Exhibit 10.2
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this "FIRST
AMENDMENT") dated as of March 31, 2004, to be effective as set forth in Section
5 hereof, is among Xxxxxxxx Resources, Inc., a Nevada corporation ("BORROWER"),
the financial institutions party hereto, and Bank of Montreal, as administrative
agent and as letter of credit issuing bank.
PRELIMINARY STATEMENT
A. The Borrower has entered into a certain Amended and Restated Credit
Agreement dated as of February 25, 2004, among Borrower, the lenders party
thereto (the "EXISTING LENDERS"), Bank of Montreal, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT") and as issuing bank (in such
capacity, the "ISSUING BANK"), Bank of America, N.A., as syndication agent, and
Comerica Bank, Fortis Capital Corp., and Union Bank of California, N.A., as
co-documentation agents, (such Amended and Restated Credit Agreement, as
amended, restated or supplemented from time to time until the date hereof, the
"CREDIT AGREEMENT").
B. The Borrower has requested that the Credit Agreement be amended and
modified to allow The Bank of Nova Scotia ("SCOTIA"), Bank of Scotland
("SCOTLAND"), Compass Bank ("COMPASS"), Credit Lyonnais New York Branch ("CREDIT
LYONNAIS"), Hibernia National Bank ("HIBERNIA") and Natexis Banques Populaires
("NATEXIS"; and together with Scotia, Scotland, Compass, Credit Lyonnais and
Hibernia, collectively, the "NEW LENDERS") to become "Lenders" party to the
Credit Agreement, as set forth herein.
C. Subject to the terms and conditions of this First Amendment, the
Existing Lenders, the New Lenders, the Administrative Agent and the Issuing Bank
have agreed to enter into this First Amendment in order to effectuate such
amendments and modifications.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties agree as follows:
Section 1. DEFINITIONS. Unless otherwise defined in this First Amendment,
each capitalized term used in this First Amendment (including in the preliminary
statement above) has the meaning assigned to such term in the Credit Agreement.
Section 2. AMENDMENT OF CREDIT AGREEMENT.
(a) The Credit Agreement is hereby amended by deleting the
existing Schedule 2.1 to the Credit Agreement and inserting in its
place the text contained in Attachment 1 attached to this First
Amendment as the new Schedule 2.1 to the Credit Agreement.
(b) The Credit Agreement is hereby amended by inserting at
the end of the existing Schedule 10.2 to the Credit Agreement the
text contained in Attachment 2 attached to this First Amendment.
Section 3. SCOTIA, SCOTLAND, COMPASS, CREDIT LYONNAIS, HIBERNIA AND
NATEXIS AS LENDERS.
(a) Upon the effectiveness of this First Amendment and by
its execution and delivery hereof, each of Scotia, Scotland,
Compass, Credit Lyonnais, Hibernia and Natexis shall be deemed
automatically to have become a party to the Credit Agreement, shall
have all the rights and obligations, severally and not jointly, of a
"Lender" under the Credit Agreement and the other Loan Documents as
if each were an original signatory thereto, and shall agree, and
does hereby agree, severally and not jointly, to be bound by the
terms and conditions set forth in the Credit Agreement and the other
Loan Documents to which the Lenders are a party, in each case, as if
each were an original signatory thereto.
(b) Each of Scotia, Scotland, Compass, Credit Lyonnais,
Hibernia and Natexis, severally and not jointly, (i) confirms that
it has received a copy of the Credit Agreement, together with copies
of the financial statements referred to in Section 5.5 thereof and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this First
Amendment and the Credit Agreement; (ii) agrees that is has
independently and without reliance upon the Assignor or the
Administrative Agent and based on such information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this First Amendment and the Credit Agreement (and that it will,
independently and without reliance upon the Administrative Agent,
the Issuing Bank, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under the Credit Agreement); (iii) represents and warrants
that (1) its name set forth herein is its legal name, (2) it has the
full power and authority and the legal right to make, deliver and
perform, and has taken all necessary action, to authorize the
execution, delivery and performance of this First Amendment, and any
and all other documents delivered by it in connection herewith and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this First Amendment, the Credit Agreement and the
Loan Documents, (3) no consent or authorization of, filing with, or
other act by or in respect of any Governmental Authority, is
required in connection in connection herewith or therewith, and (4)
this First Amendment constitutes its legal, valid and binding
obligation; (iv) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers
and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) appoints
and authorizes the Issuing Bank to take such action as letter of
credit issuing bank on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Issuing
Bank by the terms thereof, together with such powers and discretion
as are reasonably incidental thereto; (vi) agrees that it will
perform in accordance with their terms all of the obligations that
by the terms of the Credit Agreement are required to be performed by
it as a Lender; and (vii) represents and warrants that under
applicable Laws no tax will be required to be withheld by the
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Administrative Agent or the Borrower with respect to any payments to
be made to such New Lender hereunder or under any Loan Document, and
no tax forms described in Section 3.8 of the Credit Agreement are
required to be delivered by such New Lender (or if required, such
tax forms have been delivered to the Administrative Agent as
required under Section 3.8 of the Credit Agreement).
(c) Each of Scotia, Scotland, Compass, Credit Lyonnais,
Hibernia and Natexis hereby advises each other party hereto that its
respective address for notices and its respective Lending Office
shall be as set forth below its name on Schedule 10.2 to the Credit
Agreement (as amended hereby).
Section 4. RATIFICATION. The Borrower hereby ratifies and confirms all of
the Obligations under the Credit Agreement and the other Loan Documents.
Section 5. EFFECTIVENESS. This First Amendment shall become effective as
of the date first written above upon satisfaction of each of the conditions set
forth in this Section 5:
(a) The Administrative Agent shall have received duly
executed counterparts of this First Amendment from the Borrower, the
Issuing Bank and each Lender (including each New Lender), and duly
acknowledged by each of the Guarantors.
(b) The Borrower shall deliver to the Administrative Agent
on behalf of each Existing Lender whose Percentage Share is
decreasing upon the effectiveness of this First Amendment and each
New Lender a promissory note dated the Closing Date and payable to
each such Lender in a maximum principal amount equal to such
Lender's Percentage Share (as shown on Attachment 1 hereto) of
$400,000,000, which Note shall be a renewal and replacement of, and
shall be given in substitution and exchange for, but not in payment
of, those Notes held by the Existing Lenders prior to the
effectiveness of this First Amendment.
(c) The Borrower shall have confirmed and acknowledged to
the Administrative Agent, the Issuing Bank and the Lenders, and by
its execution and delivery of this First Amendment the Borrower does
hereby confirm and acknowledge to the Administrative Agent, the
Issuing Bank and the Lenders, that (i) the execution, delivery and
performance of this First Amendment has been duly authorized by all
requisite corporate action on the part of the Borrower; (ii) the
Credit Agreement and each other Loan Document to which it is a party
constitute valid and legally binding agreements enforceable against
the Borrower in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity, (iii) the
representations and warranties by the Borrower contained in the
Credit Agreement and in the other Loan Documents are true and
correct on and as of the date hereof in all material respects as
though made as of the date hereof, and (iv) no Default or Event of
Default exists under the Credit Agreement or any of the other Loan
Documents.
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(d) The Administrative Agent shall have received a
certificate of insurance of the Borrower and its Subsidiaries
evidencing that the Borrower and its Subsidiaries are carrying
insurance in accordance with Section 6.7 of the Credit Agreement
naming the Administrative Agent as a loss payee and the
Administrative Agent and the Lenders (including the New Lenders) as
additional insureds and that such insurance is in full force and
effect.
Section 6. RENEWAL AND CONTINUATION OF EXISTING LOANS. Upon the
effectiveness of this First Amendment:
(a) All of the Obligations outstanding under the Credit
Agreement as of the date of such effectiveness shall hereby be
restructured, rearranged, renewed, extended and continued under the
Credit Agreement (as amended hereby) and all Loans outstanding under
the Credit Agreement as of the date of such effectiveness shall
hereby become Loans outstanding under the Credit Agreement (as
amended hereby).
(b) In connection herewith, the Existing Lenders hereby
sell, assign, transfer and convey, and each of Scotia, Scotland,
Compass, Credit Lyonnais, Hibernia and Natexis hereby purchases and
accepts, so much of the Aggregate Commitments under, Loans
outstanding under, and participations in Letters of Credit issued
pursuant to, the Credit Agreement such that the Percentage Share of
each Lender (including the Existing Lenders and each of Scotia,
Scotland, Compass, Credit Lyonnais, Hibernia and Natexis) shall be
as set forth on Schedule 2.1 to the Credit Agreement (as amended
hereby). The foregoing assignments, transfers and conveyances are
without recourse to the Existing Lenders and without any warranties
whatsoever by the Administrative Agent, the Issuing Bank or any
Existing Lender as to title, enforceability, collectibility,
documentation or freedom from liens or encumbrances, in whole or in
part, other than the warranty of each Existing Lender that it has
not previously sold, transferred, conveyed or encumbered such
interests.
Section 7. REPRESENTATIONS OF EXISTING LENDERS. Each Existing Lender
represents and warrants to the Administrative Agent, each other Existing Lender
and each New Lender that (1) it has the power and authority and the legal right
to make, deliver and perform, and has taken all necessary action, to authorize
the execution, delivery and performance of this First Amendment and to fulfill
its obligations under, and to consummate the transactions contemplated by, this
First Amendment, and no consent or authorization of, filing with, or other act
by or in respect of any Governmental Authority, is required in connection in
connection herewith or therewith; and (2) this First Amendment constitutes the
legal, valid and binding obligation of such Existing Lender. None of the
Administrative Agent, the Issuing Bank or any Existing Lender makes any
representation or warranty or assumes any responsibility with respect to the
financial condition of the Borrower or any of its Affiliates or the performance
by the Borrower or any of its Affiliates of their respective obligations under
the Loan Documents, and none of the Administrative Agent, the Issuing Bank or
any Existing Lender assumes any responsibility with respect to any statements,
warranties or representations made under or in
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connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document other
than as expressly set forth above.
Section 8. GOVERNING LAW. This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York (without giving
effect to the principles thereof relating to conflicts of law except section
5-1401 of the New York General Obligations Law).
Section 9. MISCELLANEOUS. (a) On and after the effectiveness of this First
Amendment, each reference in each Loan Document to "this Agreement", "this
Note", "this Mortgage", "hereunder", "hereof" or words of like import, referring
to such Loan Document, and each reference in each other Loan Document to "the
Credit Agreement", "the Notes", "the Mortgages", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, the Notes, or the
Mortgage or any of them, shall mean and be a reference to such Loan Document,
the Credit Agreement, the Notes, the Mortgage or any of them, as amended or
otherwise modified by this First Amendment; (b) the execution, delivery and
effectiveness of this First Amendment shall not, except as expressly provided
herein, operate as a waiver of any default of the Borrower or any other Loan
Party or any right, power or remedy of the Administrative Agent, the Issuing
Bank and the Lenders under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents; (c) this First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement; and (d) delivery of an executed counterpart of a signature page to
this First Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this First Amendment.
Section 10. FINAL AGREEMENT. THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT 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 ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by its officers thereunto duly authorized as of the date first above
written.
BORROWER:
XXXXXXXX RESOURCES, INC.,
a Nevada corporation
By: /s/ XXXXXX X. XXXXX
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
ADMINISTRATIVE AGENT, ISSUING BANK
AND LENDERS:
BANK OF MONTREAL,
as Administrative Agent, Issuing
Bank and Lender
By: /s/ XXXXX X. XXXXXX
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Director
BANK OF AMERICA, N.A.,
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
FORTIS CAPITAL CORP.
By: /s/ XXXXX XXXXXXXXXX
------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
By: /s/ XXXXXXX X. XXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
S-1
COMERICA BANK
By: /s/ XXXXX X. XXXXXX
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXX XXXXXX
------------------------
Name: Xxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ XXXXXX XXXX
-------------------------
Name: Xxxxxx Xxxx
Title: Senior Manager
BANK OF SCOTLAND
By: /s/ XXXXXX XXXXXX
-------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
` COMPASS BANK
By: /s/ XXXXXXX XXXXXXXX
-------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
S-2
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ PHILIPPE SOUSTRA
-------------------------
Name: Philippe Soustra
Title: Executive Vice President
HIBERNIA NATIONAL BANK
By: /s/ XXXXX XXXXXXX
-------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ XXXXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President & Manager
By: /s/ XXXXX X. XXXXXXX, III
--------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President & Manager
S-3
ACKNOWLEDGMENT BY GUARANTORS
Each of the undersigned Guarantors hereby (i) consents to the terms and
conditions of that certain First Amendment to Credit Agreement dated as of Xxxxx
00, 0000 (xxx "Xxxxx Xxxxxxxxx"), (xx) acknowledges and agrees that its consent
is not required for the effectiveness of the First Amendment, (iii) ratifies and
acknowledges its respective Obligations under each Loan Document to which it is
a party, and (iv) represents and warrants that (a) no Default or Event of
Default has occurred and is continuing, (b) it is in full compliance with all
covenants and agreements pertaining to it in the Loan Documents, and (c) it has
reviewed a copy of the First Amendment.
XXXXXXXX OIL & GAS HOLDINGS, INC.
XXXXXXXX OIL & GAS - LOUISIANA, LLC
XXXXXXXX OFFSHORE, LLC
XXXXXXXX OIL & GAS GP, LLC,
By Xxxxxxxx Resources, Inc., its sole member
XXXXXXXX OIL & GAS, LP, By
Xxxxxxxx Oil & Gas GP, LLC,
its general partner,
By Xxxxxxxx Resources, Inc., its sole member
By: /s/ XXXXXX X. XXXXX
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXXXX OIL & GAS INVESTMENTS, LLC
By: /s/ XXXXXX X. XXXXX
--------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
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ATTACHMENT 1
SCHEDULE 2.1
COMMITMENTS
AND PERCENTAGE SHARES
LENDER COMMITMENT PERCENTAGE SHARE
-------------------------------- --------------- ----------------
Bank of Montreal $ 77,333,333.33 19.00000000%
Bank of America, N.A. 44,000,000.00 11.00000000%
Comerica Bank 44,000,000.00 11.00000000%
Fortis Capital Corp. 44,000,000.00 11.00000000%
Union Bank of California, N.A. 44,000,000.00 11.00000000%
Bank of Scotland $ 33,333,333.33 8.00000000%
The Bank of Nova Scotia $ 26,666,666.67 6.00000000%
Credit Lyonnais, New York Branch $ 26,666,666.67 6.00000000%
Compass Bank $ 20,000,000.00 5.00000000%
Hibernia National Bank $ 20,000,000.00 5.00000000%
Natexis Banques Populaires $ 20,000,000.00 5.00000000%
Total $400,000,000.00 100.00000000%
Attachment 1
ATTACHMENT 0
XXX XXXX XX XXXX XXXXXX
Address for Notices:
The Bank of Nova Scotia
Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxx_xxxxxxx@xxxxxxxxxxxxx.xxx
Lending Office:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700, 000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, XX 00000
Attachment 2 - 1
BANK OF SCOTLAND
Address for Notices:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Vice President
Telephone: 000 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxxx_xxxxxx@xxxxxxxxxxxxxx.xxx
Lending Office:
Bank of Scotland
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attachment 2 - 2
COMPASS BANK
Address for Notices:
Compass Bank
00 Xxxxxxxx Xxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
Lending Office:
Compass Bank
00 Xxxxxxxx Xxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000
Attachment 2 - 3
CREDIT LYONNAIS NEW YORK BRANCH
Address for Notices:
Credit Lyonnais New York Branch
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxxxx.Xxxxxxx@xxxxxxxxxx.xxx
Lending Office:
Credit Lyonnais New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attachment 2 - 4
Hibernia National Bank
Address for Notices:
Hibernia National Bank
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxxxx@xxxxxxxx.xxx
Lending Office:
Hibernia National Bank
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attachment 2 - 5
NATEXIS BANQUES POPULAIRES
Address for Notices:
Natexis Banques Populaires
Natexis Banque
Southwest Representative Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: Xxxxx.xxxxxxxxxx@xxx.xxxx.xxx
With a copy to:
Natexis Banque
New York Branch
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Lending Office:
Natexis Banques Populaires
Natexis Banque
Southwest Representative Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attachment 2 - 6
