FOURTH AMENDMENT TO CREDIT AGREEMENT BETWEEN THE EXPLORATION COMPANY OF DELAWARE, INC. TXCO ENERGY CORP. AND GUARANTY BANK, FSB AS LENDER Effective as of November 1, 2006 REVOLVING LINE OF CREDIT OF UP TO $50,000,000
FOURTH
AMENDMENT TO CREDIT AGREEMENT
BETWEEN
THE
EXPLORATION COMPANY OF DELAWARE, INC.
TXCO
ENERGY CORP.
AND
GUARANTY
BANK, FSB
AS
LENDER
Effective
as of November 1, 2006
__________________________________
REVOLVING
LINE OF CREDIT OF UP TO $50,000,000
___________________________________
TABLE
OF
CONTENTS
PAGE
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1.01
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Terms
Defined Above
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1 |
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1.02
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Terms
Defined in Agreement
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1 |
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1.03
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References
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1 |
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1.04
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Articles
and Sections
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1 |
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1.05
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Number
and Gender
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2 |
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ARTICLE
II AMENDMENTS
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2 | |
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2.01
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Addition
of Borrower
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2 |
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2.02
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Amendment
of Exhibit I
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2 |
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ARTICLE
III CONDITIONS
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2 | |
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3.01
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Receipt
of Documents
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2 |
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3.02
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Accuracy
of Representations and Warranties
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3 |
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3.03
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Matters
Satisfactory to Lender
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3 |
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ARTICLE
IV REPRESENTATIONS AND WARRANTIES
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3 | |
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ARTICLE
V RATIFICATION
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3 | |
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ARTICLE
VI MISCELLANEOUS
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3 | |
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6.01
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Scope
of Amendment
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3 |
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6.02
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Agreement
as Amended
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3 |
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6.03
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Parties
in Interest
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3 |
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6.04
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Rights
of Third Parties
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4 |
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6.05
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ENTIRE
AGREEMENT
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4 |
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6.06
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GOVERNING
LAW
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4 |
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6.07
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JURISDICTION
AND VENUE
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4 |
FOURTH
AMENDMENT
TO CREDIT AGREEMENT
This
FOURTH
AMENDMENT TO CREDIT AGREEMENT
(this
"Fourth
Amendment")
is
made and entered into effective as of November 1, 2006, between THE
EXPLORATION COMPANY OF DELAWARE, INC.,
a
Delaware corporation, and TXCO
ENERGY CORP.,
a Texas
corporation ("TXCO")
(collectively, the "Borrower")
and
GUARANTY
BANK, FSB, a
federal
savings bank (the "Lender").
WHEREAS,
the above named parties did execute and exchange counterparts of that certain
Credit Agreement dated June 30, 2004, as amended by Letter Agreement dated
August 18, 2004, Letter of Credit Agreement dated October 7, 2004, Letter
Agreement dated November 3, 2004, Letter Agreement dated March 15, 2005, First
Amendment to Credit Agreement dated March 24, 2005, as further amended by Waiver
and Second Amendment to Credit Agreement dated August 23, 2005, and as further
amended by Third Amendment to Credit Agreement dated December 15, 2005 (the
"Agreement"),
to
which reference is here made for all purposes;
ARTICLE
I
DEFINITIONS
1.01 Terms
Defined Above.
As used
herein, each of the terms "Agreement,"
"Borrower,"
"Fourth
Amendment,"
"Lender,"
and
"TXCO"
and
shall have the meaning assigned to such term hereinabove.
1.02 Terms
Defined in Agreement.
As used
herein, each term defined in the Agreement shall have the meaning assigned
thereto in the Agreement, unless expressly provided herein to the
contrary.
1.03 References.
References in this Fourth Amendment to Article or Section numbers shall be
to
Articles and Sections of this Fourth Amendment, unless expressly stated herein
to the contrary. References in this Fourth Amendment to "hereby," "herein,"
hereinafter," hereinabove," "hereinbelow," "hereof," and "hereunder" shall
be to
this Fourth Amendment in its entirety and not only to the particular Article
or
Section in which such reference appears.
1.04 Articles
and Sections.
This
Fourth Amendment, for convenience only, has been divided into Articles and
Sections and it is understood that the rights, powers, privileges, duties,
1
and other legal relations of the parties hereto shall be
determined from this Fourth 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.
1.05 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
AMENDMENTS
The
Borrower and the Lender hereby amend the Agreement in the following
particulars:
2.01 Addition
of Borrower.
The
Borrower and the Lender hereby amend the Agreement to add TXCO as a
Borrower.
2.02 Amendment
of Exhibit I.
Exhibit
I, i.e., the Form of Promissory Note, is as set forth on Exhibit I to this
Fourth Amendment.
ARTICLE
III
CONDITIONS
The
obligation of the Lender to amend the Agreement as provided herein is subject
to
the fulfillment of the following conditions precedent:
3.01 Receipt
of Documents.
The
Lender shall have received, reviewed, and approved the following documents
and
other items, appropriately executed when necessary and in form and substance
satisfactory to the Lender:
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(a)
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multiple
counterparts of this Fourth Amendment as requested by the
Lender;
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(b)
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the
Note;
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(c)
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copies
of the Articles of Incorporation or Certificate of Incorporation
and all
amendments thereto and the bylaws and all amendments thereto of TXCO
accompanied by a certificate issued by the secretary or an assistant
secretary of TXCO to the effect that each such copy is correct and
complete;
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(d)
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certificates
of incumbency and signatures of all officers of TXCO who are authorized
to
execute Loan Documents on behalf of TXCO, each such certificate being
executed by the secretary or an assistant secretary of
TXCO;
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(e)
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copies
of corporate resolutions approving the Loan Documents and authorizing
the
transactions contemplated herein and therein, duly adopted by the
board
of
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2
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directors
of TXCO accompanied by certificates of the secretary or an assistant
secretary of TXCO to the effect that such copies are true and correct
copies of resolutions duly adopted at a meeting or by unanimous consent
of
the board of directors of TXCO and that such resolutions constitute
all
the resolutions adopted with respect to such transactions, have not
been
amended, modified, or revoked in any respect, and are in full force
and
effect as of the date of such certificate;
and
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(f)
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such
other agreements, documents, items, instruments, opinions, certificates,
waivers, consents, and evidence as the Lender may reasonably
request.
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3.02 Accuracy
of Representations and Warranties.
The
representations and warranties contained in Article IV of the Agreement and
this
Fourth Amendment shall be true and correct.
3.03 Matters
Satisfactory to Lender.
All
matters incident to the consummation of the transactions contemplated hereby
shall be satisfactory to the Lender.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
The
Borrower hereby expressly re-makes, in favor of the Lender, all of the
representations and warranties set forth in Article IV of the Agreement, and
represents and warrants that all such representations and warranties remain
true
and unbreached.
ARTICLE
V
RATIFICATION
Each
of
the parties hereto does hereby adopt, ratify, and confirm the Agreement and
the
other Loan Documents, in all things in accordance with the terms and provisions
thereof, as amended by this Fourth Amendment.
ARTICLE
VI
MISCELLANEOUS
6.01 Scope
of Amendment.
The
scope of this Fourth Amendment is expressly limited to the matters addressed
herein and this Fourth 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 Fourth Amendment.
6.02 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 Fourth Amendment.
6.03 Parties
in Interest.
All
provisions of this Fourth Amendment shall be binding upon and shall inure to
the
benefit of the Borrower, the Lender and their respective successors and
assigns.
3
6.04 Rights
of Third Parties.
All
provisions herein are imposed solely and exclusively for the benefit of the
Lender and the Borrower, and 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 be freely waived in whole or in part by the Lender at any
time if in its sole discretion it deems it advisable to do so.
6.05 ENTIRE
AGREEMENT.
THIS
FOURTH AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN 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 FOURTH AMENDMENT, THE AGREEMENT, THE NOTE, THE SECURITY
INSTRUMENTS, AND THE OTHER WRITTEN DOCUMENTS REFERRED TO IN THE AGREEMENT OR
EXECUTED IN CONNECTION WITH OR AS SECURITY FOR THE NOTE REPRESENT, COLLECTIVELY,
THE FINAL AGREEMENT AMONG THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
6.06 GOVERNING
LAW.
THIS
FOURTH AMENDMENT, THE AGREEMENT AND THE NOTE SHALL BE DEEMED TO BE CONTRACTS
MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF
THE STATE OF TEXAS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT AND
THE NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY BEAR A NORMAL, REASONABLE,
AND
SUBSTANTIAL RELATIONSHIP TO THE STATE OF TEXAS.
6.07 JURISDICTION
AND VENUE.
ALL
ACTIONS OR PROCEEDINGS WITH RESPECT TO, ARISING DIRECTLY OR INDIRECTLY IN
CONNECTION WITH, OUT OF, RELATED TO, OR FROM THIS FOURTH AMENDMENT, THE
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE LITIGATED IN COURTS HAVING SITUS
IN
XXXXXX COUNTY, TEXAS. EACH OF THE BORROWER AND THE LENDER HEREBY SUBMITS TO
THE
JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED IN 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 BORROWER
OR
THE LENDER IN ACCORDANCE WITH THIS SECTION.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, this Fourth Amendment to Credit Agreement is executed effective
the date first hereinabove written.
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BORROWER
THE
EXPLORATION COMPANY OF
DELAWARE,
INC.
By:
/s/
P. Xxxx Xxxxx
P.
Xxxx
Xxxxx
Vice
President
TXCO
ENERGY CORP.
By:
/s/
X. X. Xxxxxxx
M.
Xxxxx Xxxxxxx
Vice
President
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LENDER
GUARANTY
BANK, FSB
By:
/s/
Xxxxx X. Xxxxxx
Xxxxx
X. Xxxxxx
Vice
President
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