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Exhibit 10.28
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
is made as of March 27, 2001 by and between North Coast Energy, Inc., a Delaware
corporation ("Borrower"), and Union Bank of California, N.A., as Agent (herein
called "Agent"), and the other Lenders from time to time parties to the Credit
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain
Credit Agreement dated as of September 26, 2000 (as amended, supplemented, or
restated to the date hereof, the "Original Agreement"), for the purposes and
consideration therein expressed, pursuant to which Lenders became obligated to
make loans to Borrower as therein provided; and
WHEREAS, Borrower, Agent, and Lenders desire to amend the Original
Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1.1 TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise requires,
the following terms when used in this Amendment shall have the meanings assigned
to them in this Section 1.2.
"AMENDMENT" means this First Amendment to Credit Agreement.
"CREDIT AGREEMENT" means the Original Agreement as amended
hereby.
ARTICLE II.
AMENDMENT TO ORIGINAL AGREEMENT
Section 2.1. HEDGING CONTRACTS. Each reference to "seventy-five percent
(75%)" in Section 7.3(a) of the Original Agreement is hereby amended to read
"eighty-five percent (85%)".
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ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written when and only when each of the
following conditions shall have been satisfied:
(a) Agent shall have received, at Agent's office, each of the
following in form, substance and date satisfactory to Agent: (i) a
counterpart of this Amendment executed and delivered by Borrower and
Majority Lenders; and (ii) a certificate of a duly authorized officer of
Borrower dated the date of this Amendment certifying: (A) that all of the
representations and warranties set forth in Section 4.1 hereof are true
and correct at and as of the time of such effectiveness; and (B) as to
such other corporate matters as Agent shall deem necessary; and
(b) Agent shall have additionally received such other documents as
Agent may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Agent and Lenders to enter into this Amendment, Borrower represents and
warrants as of the date on which this Amendment becomes effective to Agent that:
(a) The representations and warranties contained in Article V of
the Credit Agreement are true and correct at and as of the time of the
effectiveness hereof.
(b) Each Restricted Person is duly authorized to execute and
deliver each Loan Document to which it is a party and Borrower is and
will continue to be duly authorized to borrow and to perform its
obligations under the Credit Agreement. Each Restricted Person has duly
taken all corporate action necessary to authorize the execution and
delivery of each Loan Document to which it is a party and to authorize
the performance of the obligations of it hereunder and thereunder.
(c) The execution and delivery by each Restricted Person of the
Loan Documents to which it is a party, the performance by each Restricted
Person of its obligations hereunder and thereunder, and the consummation
of the transactions contemplated hereby and thereby do not and will not
conflict with any provision of law, statute, rule or regulation or of the
articles of incorporation and bylaws of any Restricted Person, or of any
material agreement, judgment, license, order or permit applicable to or
binding upon any Restricted Person, or result in the creation of any
lien, charge or encumbrance upon any assets or properties of any
Restricted Person. Except for those
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which have been duly obtained, no consent, approval, authorization or
order of any court or governmental authority or third party is required
in connection with the execution and delivery by any Restricted Person of
the Loan Documents to which it is a party, or to consummate the
transactions contemplated hereby and thereby.
(d) When duly executed and delivered, each of this Amendment and
each Loan Document (as amended or affected by this Amendment) will be a
legal and binding instrument and agreement of each Restricted Person that
is a party thereto, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency and similar laws applying to creditors'
rights generally and by principles of equity applying to creditors'
rights generally.
(e) The audited quarterly financial statements of Borrower dated
as of December 31, 2000 fairly present the financial position at such
dates and the statement of operations and the changes in financial
position for the periods ending on such dates for Borrower. Copies of
such financial statements have heretofore been delivered to Agent. Since
December 31, 2000, no material adverse change has occurred in the
financial condition or businesses of Borrower.
ARTICLE V.
MISCELLANEOUS
Section 5.1. RATIFICATION OF AGREEMENTS. Each Loan Document, as amended
or affected hereby, is hereby ratified and confirmed in all respects. Any
reference to the Credit Agreement in any Loan Document shall be deemed to refer
to this Agreement also. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein or therein, operate as
a wavier of any right, power or remedy of Agent or Lenders under the Credit
Agreement or any other Loan Document nor constitute a waiver of any provision of
the Credit Agreement or any other Loan Document.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loan, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by any Restricted Person hereunder or
under the Credit Agreement to Agent shall be deemed to constitute
representations and warranties by, or agreements and covenants of, Borrower
under this Amendment and under the Credit Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto and
thereto.
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Section 5.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas and any applicable
laws of the United States of America in all respects. including construction,
validity and performance.
Section 5.5. COUNTERPARTS. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENET 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 OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
NORTH COAST ENERGY, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Chief Executive Officer
UNION BANK OF CALIFORNIA, N.A., as
Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice - President
BANK ONE, NA (Main Office Chicago),
Lender
By: /s/ Xxxxxxx Xxxxxxxxx-Xxxxx
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Name: Xxxxxxx Xxxxxxxxx-Xxxxx
Title: First Vice President
COMERICA BANK-TEXAS, Lender
By: /s/ X. Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Corporate Banking Officer
FORTIS CAPITAL CORP., Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
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