FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of May 15, 2008 (the “First Amendment Effective Date”) by and among the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a “Lender” and collectively as the “Lenders”), XXXXX FARGO FOOTHILL, LLC., a Delaware limited liability company, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, “Agent”), FOOTHILLS RESOURCES, INC., a Nevada corporation (“Parent”) and each of Parent’s Subsidiaries identified on the signature pages hereof (such Subsidiaries, together with Parent, are referred to hereinafter each individually as a “Borrower”, and individually and collectively, jointly and severally, as the “Borrowers”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agent have entered into a Credit Agreement dated as of December 13, 2007 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, the Borrowers, the Agent and the Lenders have agreed to make certain modifications to the Credit Agreement in accordance with the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein, and for other valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Credit Agreement, as amended hereby.
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2. |
Amendments to the Credit Agreement. |
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(a) |
Section 4.5(b) of the Credit Agreement is hereby amended by deleting the section in its entirety and substituting therefor: |
“(b) Set forth on Schedule 4.5(b), is a complete and accurate description of the authorized capital Stock of each Borrower, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding. Other than as described on Schedule 4.5(b) (as amended by Borrowers from time to time to reflect stock-based compensation to employees in the form of Stock(other than Disqualified Stock) granted pursuant to Foothills Resources, Inc.’s 2006 Equity Incentive Plan and 2007 Equity Incentive Plan as each is in effect on the Closing Date), there are no subscriptions, options, warrants, or calls relating to any shares of each Borrower’s capital Stock, including any right of conversion or exchange under any outstanding security or other instrument. No Borrower is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital Stock or any security convertible into or exchangeable for any of its capital Stock. Sufficient shares of Common Stock have been (and will remain) authorized and reserved for the Lenders, free from pre-emptive rights, for the purpose of enabling Borrowers to satisfy any obligation to issue Common Stock upon the exercise of the Warrants.”
(b) Schedule 4.5(b) of the Credit Agreement is hereby amended and restated in its entirety to read as set forth on Schedule 4.5(b) hereto.
3. Conditions. The effectiveness of this Amendment is subject to the following conditions precedent:
(a) the execution and delivery of this Amendment by the Parent, the Borrower, Agent and each of the Required Lenders;
(b) the Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Amendment, including, without limitation, reasonable fees, costs and expenses of counsel; and
(c) receipt of such other documents, certificates and agreements requested by the Agent in its reasonable discretion.
4. Agreement in Full Force and Effect as Amended. Except as specifically amended, consented and/or waived hereby, the Credit Agreement and other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed as so amended. Except as expressly set forth herein, this Amendment shall not be deemed to be a waiver, amendment or modification of any provisions of the Credit Agreement or any other Loan Document or any right, power or remedy of Agent or Lenders, nor constitute a waiver of any provision of the Credit Agreement or any other Loan Document, or any other document, instrument and/or agreement executed or delivered in connection therewith or of any Default or Event of Default under any of the foregoing, in each case whether arising before or after the date hereof or as a result of performance hereunder or thereunder. This Amendment also shall not preclude the future exercise of any right, remedy, power, or privilege available to Agent and/or Lenders whether under the Credit Agreement, the other Loan Documents, at law or otherwise and nothing contained herein shall constitute a course of conduct or dealing among the parties hereto. All references to the Credit Agreement shall be deemed to mean the Credit Agreement as amended hereby. This Amendment shall not constitute a novation or satisfaction and accord of the Credit Agreement and/or other Loan Documents, but shall constitute an amendment thereof. The parties hereto agree to be bound by the terms and conditions of the Credit Agreement and Loan Documents as amended by this Amendment, as though such terms and conditions were set forth herein. Each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall mean and be a reference to the Credit Agreement as amended by this Amendment, and each reference herein or in any other Loan Document to the “Loan Agreement” or “Agreement” shall mean and be a reference to the Credit Agreement as amended and modified by this Amendment.
5. Representations and Warranties. Parent and Borrowers each hereby represents and warrants to Agent as follows:
(a) Each is a corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;
(b) Each has the power and authority to execute, deliver and perform its obligations under this Amendment;
(c) the execution, delivery and performance by each party of this Amendment have been duly authorized by all necessary corporate action and does not and will not require any registration with, consent or approval of, notice to or action by, any Person (including any governmental agency);
(d) this Amendment constitutes the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally;
(e) no Default or Event of Default exists or shall exist immediately following the consummation of the transactions contemplated hereby;
(f) all representations and warranties by the Borrower or the Parent contained in the Credit Agreement or the Guaranty that are qualified by materiality or Material Adverse Effect are true and correct and that are not so qualified are true and correct in all material respects as of the date hereof, except to the extent made as of a specific date, in which case each such representation and warranty shall be true and correct as of such date; and
(g) by its signature below, each of the Parent and each Borrower agrees that it shall constitute an Event of Default if any representation or warranty made herein should be false or misleading in any material respect.
6. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment and any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument. Photocopied and facsimiled signatures hereto shall be valid and binding.
7. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the Borrower and the Parent and their successors and assigns and the Agent and the Lenders and their successors and assigns.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE.
9. Severability. Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Amendment.
10. Reaffirmation. Each of the Parent and each Borrower as debtor, grantor, pledgor, guarantor, assignor, as applicable, or in other any other similar capacity as such Person grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party (after giving effect hereto) and (ii) to the extent such Person granted liens on or security interests in any of its property pursuant to any such Loan Document as security for or otherwise guaranteed the Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby.
11. Acknowledgment of Rights; Release of Claims. Each of the Parent and each Borrower hereby acknowledges that: (a) it has no defenses, claims or set-offs to the enforcement by any Lender or the Agent of such Person’s liabilities, obligations and agreements on the date hereof; (b) to its knowledge, each Lender and
the Agent have fully performed all undertakings and obligations owed to it as of the date hereof; and (c) except to the limited extent expressly set forth in this Amendment, each Lender and the Agent do not waive, diminish or limit any term or condition contained in the Credit Agreement or any of the other Loan Documents.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
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FOOTHILLS RESOURCES, INC., |
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By: |
/s/ W. Xxxx Xxxxxx |
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Name: |
W. Xxxx Xxxxxx |
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Title: |
Chief Financial Officer |
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FOOTHILLS CALIFORNIA, INC., |
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By: /s/ W. Xxxx Xxxxxx |
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Name: W. Xxxx Xxxxxx |
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Title: Chief Financial Officer |
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FOOTHILLS OKLAHOMA, INC., |
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By: /s/ W. Xxxx Xxxxxx |
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Name: W. Xxxx Xxxxxx |
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Title: Chief Financial Officer |
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FOOTHILLS TEXAS, INC., |
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By: /s/ W. Xxxx Xxxxxx |
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Name: W. Xxxx Xxxxxx |
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Title: Chief Financial Officer |
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XXXXX FARGO FOOTHILL, LLC, as Agent and as a Lender |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Vice President |
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REGIMENT CAPITAL SPECIAL SITUATIONS FUND III, L.P., as a Lender |
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By: Regiment Capital GP, LLC its General Partner
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: |
Xxxxxxx X. Xxxxxx |
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Title: |
Authorized Signatory |
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Address for Notice: |
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000 Xxxxxxxx Xxxxxx, 00xx Xxxxx |
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Xxxxxx, Xxxxxxxxxxxxx 00000 |
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Attn: Xxxx X’Xxxx |
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Fax No.: (000) 000-0000 |