EXHIBIT 10.18
FIRST AMENDMENT
to
AMENDED AND RESTATED GUARANTY AGREEMENT
by
XXXXXX CORPORATION,
as Guarantor,
in favor of
BANK OF MONTREAL,
as Agent,
Effective as of July 26, 2001
This FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY AGREEMENT (this
"First Amendment") executed effective as of the 26th of July, 2001 (the
"Effective Date") is by XXXXXX CORPORATION, a corporation formed under the
laws of the State of Delaware (the "Guarantor") in favor of BANK OF MONTREAL,
as agent for the Lenders (in such capacity, together with its successors, the
"Agent").
Recitals
X. Xxxxxx Petroleum Corporation, a corporation formed under the laws
of Delaware (the "Borrower"), the Agents and the Lenders entered into that
certain Credit Agreement dated as of December 17, 1997 (the "Prior Credit
Agreement").
B. In order to secure the obligations of the Borrower under the Credit
Agreement, the Guarantor entered into that certain Guaranty Agreement dated
as of December 17, 1997 (the "Prior Guaranty Agreement").
C. The Borrower, the Agents the Lenders entered into that certain
Amended and Restated Credit Agreement dated as of December 1, 1998 (the
"Amended and Restated Credit Agreement") amending and restating the Prior
Credit Agreement.
D. In order to secure the obligations of the Borrower under the
Amended and Restated Credit Agreement, the Guarantor entered into that
certain Amended and Restated Guaranty Agreement dated as of December 1, 1998
(the "Amended and Restated Guaranty Agreement").
E. The Borrower has requested and the Agents and the Lenders have
agreed to amend certain provisions of the Amended and Restated Credit
Agreement and the Amended and Restated Guaranty Agreement.
F. NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1.Defined Terms. Each capitalized term which is defined in the
Amended and Restated Credit Agreement, but which is not defined in this First
Amendment, shall have the meaning ascribed such term in the Amended and
Restated Credit Agreement. Unless otherwise indicated, all section
references in this First Amendment refer to the Amended and Restated Guaranty
Agreement.
Section 2.Amendments to the Amended and Restated GuarantyAgreement.
2.1 Amendments to Section 1.2. The following new definition is hereby
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added where alphabetically appropriate:
"Net Cash Proceeds" shall mean, with respect to any sale or
disposition of securities, the cash proceeds (including cash
equivalents and any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable
or purchase price adjustment receivable or otherwise, but only as
and when received) of such sale or other disposition received by
the Guarantor or any of its Consolidated Subsidiaries, net of all
attorneys' fees, accountants' fees, investment banking fees and
other customary fees and commissions actually incurred by the
Guarantor or any of its Consolidated Subsidiaries and documented in
connection therewith.
2.2 Amendments to Section 5.3. Section 5.3 is hereby amended by
deleting such section in its entirety and inserting in lieu thereof the
following:
5.3 Minimum Tangible Net Worth. The Guarantor will not
permit its Tangible Net Worth at any time to be less than the sum
(without duplication) of (i) $33,050,000 (85% of the Guarantor's
Tangible Net Worth as of December 31, 2000), plus (ii) 50% of the
Net Cash Proceeds of any primary offering (public or private) of
equity securities consummated by the Guarantor after the First
Amendment Effective Date, plus (iii) 50% of Consolidated Net Income
for each fiscal quarter of the Guarantor ending after December 31,
2000 (to the extent for any such fiscal quarter Consolidated Net
Income is positive).
2.3 Amendments to Section 5.4. Section 5.4 is hereby amended by
deleting such section in its entirety and inserting in lieu thereof the
following:
5.4 Current Ratio. The Guarantor's ratio of (i) consolidated
current assets plus availability under the Facility to (ii)
consolidated current liabilities (excluding current maturities of
the Notes) shall not at any time be less than 1.0 to 1.0.
Section 3.Miscellaneous.
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3.1 Confirmation. The provisions of the Amended and Restated Guaranty
Agreement (as amended by this First Amendment) shall remain in full force and
effect in accordance with its terms following the effectiveness of this First
Amendment.
3.2 Counterparts. This First Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
3.3 No Oral Agreement. THIS WRITTEN FIRST AMENDMENT, THE AMENDED AND
RESTATED GUARANTY AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN
CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
3.4 Governing Law. THIS FIRST AMENDMENT (INCLUDING, BUT NOT LIMITED
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TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
[SIGNATURE PAGE - FIRST AMENDMENT TO
AMENDED AND RESTATED GUARANTY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed effective as of the date first written above.
GUARANTOR: XXXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, Vice President &
Chief Financial Officer
AGENT: BANK OF MONTREAL, AS AGENT
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx, Vice President
