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EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT, dated as of October 19, 1998 (this "Amendment"), to
the Credit Agreement, dated as of April 17, 1998 (the "Credit Agreement"), among
Xxx Xxxxx, Inc., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders")
and The Chase Manhattan Bank, a New York banking corporation, as administrative
agent for the Lenders thereunder (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Credit Agreement; and
WHEREAS, the Borrower has requested, and, upon this Amendment becoming
effective, the Lenders have agreed to amend the Credit Agreement to increase the
Commitments thereunder to $100,000,000.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Agent and the Lenders hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Credit Agreement.
2. Amendment to Subsection 1.1. (a) Subsection 1.1 of the Credit
Agreement is hereby amended by deleting the definition of "Applicable Margin"
appearing in such subsection and substituting in lieu thereof the following
definition:
"Applicable Margin: on each day when the Utilization
Percentage is less than 50%, 0.75% per annum; on each
day when the Utilization Percentage is equal to or
greater than 50% but less than or equal to 75%, 1.00%
per annum; and on each day when the Utilization
Percentage is greater than 75%, 1.25% per annum."
(b) Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the amount "$75,000,000" from the definition of "Maximum Loan Amount"
and substituting therefor the amount "$100,000,000".
3. Amendment to Schedule I. Schedule I to the Credit Agreement is
hereby amended by deleting such Schedule I in its entirety and inserting in lieu
thereof Schedule I to this Amendment.
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4. Amendment to Subsection 6.4. (a) Subsection 6.4(b) of the Credit
Agreement is hereby amended by deleting the word "and" at the end of such
subsection.
(b) Subsection 6.4(c) of the Credit Agreement is hereby amended by
deleting the period at the end of such subsection and substituting in lieu
thereof "; and".
(c) Subsection 6.4 to the Credit Agreement is hereby amended by
adding the following new paragraph (d) to the end of such subsection:
"(d) Guarantee Obligations in respect of Petroleum
Price Hedge Agreements and Interest Rate Protection
Agreements entered into in compliance with subsection
6.15."
5. Agreement. Notwithstanding any provision in the Credit Agreement:
(a) Additional Loans made on or after the date of the Amendment
Effective Date (as defined below) shall be made in accordance with the pro rata
provisions of subsection 2.13 of the Credit Agreement based on the Commitment
Percentages in effect on and after the Amendment Effective Date (except to the
extent that any such pro rata borrowings would result in any Lender making an
aggregate principal amount of Loans in excess of its Commitment, in which case
such excess amount will be made pro rata and allocated to the remaining Lenders
based on their respective Commitments in effect on and after the Amendment
Effective Date).
(b) In the event that on the Amendment Effective Date there is an
unpaid principal amount of ABR Loans, the Borrower shall make prepayments
thereof and the Borrower shall make borrowings of ABR Loans and/or Eurodollar
Loans in accordance with subsection 2.2, as the Borrower shall determine, so
that, after giving effect thereto, the ABR loans and Eurodollar Loans
outstanding are held as nearly as may be in accordance with the pro rata
provisions of subsection 2.13 of the Credit Agreement and the Commitment
Percentages in effect on and after the Amendment Effective Date.
(c) In the event that on the Amendment Effective Date there is an
unpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain
outstanding with the respective holders thereof until the expiration of their
respective Interest Periods (unless the Borrower elects to prepay any thereof in
accordance with the applicable provisions of the Credit Agreement), and on the
last day of the respective Interest Periods, the Borrower shall make prepayments
thereof and the Borrower shall make borrowings of ABR Loans and/or Eurodollar
Loans in accordance with Subsection 2.2, so that, after giving effect thereto,
the ABR Loans and Eurodollar Loans outstanding are held as nearly as may be in
accordance with the pro rata provisions of subsection 2.13 of the Credit
Agreement and the Commitment Percentages in effect on and after the Amendment
Effective Date.
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6. Effectiveness. The amendments provided for herein shall become
effective on the date (the "Amendment Effective Date") that the following
conditions precedent have been satisfied:
(a) the Agent shall have received, with a counterpart for each
Lender, this Amendment, duly executed and delivered by the Borrower, the
Required Lenders, each Lender whose Commitment is being increased and the Agent;
(b) the Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory to the
Agent, of the Borrower authorizing the execution, delivery and performance by
the Borrower of this Amendment;
(c) the Agent shall have received, with a counterpart for each
Lender, an opinion of Xxxxx, Xxxxxxxx & Xxxxx, counsel to the Borrower, dated
the date hereof, in form and substance satisfactory to the Agent covering such
matters as the Agent may reasonably request;
(d) each of the Agent and each Lender shall have received any fees
and expenses required to be received by it on the Amended Effective Date;
(e) each Lender shall have received for its account a promissory
note of the Borrower evidencing the Revolving Credit Loans of such Lender,
substantially in the form of Exhibit A to the Credit Agreement, with appropriate
insertions as to date and principal amount; and
(f) the Agent shall have received, in form and substance
satisfactory to it, a written confirmation of the Subsidiaries Guarantee,
executed and delivered by a duly authorized officer of each Subsidiary
Guarantor.
7. Representations and Warranties. After giving effect to this
Amendment, on the Amendment Effective Date, the Borrower hereby confirms,
reaffirms and restates the representations and warranties set forth in Section 3
of the Credit Agreement.
8. Miscellaneous. (a) Except as otherwise expressly modified by this
Amendment, the Credit Agreement is and shall continue to be in full force and
effect in accordance with its terms.
(b) The Borrower shall pay the reasonable fees and disbursements of
counsel to the Agent incurred in connection with this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent.
(c) This Amendment may be executed by the parties hereto on one or
more counterparts, and all of such counterparts shall be deemed to constitute
one and the same instrument. This Amendment may be delivered by facsimile
transmission of the relevant signature pages hereof.
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(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their duly authorized officers on the
date first above written.
XXX XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board of Directors
and Chief Executive Officer
THE CHASE MANHATTAN BANK,
as Agent and as a Lender
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
NATIONSBANK, N.A., as successor in merger
with NationsBank of Texas, N.A.,
as Co-Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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Schedule I
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Commitments
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The Chase Manhattan Bank $ 35,000,000
NationsBank, N.A.(1) $ 32,500,000
U.S. Bank National Association $ 32,500,000
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$100,000,000
Addresses for Notices
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The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Oil & Gas Group
Fax: (000) 000-0000
NationsBank, N.A.1
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
U.S. Bank National Association
000 00xx Xxxxxx
XXXX0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
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(1) As successor in merger with NationsBank of Texas, N.A.
