit Agreement shall continue in full force and effect. The
Credit Agreement and this First Amendment shall be read, taken and construed as
one and the same instrument.
5. Counterparts. This First Amendment may be signed in any number of
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counterparts, and by different parties on separate counterparts, each of which
shall be construed as an original, but all of which together shall constitute
one and the same instrument.
6. Certain Defined Terms. Capitalized terms used herein without
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definition shall have the meaning assigned to them in the Credit Agreement. The
term "Credit Agreement" as defined and used in the other Loan Documents or any
other instrument, document or writing furnished to the Bank by Borrower in
connection with the Credit Agreement shall mean the Credit Agreement as amended
through this First Amendment.
7. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED
STATES OF AMERICA TO THE EXTENT APPLICABLE.
8. FINAL AGREEMENT. THE CREDIT AGREEMENT AS AMENDED THROUGH THIS
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FIRST AMENDMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS
DEFINED IN SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND
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 ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed and delivered as of the date first above written.
BORROWER
XXXXXXX RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President-Finance &
Treasurer
AGENT
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
In its capacity as Agent for the Banks
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
BANKS
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
BANK OF MONTREAL, HOUSTON AGENCY
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director, U.S. Corporate
Banking
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THE FIRST NATIONAL BANK OF BOSTON
By: /s/ H. Xxxxx Xxxxxx
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Name: H. Xxxxx Xxxxxx
Title: Managing Director
COLORADO NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
(successor-in-interest to NBD Bank)
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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