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Exhibit 10.34
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
made and entered into effective as of the 2nd day of December, 1996, by and
between NORTH COAST ENERGY, INC., a Delaware corporation (the "BORROWER") and
BANK ONE, TEXAS, NATIONAL ASSOCIATION, a national banking association (the
"Lender").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into the Credit
Agreement dated September 20, 1993, as amended by that certain First Amendment
to Credit Agreement effective as of March 16, 1994, that certain Second
Amendment to Credit Agreement effective as of January 13, 1995, that certain
Third Amendment to Credit Agreement effective as of August 8, 1995, that certain
Fourth Amendment to Credit Agreement effective as of March 31, 1996 and that
certain Fifth Amendment to Credit Agreement effective as of August 30, 1996 (as
amended, the "AGREEMENT"), pursuant to which the Lender has extended credit to
the Borrower; and
WHEREAS, the parties to the Agreement are desirous of
amending the Agreement in the particulars hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in the Agreement and this Amendment, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 TERMS DEFINED ABOVE. As used herein, each of the terms
"AGREEMENT," "AMENDMENT," "BORROWER," and "LENDER" 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 thereto in the
Agreement, unless expressly provided herein to the contrary.
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.
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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
AMENDMENTS TO AGREEMENT
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The Borrower and the Lender 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. The following definitions in
Section 1.2 of the Agreement are hereby amended to read as follows:
"COMMITMENT AMOUNT" shall mean the amount of $10,200,000, as such
amount is reduced pursuant to Section 2.1.
2.2 AMENDMENT OF SECTION 2.8. Section 2.8(a) of the Agreement is
hereby amended to read as follows:
"(a) The Borrowing Base as of the date of the Sixth Amendment
to this Agreement is acknowledged by the Borrower and the Lender to be
$10,200,000."
2.3 AMENDMENT OF SECTION 6.7. Section 6.7 of the Agreement is
hereby amended to read as follows:
"6.7 DIVIDENDS AND DISTRIBUTIONS Declare, pay, or make,
whether in cash or Property of the Borrower, any dividend or distribution on, or
purchase, redeem, or otherwise acquire for value, any share of any class of its
capital stock; PROVIDED, HOWEVER, the foregoing restriction shall not apply to
dividends paid in capital stock of the Borrower."
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ARTICLE III
CONDITIONS
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The obligation of the Lender to amend the Agreement as provided
herein is subject to the fulfillment of the following conditions precedent:
3.1 RECEIPT OF DOCUMENTS AND OTHER ITEMS. 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:
(a) multiple counterparts of this Amendment executed by the
Borrower, as requested by the Lender;
(b) Notice of Final Agreement; and
3.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article IV of the Agreement and in
any other Loan Document shall be true and correct, except as affected by the
transactions contemplated in the Agreement and this Amendment.
3.3 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 set forth in any other Loan Document to which it is a party, and
represents and warrants that all such representations and warranties remain true
and unbreached, except as affected by the transactions contemplated in the
Agreement and this Amendment.
ARTICLE V
RATIFICATION
Each of the parties hereto does hereby adopt, ratify, and confirm
the Agreement and the other Loan Documents to which it is a party, in all things
in accordance with the terms and provisions thereof, as amended by this
Amendment.
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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 PARTIES IN INTEREST. All provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrower, the
Lender, and their respective successors and assigns.
6.4 RIGHTS OF THIRD PARTIES. Subject to the provisions of
Section 6.3, 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.
6.5 ENTIRE AGREEMENT. THIS AMENDMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE BORROWER AND THE LENDER 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
AMENDMENT, THE AGREEMENT, THE NOTE, THE SECURITY INSTRUMENTS, AND SHE 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 SUCH PARTIES.
6.6 GOVERNING LAW. THIS AMENDMENT SHALL CONSTITUTE A CONTRACT
ENTERED INTO UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO PRINCIPLES THEREOF RELATING
TO CONFLICTS OF LAW.
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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 LENDER, IN COURTS HAVING
SITUS IN HOUSTON, XXXXXX COUNTY, TEXAS. THE BORROWER 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 LENDER IN
ACCORDANCE WITH THIS SECTION.
6.8 WAIVER OF RIGHTS TO JURY TRIAL. THE BORROWER AND THE
LENDER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND
UNCONDITIONALLY WAIVE 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 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. THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT FOR
THE LENDER ENTERING INTO THIS AMENDMENT.
IN WITNESS WHEREOF, this Sixth Amendment to Credit Agreement is
executed effective as of the date first hereinabove written.
NORTH COAST ENERGY, INC.
By: /s/XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
Chief Executive Officer
BANK ONE, TEXAS,
NATIONAL ASSOCIATION
By: /s/ XXXXXXXXX X. XXXXX
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Name: XXXXXXXXX X. XXXXX
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Title: VICE PRESIDENT
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NOTICE OF FINAL AGREEMENT
TO: North Coast Energy, Inc. ("Borrower")
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
As of the effective date of this Notice, Borrower and BANK ONE, TEXAS,
NATIONAL ASSOCIATION ("Bank") have consummated a transaction pursuant to which
Bank has agreed to make a loan or loans to Borrower, to renew and extend an
existing loan or loans to Borrower, and/or to otherwise extend credit or make
financial accommodations to or for the benefit of Borrower, in an aggregate
amount up to $10,000,000 (collectively, whether one or more, the "Loan").
$10,200,000 /s/CMM /s/CML
In connection with the Loan, Borrower and Bank have executed and
delivered and may hereafter execute and deliver certain agreements, instruments,
and documents (collectively hereinafter referred to as the "WRITTEN LOAN
AGREEMENT").
It is the intention of Borrower and Bank that this Notice be
incorporated by reference into each of the written agreements, instruments, and
documents comprising the Written Loan Agreement. Borrower and Bank each warrants
and represents that the entire agreement made and existing by or among Borrower
and Bank with respect to the Loan is and shall be contained within the Written
Loan Agreement, as amended and supplemented hereby, and that no agreements or
promises exist or shall exist by or among Borrower and Bank that are not
reflected in the Written Loan Agreement.
THE WRITTEN LOAN AGREEMENT REPRESENTS 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 UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Effective Date: December 2, 1996.
BANK ONE, TEXAS, NATIONAL ASSOCIATION
By: /S/XXXXXXXXX XXXXX
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Name: XXXXXXXXX XXXXX
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Title: VICE PRESIDENT
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(Signatures Continued on Next Page)
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ACKNOWLEDGED AND AGREED:
NORTH COAST ENERGY, INC.
By: /s/XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
Chief Executive Officer
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