THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Third Amendment") dated as
of April 15, 2002, to be effective as set forth in Section 5 hereof, is among
Xxxxxxxx Resources, Inc., a Nevada corporation ("Borrower"), the Lenders from
time to time party to the Credit Agreement (as defined below), Toronto Dominion
(Texas), Inc., ("Administrative Agent"), and The Toronto-Dominion Bank ("Issuing
Bank").
PRELIMINARY STATEMENT
A. The Borrower, the Lenders, the Administrative Agent and the Issuing Bank
have entered into that certain Credit Agreement dated as of December 17, 2001,
as amended by the First Amendment to Credit Agreement dated as of December 26,
2001, and as further amended by the Second Amendment to Credit Agreement dated
as of February 4, 2002 (such Credit Agreement, as amended by such First
Amendment to Credit Agreement and by such Second Amendment to Credit Agreement,
and as otherwise amended, restated or supplemented from time to time until the
date hereof, the "Credit Agreement").
B. The Borrower intends to sell certain Oil and Gas Properties located in
Nueces County, Texas having a fair market value of less than $1,000,000 in the
aggregate.
C. The Borrower, the Administrative Agent, the Issuing Bank and the Lenders
intend to amend Section 10.1 of the Credit Agreement to permit the
Administrative Agent to release from the lien of the Security Documents without
the consent of the Lenders any assets of the Borrower or any Guarantor sold,
assigned, transferred or conveyed by Borrower or such Guarantor pursuant to a
Disposition permitted by Section 7.5 of the Credit Agreement.
D. The Borrower, the Lenders, the Administrative Agent and the Issuing Bank
intend to amend certain provisions of the Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, the parties agree as follows:
Section 5. Definitions. Unless otherwise defined in this Third Amendment,
each capitalized term used in this Third Amendment has the meaning assigned to
such term in the Credit Agreement.
Section 6. Amendment of Credit Agreement. Section 10.1(h) of the Credit
Agreement is hereby amended and restated in its entirety to provide as follows:
(h) release any collateral under any of the Security Documents, or
permit any termination, amendment, modification, waiver or release of
any Security Document or an provision thereof, provided that,
notwithstanding the foregoing, the consent of the Lenders shall not be
required for any release of any collateral under any of the Security
Documents in connection with a Disposition by the Borrower or any
Guarantor if such Disposition is permitted by Section 7.5 hereof;
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Section 7. Consent to Release of Liens. The Lenders hereby consent to the
release by the Administrative Agent of any and all liens created by any of the
Security Documents on the assets of Xxxxxxxx Oil & Gas, Inc. set forth on
Exhibit A hereto.
Section 8. Ratification. The Borrower hereby ratifies and confirms all of
the Obligations under the Credit Agreement and the other Loan Documents.
Section 9. Effectiveness. This Third 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 Third Amendment from the Borrower, the Issuing
Bank and each Lender, together with a duly executed consent of each
Guarantor to this Third Amendment and a ratification of each Loan
Document to which such Guarantor is a party.
(b) 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 Third 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 Third 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.
Section 10. Governing Law. This Third 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 11. Miscellaneous. (a) On and after the effectiveness of this Third
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 Third Amendment; (b) the execution, delivery and
effectiveness of this Third Amendment shall not, except as expressly provided
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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 Third 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 Third Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Third Amendment.
Section 12. 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 Third 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: Senior Vice President
ADMINISTRATIVE AGENT, ISSUING BANK
AND LENDERS:
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent and Lender
By:/s/XXXX XXXXXXX
------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE TORONTO-DOMINION BANK,
as Issuing Bank
By:/s/XXXX XXXXXXX
------------------
Name: Xxxx Xxxxxxx
Title: Manager, Syndication and Credit
Administration
BANK OF MONTREAL,
as Syndication Agent and Lender
By:/s/ XXXXX X. XXXXXX
----------------------
Name: Xxxxx X. Xxxxxx
Title: Director
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FORTIS CAPITAL CORP.
By:/s/XXXXXXX X. XXXXXX
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Direct
By:/s/XXXXX XXXXXXXXXX
----------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
BANK OF SCOTLAND
By:/s/XXXXXX XXXXXX
-------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
WASHINGTON MUTUAL BANK, FA
By:/s/XXXX X. XXXXXX
-----------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
CIBC INC.
By:/s/XXXX X. CATIKIS
---------------------
Name: Xxxx X. Catikis
Title:Authorized Signatory
COMERICA BANK-TEXAS
By:/s/XXXXX X. XXXXXX
---------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
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COMPASS BANK
By: /s/XXXXXXX XXXXXXXX
-----------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By:/s/XXXX XXXXX
----------------
Name: Xxxx Xxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By:/s/XXXX XXXXXX
-----------------
Name: Xxxx Xxxxxx
Title: Assistant 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
By:/s/XXXXXX XXXXX
------------------
Name Xxxxxx Xxxxx
Title: Vice President
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ACKNOWLEDGMENT BY GUARANTORS
Each of the undersigned Guarantors hereby (i) consents to the terms and
conditions of that certain Third Amendment to Credit Agreement dated as of April
15, 2002 (the Third Amendment), (ii) acknowledges and agrees that its consent is
not required for the effectiveness of the Third 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 Third Amendment.
XXXXXXXX OIL & GAS, INC.
XXXXXXXX OIL & GAS HOLDINGS, INC.
XXXXXXXX OIL & GAS - LOUISIANA, LLC
XXXXXXXX OFFSHORE, LLC
DEVX ENERGY, INC., a Delaware corporation
DEVX ENERGY, INC., a Nevada corporation
DEVX OPERATING COMPANY
By: /s/XXXXXX X. XXXXX
----------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
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