EXHIBIT 10.17
FIRST AMENDMENT
TO
CREDIT AGREEMENT
AMONG
XXXXXX OIL CORPORATION
as Borrower,
BANK OF MONTREAL,
as Agent,
and
The Lenders Signatory Hereto
Effective as of June 24, 1998
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "FIRST AMENDMENT")
executed effective as of the 24th of June, 1998 (the "EFFECTIVE DATE") is
among XXXXXX OIL CORPORATION, a corporation formed under the laws of the
State of Michigan (the "BORROWER"); Xxxxxx Exploration Company, a Delaware
corporation ("XXXXXX EXPLORATION"), each of the lenders that is a signatory
hereto or which becomes a signatory hereto as provided in Section 12.06
(individually, together with its successors and assigns, a "LENDER" and,
collectively, the "LENDERS"); and BANK OF MONTREAL, as agent for the
Lenders (in such capacity, together with its successors in such capacity,
the "AGENT").
RECITALS
A. The Borrower, the Agent and the Banks are parties to that certain
Credit Agreement dated as of February 9, 1998 (such agreement, the "CREDIT
AGREEMENT"), pursuant to which the Banks have made certain credit available
to and on behalf of the Borrower.
B. The Borrower has requested and the Agent and the Banks have
agreed to amend certain provisions of the Credit Agreement.
C. 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 was follows:
Section 1. DEFINED TERMS. All capitalized terms which are defined
in the Credit Agreement, but which are not defined in this First Amendment,
shall have the same meanings as defined in the Credit Agreement. Unless
otherwise indicated, all section references in this First Amendment refer
to the Credit Agreement.
Section 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 AMENDMENTS TO SECTION 1.01.
(a) The definition of "AGREEMENT" is hereby amended to read as
follows:
"AGREEMENT" shall mean this Credit Agreement, as amended by the
First Amendment, and as further amended from time to time.
(b) The following definitions of "FIRST AMENDMENT" and "FIRST
AMENDMENT EFFECTIVE DATE" are hereby added where alphabetically
appropriate:
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"FIRST AMENDMENT" shall mean that certain First Amendment of
Credit Agreement dated as of June 24, 1998 among the Borrower, Xxxxxx
Exploration, the Agent and the Banks.
"FIRST AMENDMENT EFFECTIVE DATE" shall mean the "Effective Date"
as such term is defined in the First Amendment.
2.2 AMENDMENTS TO MINIMUM AMOUNTS. The number "$1,000,000" as it
appears in Section 2.02(b), Section 2.02(d) and Section 2.02(e) is hereby
deleted and the number "$500,000" is inserted in lieu thereof.
2.3 AMENDMENT TO SECTION 9.15. Section 9.15 is hereby deleted in its
entirety and the following is inserted in lieu thereof:
Section 9.15 DEBT TO EBITDA COVERAGE RATIO. The Parent will
not permit its Debt to EBITDA Coverage Ratio as of the end of any
fiscal quarter of the Parent to be more than 2.00 to 1.00. For the
purpose of this Section 9.15, "DEBT TO EBITDA COVERAGE RATIO" shall
mean the ratio of (i) Debt as of the end of such fiscal quarter of the
Parent and its Consolidated Subsidiaries to (ii) EBITDA for the
immediately preceding four fiscal quarters ending on such date.
Section 3. WAIVERS.
3.1 LIMITATIONS ON WAIVERS. The following waiver granted in Section
3 of this First Amendment is hereby granted to the extent and only to the
extent specifically stated therein and for no other purpose or period.
Granting the waiver set forth herein does not and should not be construed
to be an assurance or promise that waivers will be granted in the future,
whether or the matters herein stated or on other unrelated matters.
3.2 WAIVER OF SECTION 9.15. The Parent and the Borrower have (i)
informed the Agent and the Lenders that the parent may have been in
violation of the ratio set forth in Section 9.15 prior to giving effect to
the amendments contemplated hereby for the rolling four quarter fiscal
period ending March 31, 1998, and (ii) requested that the Agent and the
Lenders waive such violation. The Agent and the Lenders hereby waive such
noncompliance.
Section 4. CONDITIONS PRECEDENT. The effectiveness of this First
Amendment is subject to the receipt by the 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 Agent in form and
substance.
4.1 LOAN DOCUMENTS. The Agent shall have received multiple
counterparts as requested of this First Amendment, each executed and
delivered by a duly authorized officer of each party.
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4.2 NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing as of the Effective Date.
Section 5. REPRESENTATIONS AND WARRANTIES; ETC. Each of the
Borrower and Xxxxxx Exploration hereby affirms: (a) that as of the date of
execution and delivery of this First Amendment, all of the representations
and warranties contained in each Loan Document to which it is a party are
true and correct in all material respects as though made on and as of the
Effective Date; and (b) that after giving effect to this First Amendment
and to the transactions and waivers contemplated hereby, no Defaults exist
under the Loan Documents or will exist under the Loan Documents.
Section 6. MISCELLANEOUS.
6.1 CONFIRMATION. The provisions of the Credit Agreement (as amended
by this First Amendment) shall remain in full force and effect in
accordance with its terms following the effectiveness of this First
Amendment.
6.2 RATIFICATION AND AFFIRMATION OF OBLIGATIONS. Xxxxxx Exploration
hereby expressly (i) acknowledges the terms of this First Amendment, (ii)
ratifies and affirms its obligations under its respective Guaranty
Agreement and the other Security Instruments to which it is a party, (iii)
acknowledges, renews and extends its continued liability under its
respective Guaranty Agreement and the other Security Instruments to which
it is a party and agrees that is respective Guaranty Agreement and the
other Security Instruments to which it is a party remains in full force and
effect with respect to the Indebtedness as amended hereby.
6.3 COUNTERPARTS. This First 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.
6.4 NO ORAL AGREEMENT. THIS WRITTEN FIRST 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.
6.5 GOVERNING LAW. THIS FIRST 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 TEXAS.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed effective as of the date first written above.
BORROWER: XXXXXX OIL CORPORATION
By: /S/ XXXXXXX X. XXXXXXXXXXX
Name:
Title:
GUARANTOR: XXXXXX EXPLORATION COMPANY
By: /S/ XXXXXXX X. XXXXXXXXXXX
Name:
Title:
AGENT: BANK OF MONTREAL, as Agent
By: /S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Director, U.S. Corporate Banking
LENDER: BANK OF MONTREAL
By: /S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Director, U.S. Corporate Banking
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