THIRD AMENDMENT TO SIXTH RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SIXTH RESTATED LOAN AGREEMENT hereinafter
referred to as the "Third Amendment") executed as of the 25th day of
AUGUST, 1999, by and among XXXXXXX XXXXXXXX ENERGY, INC., a Delaware
corporation (the "CWE"), WARRIOR GAS CO., a Texas corporation ("Warrior ")
(CWE and Warrior being hereinafter sometimes collectively referred to as
"Borrower"), CWEI ACQUISITIONS, INC., a Delaware corporation (hereinafter
referred to as "Guarantor"), BANK ONE, TEXAS, N.A., a national banking
association ("Bank One"), PARIBAS, a French banking corporation ("Paribas")
and UNION BANK OF CALIFORNIA, N.A. ("Union"), Bank One, Paribas and Union
Bank each in their capacity as a lender hereunder together with each and
every future holder of any note issued pursuant to this Agreement are
hereinafter collectively referred to as "Banks", and individually as a
"Bank") and Bank One, as "Agent".
W I T N E S S E T H:
WHEREAS, on July 16, 1998 Borrower, Guarantor, Bank One, Paribas and
Agent entered into a Sixth Restated Loan Agreement (the "Sixth Restated"); and
WHEREAS, as of November 20, 1998, Bank One assigned to Union and
Compass Bank ("Compass") a part of its rights and obligations under the Sixth
Restated and as of such date Union and Compass became parties to the Sixth
Restated; and
WHEREAS, as of November 20, 1998, Borrower, Guarantor, Bank One,
Paribas, Union, Compass and Agent entered into a First Amendment to Sixth
Restated Loan Agreement (the "First Amendment"); and
WHEREAS, Union has acquired all of Compass' rights and obligations
under the Sixth Restated; and
WHEREAS, as of March 26, 1999, Borrower, Guarantor, Bank One, Paribas,
Union and Agent entered into a Second Amendment to Sixth Restated Loan
Agreement (the "Second Amendment"); and
WHEREAS, the Borrower and the Banks have agreed to make certain
additional changes to the Sixth Restated.
NOW, THEREFORE, the parties hereto agree as follows:
1. Unless otherwise defined herein, all defined terms used herein
shall have the same meaning ascribed to such terms in the Sixth Restated.
2. Section 13(b) of the Sixth Restated is hereby amended by adding
the following new Subsection 13(b)(ix) thereto as follows:
"(ix) guarantees by CWE of loans made by third parties to CWE
employees, which loans may be extended for the sole purpose of allowing CWE
employees to exercise options to purchase CWE common stock and/or to pay
federal income tax liabilities relating from such exercise; provided,
however, that such guarantees may not exceed $1,000,000 in the aggregate
outstanding at any one time."
3. This Third Amendment shall be effective as of the date first
above written, but only upon satisfaction of the conditions precedent set
forth in Paragraph 4 hereto (the "Third Amendment Effective Date").
4. The obligations of Banks under this Third Amendment shall be
subject to the satisfaction of the following conditions precedent:
(a) EXECUTION AND DELIVERY. The Borrower shall have executed
and delivered this Third Amendment, and other required documents, all in
form and substance satisfactory to the Banks;
(b) GUARANTOR'S EXECUTION AND DELIVERY. The Guarantor shall
have executed and delivered this Third Amendment and other required
documents, all in form and substance satisfactory to the Banks;
(c) CORPORATE RESOLUTIONS. Banks shall have received
appropriate certified corporate resolutions of each Borrower and the
Guarantor;
(d) GOOD STANDING AND EXISTENCE. The Banks shall have received
evidence of existence and good standing for Borrower and the Guarantor;
(e) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Borrower under the Sixth Restated are true and correct in
all material respects as of such date, as if then made (except to the
extent that such representations and warranties related solely to an
earlier date);
(f) NO EVENT OF DEFAULT. No Event of Default shall have
occurred and be continuing nor shall any event have occurred or failed to
occur which, with the passage of time or service of notice, or both,
would constitute an Event of Default;
(g) OTHER DOCUMENTS. Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request,
and all such documents shall be in form and substance satisfactory to
such Bank; and
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(h) LEGAL MATTERS SATISFACTORY. All legal matters incident to
the consummation of the transactions contemplated hereby shall be
satisfactory to special counsel for Bank retained at the expense of
Borrower.
5. Except to the extent its provisions are specifically amended,
modified or superseded by this Third Amendment, the representations,
warranties and affirmative and negative covenants of the Borrower contained
in the Sixth Restated are incorporated herein by reference for all purposes
as if copied herein in full. The Borrower hereby restates and reaffirms each
and every term and provision of the Sixth Restated, as amended, including,
without limitation, all representations, warranties and affirmative and
negative covenants. Except to the extent its provisions are specifically
amended, modified or superseded by this Third Amendment, the Sixth Restated,
as amended, and all terms and provisions thereof shall remain in full force
and effect, and the same in all respects are confirmed and approved by the
Borrower and the Banks.
6. This Third Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
7. The Guarantor hereby consents to the execution of this Third
Amendment by the Borrower and reaffirms its guaranty of all of the
obligations of the Borrower to the Bank. Borrower and Guarantor acknowledge
and agree that the renewal, extension and amendment of the Loan Agreement
shall not be considered a novation of account or new contract but that all
existing rights, titles, powers, Liens, security interests and estates in
favor of the Banks constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Banks. Borrower
and Guarantor confirm and agree that (a) neither the execution of this Third
Amendment or any other Loan Document nor the consummation of the transactions
described herein and therein shall in any way effect, impair or limit the
covenants, liabilities, obligations and duties of the Borrower and under the
Loan Documents and (b) the obligations evidenced and secured by the Loan
Documents continue in full force and effect. Guarantor hereby further
confirms that it unconditionally guarantees to the extent set forth in its
Guaranty the due and punctual payment and performance of any and all amounts
and obligations owed by the Banks under the Sixth Restated or the other Loan
Documents.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to
Sixth Restated to be duly executed as of the date first above written.
BORROWER:
XXXXXXX XXXXXXXX ENERGY, INC.
a Delaware corporation
By: /s/ L. XXXX XXXXXX
-----------------------------------
L. Xxxx Xxxxxx, Executive Vice
President
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WARRIOR GAS CO.
a Delaware corporation
By: /s/ L. XXXX XXXXXX
-----------------------------------
L. Xxxx Xxxxxx, Vice President
GUARANTOR:
CWEI ACQUISITIONS, INC.
a Delaware corporation
By: /s/ L. XXXX XXXXXX
-----------------------------------
L. Xxxx Xxxxxx, Vice President
AGENT:
BANK ONE, TEXAS, N.A.
a national banking association
By: /s/ WM. XXXX XXXXXXX
-----------------------------------
Wm. Xxxx Xxxxxxx, Vice President
BANKS:
BANK ONE, TEXAS, N.A.
a national banking association
By: /s/ WM. XXXX XXXXXXX
-----------------------------------
Wm. Xxxx Xxxxxxx, Vice President
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PARIBAS
a French banking corporation
By: /s/ XXXXXX XXXXXXXXXX
-----------------------------------
Xxxxxx Xxxxxxxxxx, Vice President
By: /s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXX X. XXXXX
-----------------------------------
Xxxx X. Xxxxx, Vice President
By: /s/ XXXX XXXXXXXXXX
-----------------------------------
Xxxx Xxxxxxxxxx, Assistant Vice President
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