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FIRST AMENDMENT
TO
CREDIT AGREEMENT
AMONG
XXXXXX & XXXXX CORPORATION,
THE CANTON OIL & GAS COMPANY,
XXXXX ENERGY, INC.,
BANK ONE, TEXAS, NATIONAL ASSOCIATION
AND
NBD BANK, N.A.
EFFECTIVE AS OF AUGUST 1, 1994
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . 1
1.1 Terms Defined Above . . . . . . . . . . . . . . . . . . . 1
1.2 Terms Defined in Agreement . . . . . . . . . . . . . . . . 1
1.3 References . . . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Articles and Sections . . . . . . . . . . . . . . . . . . 2
1.5 Number and Gender . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II AMENDMENT OF AGREEMENT . . . . . . . . . . . . . . . . . . 2
2.1 Amendment of Section 1.2 . . . . . . . . . . . . . . . . . 2
2.2 Amendment of Section 2.7(a) . . . . . . . . . . . . . . . 2
2.3 Amendment of Section 4.17 . . . . . . . . . . . . . . . . 3
2.4 Amendment of Section 9.3 . . . . . . . . . . . . . . . . . 3
2.5 Deletion of Xxxxx Operating as Borrower . . . . . . . . . 3
ARTICLE III CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Receipt of Documents . . . . . . . . . . . . . . . . . . . 3
3.2 No Material Adverse Change . . . . . . . . . . . . . . . . 4
3.3 No Default or Event of Default . . . . . . . . . . . . . . 4
3.4 Accuracy of Representations and Warranties . . . . . . . . 4
3.5 Additional Matters . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 4
ARTICLE V RATIFICATION . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 5
6.1 Scope of Amendment . . . . . . . . . . . . . . . . . . . . 5
6.2 Agreement as Amended . . . . . . . . . . . . . . . . . . . 5
6.3 Successors and Assigns; Rights of Third Parties . . . . . 5
6.4 Further Assurances . . . . . . . . . . . . . . . . . . . . 5
6.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . 5
6.6 ENTIRE AGREEMENT; NO ORAL AGREEMENTS . . . . . . . . . . . 6
6.7 JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . 6
6.8 WAIVER OF RIGHTS TO JURY TRIAL AND PUNITIVE DAMAGES . . . 6
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FIRST AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "FIRST
AMENDMENT") is made and entered into effective as of August 1, 1994, by and
among XXXXXX & BLAKE CORPORATION, an Ohio corporation ("BBC"), THE CANTON OIL &
GAS COMPANY, an Ohio corporation ("COG"), XXXXX ENERGY, INC., a Delaware
corporation ("XXXXX ENERGY;" with BBC and COG each a "BORROWER" and
collectively, the "BORROWERS"), BANK ONE, TEXAS, NATIONAL ASSOCIATION, a
national banking association ("BANK ONE"), and NBD BANK, N.A., a national
banking association ("NBD;" with Bank One, together with each financial
institution that becomes a party hereto or entitled to benefits and subject to
obligations hereunder subsequent to the date hereof, each a "LENDER" and
collectively, the "LENDERS"), and BANK ONE, TEXAS, NATIONAL ASSOCIATION, as
agent for the Lenders (in such capacity and together with any successors
designated pursuant hereto, the "AGENT").
W I T N E S S E T H:
-------------------
WHEREAS, the above named parties did execute and exchange
counterparts of the Credit Agreement dated November 15, 1993 (the "AGREEMENT"),
pursuant to which the Lenders have extended credit to the Borrowers; and
WHEREAS, the parties to the Agreement desire to amend the
Agreement in the particulars hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth in this First Amendment and the
Agreement, the parties hereto agree as follows:
ARTICLE I
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DEFINITIONS AND INTERPRETATION
------------------------------
1.1 TERMS DEFINED ABOVE. As used herein, each of the
terms "AGENT," "AGREEMENT," "BANK ONE," "BBC," "BORROWER," "BORROWERS," "COG,"
"FIRST AMENDMENT," "LENDER," "LENDERS," "NBD," and "XXXXX ENERGY" 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 to such term in
the Agreement, unless expressly provided herein to the contrary.
1.3 REFERENCES. References in this First Amendment to
Article or Section numbers shall be to Articles and Sections of this First
Amendment, unless expressly stated to the contrary. References in this First
Amendment to "hereby," "herein," "hereinafter," "hereinabove," "hereinbelow,"
"hereof," and "hereunder"
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shall be to this First Amendment in its entirety and not only to the particular
Article or Section in which such reference appears.
1.4 ARTICLES AND SECTIONS. This First 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 First 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
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AMENDMENT OF AGREEMENT
----------------------
Each of the Borrowers, the Lenders, and the Agent hereby amend
the Agreement in the following particulars, effective as of and after the
effective date of this First Amendment:
2.1 AMENDMENT OF SECTION 1.2. Terms defined in Section
1.1 are hereby incorporated into or substituted for, as the case may be, the
definitions contained in Section 1.2 of the Agreement. In addition, the
following definitions of Section 1.2 of the Agreement are hereby amended to
read as follows:
"COMMITMENT AMOUNT" shall mean the amount of $30,000,000 or
such higher amount as determined by the Lenders from time to time,
which higher amount shall become effective upon written notification
thereof to the Borrowers from the Lenders.
"COMMITMENT TERMINATION DATE" shall mean March 31, 1998.
2.2 AMENDMENT OF SECTION 2.7(a). Section 2.7(a) of the
Agreement is hereby amended to read as follows:
"(a) The Borrowing Base as of August 1, 1994 is
acknowledged by each Borrower and each Lender to be $65,000,000."
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2.3 AMENDMENT OF SECTION 4.17. The first and third
sentences of Section 4.17 of the Agreement are hereby amended to read as
follows:
"BBC has no Subsidiaries as of the date of the First Amendment
to this Agreement except for COG, Xxxxx Energy, and Engine Power
Systems, Inc., an Ohio corporation." "Xxxxx Energy has no
Subsidiaries as of the date of the First Amendment to this Agreement."
2.4 AMENDMENT OF SECTION 9.3. Section 9.3(a), (b), and
(c) are hereby amended to read as follows:
"(a) If to Bank One or the Agent, to:
BANK ONE, TEXAS, NATIONAL ASSOCIATION
000 Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
(b) if to NBD, to:
NBD BANK, N.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
(c) if to any Borrower, to:
XXXXXX & XXXXX CORPORATION
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, Xxxx 00000-0000
Attention: X.X. Xxxxxx
Telecopy: (000) 000-0000"
2.5 DELETION OF XXXXX OPERATING AS BORROWER. All
references in the Agreement to Xxxxx Operating are hereby deleted.
ARTICLE III
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CONDITIONS
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The obligations of the Lenders and the Agent to enter into
this First Amendment are subject to the fulfillment of the following conditions
precedent, with all documents to be delivered to the Agent to be in form and
substance satisfactory to the Lenders:
3.1 RECEIPT OF DOCUMENTS. The Agent shall have received
the following:
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(a) this First Amendment, duly executed by each Borrower;
(b) an extension fee, payable in immediately available
funds, in the amount of $75,000;
(c) a Notice of Final Agreement; and
(d) such other agreements, documents, items, instruments,
opinions, certificates, waivers, consents, and evidence as the Agent
may reasonably request on its own behalf or on behalf of any Lender.
3.2 NO MATERIAL ADVERSE CHANGE. In the opinion of the
Required Lenders, no material adverse change shall have occurred in the
property, business, operations, conditions (financial or otherwise) or
prospects of any Borrower since the date of the last Financial Statements
delivered to the Lenders.
3.3 NO DEFAULT OR EVENT OF DEFAULT. No Default or Event
of Default shall have occurred and be continuing.
3.4 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of
the representations and warranties contained in Article IV of the Agreement, as
amended hereby, and in any other Loan Document, as each has been supplemented,
if applicable, shall be true and correct in all material respects, except as
affected by the transactions contemplated in the Agreement and this First
Amendment.
3.5 ADDITIONAL MATTERS. All matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory to
the Required Lenders.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
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Each of the Borrowers hereby expressly remakes, in favor of
the Lenders and the Agent, all of the representations and warranties set forth
in Article IV of the Agreement, as amended hereby, and in any other Loan
Document, and represents and warrants that all such representations and
warranties, as each has been supplemented, if applicable, remain true and
unbreached in all material respects, except as affected by the transactions
contemplated in the Agreement and this First Amendment and except for such
representations and warranties which may be limited to the date made.
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ARTICLE V
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RATIFICATION
------------
Each of the parties hereto does hereby adopt, ratify, and
confirm the Agreement and each other Loan Document to which it is a party, in
all things in accordance with the terms and provisions thereof, as amended by
this First Amendment.
ARTICLE VI
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MISCELLANEOUS
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6.1 SCOPE OF AMENDMENT. The scope of this First
Amendment is expressly limited to the matters addressed herein and this First
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 First 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 First Amendment.
6.3 SUCCESSORS AND ASSIGNS; RIGHTS OF THIRD PARTIES. All
covenants and agreements by each of the Borrowers in this First Amendment shall
be binding upon such Borrower and its legal representatives, successors, and
assigns and shall inure to the benefit of the Agent and each of the Lenders and
their legal representatives, successors, and assigns. All provisions of this
First Amendment, the Agreement, and the other Loan Documents are imposed solely
and exclusively for the benefit of the Borrowers, the Agent, and the Lenders.
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, subject
to the provisions of Section 9.9 of the Agreement as to the rights of the
Lenders, be freely waived in whole or in part by the Agent at any time if in
its sole discretion it deems it advisable to do so.
6.4 FURTHER ASSURANCES. Each of the Borrowers shall
execute, acknowledge, and deliver, at any time as requested by the Agent, such
other documents and instruments as the Required Lenders shall deem necessary in
their sole discretion to fulfill the terms of the Agreement, as amended hereby,
including, without limitation, modifications of and amendments to any of the
Loan Documents.
6.5 GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
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6.6 ENTIRE AGREEMENT; NO ORAL AGREEMENTS. THIS FIRST
------------------------------------
AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG 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 WRITTEN FIRST AMENDMENT, THE AGREEMENT, AND
THE 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 THE PARTIES.
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 FIRST AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN
DOCUMENT MAY BE LITIGATED, AT THE SOLE DISCRETION AND ELECTION OF THE AGENT, IN
COURTS HAVING SITUS IN HOUSTON, XXXXXX COUNTY, TEXAS. EACH OF THE BORROWERS
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 AGENT IN ACCORDANCE WITH THIS SECTION.
6.8 WAIVER OF RIGHTS TO JURY TRIAL AND PUNITIVE DAMAGES.
----------------------------------------------------
EACH OF THE BORROWERS, THE AGENT, AND EACH OF THE LENDERS HEREBY (A) KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION THAT RELATES TO OR
ARISES OUT OF THIS FIRST AMENDMENT, THE AGREEMENT, OR ANY OTHER LOAN DOCUMENT
OR THE ACTS OR OMISSIONS OF THE AGENT OR ANY LENDER IN THE ENFORCEMENT OF ANY
OF THE TERMS OR PROVISIONS OF THIS FIRST AMENDMENT, THE AGREEMENT, OR ANY OTHER
LOAN DOCUMENT OR OTHERWISE WITH RESPECT THERETO, (B) KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, AND (C)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS. THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT FOR THE
AGENT AND THE LENDERS ENTERING INTO THIS FIRST AMENDMENT.
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Executed effective as of the 1st day of August, 1994.
BORROWERS:
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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THE CANTON OIL & GAS COMPANY
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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XXXXX ENERGY, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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AGENT AND LENDER:
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By: /s/ Xxxx Xxxxxx
----------------------------------
Printed Name: Xxxxxxxxx Xxxxxx
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Title: Vice President
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LENDER:
NBD BANK, N.A.
By: /s/ X.X. Xxxxxxxxxxx
----------------------------------
Printed Name: X.X. Xxxxxxxxxxx
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Title: Second Vice President
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