Exhibit 10.3
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Second Amendment") dated
as of February 4, 2002, to be effective as set forth in Section 6 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 (such Credit Agreement, as amended by such First 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 issue pursuant to the terms of the Existing
Xxxxxxxx Indenture (as defined in the Credit Agreement) additional senior
unsecured notes due 2007 in an aggregate principal amount not exceeding
$75,000,000 (the "Additional Bond Transaction"), a portion of the proceeds of
which shall be used to repay Loans outstanding under the Credit Agreement.
C. The Determining Agents and the Lenders have determined that the
Borrowing Base shall be automatically reduced to $240,000,000 concurrently with
the consummation of the Additional Bond Transaction.
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 Second Amendment,
each capitalized term used in this Second Amendment has the meaning assigned to
such term in the Credit Agreement.
Section 6. Amendment of Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) The definition of "Existing Xxxxxxxx Indenture" in Section 1.1 of
the Credit Agreement is hereby amended by deleting the words "in the
aggregate principal amount of $150,000,000 due 2007" therein and inserting
in their place the phrase "due 2007 in an aggregate principal amount of up
to $220,000,000".
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(b) The definition of "Indenture Debt Documents" in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and replaced by the
following definition:
" "Indenture Debt Documents" means the Existing Xxxxxxxx
Indenture and any documents related to or delivered in connection with
any refinancings, refundings, renewals or extensions of the facilities
described in the Existing Xxxxxxxx Indenture." (c) Clause (f) of
Section 7.3 of the Credit Agreement is hereby amended and restated in
its entirety to provide:
" (f) Indebtedness of (i) DevX outstanding on the Closing Date
under the DevX Indenture and (ii) the Borrower outstanding under the
Indenture Debt Documents, provided that the principal amount of any
Indebtedness outstanding under the Indenture Debt Documents shall not
exceed $220,000,000 at any time (except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with any refinancing,
refunding, renewal or extension of the facilities described in the
Indenture Debt Documents)."
Section 7. Use Proceeds of Additional Bond Transaction to Repay Loans. The
Borrower hereby covenants and agrees that it shall, immediately upon the
consummation of the Additional Bond Transaction, use that portion of the
proceeds of the Additional Bond Transaction to repay any Loans outstanding on
the date thereof such that, after giving effect to the application of such
proceeds, the then aggregate outstanding amount of all Credit Extensions under
the Credit Agreement shall be equal to or less than $240,000,000.
Section 8. Redetermination of the Borrowing Base. Concurrently with the
consummation of the Additional Bond Transaction and the effectiveness of this
Second Amendment (as set forth in Section 6 below), the Borrowing Base shall
automatically reduce to $240,000,000, which Borrowing Base shall remain in
effect until the Borrowing Base shall be redetermined in accordance with Section
2.8 of the Credit Agreement.
Section 9. Ratification. The Borrower hereby ratifies and confirms all of
the Obligations under the Credit Agreement and the other Loan Documents.
Section 10. Effectiveness. This Second Amendment shall become effective
concurrently with the consummation of the Additional Bond Transaction upon
satisfaction of each of the conditions set forth in this Section 6:
(a) The Administrative Agent shall have received duly executed
counterparts of this Second Amendment from the Borrower, the Issuing Bank
and Lenders holding not less than 75% of the aggregate amount of the Credit
Extensions then outstanding, together with a duly executed consent of each
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Guarantor to this Second 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 Second 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
Second 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.
(c) All conditions precedent to the effectiveness of the Additional
Bond Transaction (other than the effectiveness of this Second Amendment)
shall have been satisfied or waived and the Borrower shall have consummated
the Additional Bond Transaction.
Section 11. Governing Law. This Second 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 12. Miscellaneous. (a) On and after the effectiveness of this
Second 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 Second Amendment; (b) the execution, delivery and
effectiveness of this Second 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 Second 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 Second Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Second Amendment.
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Section 13. 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 Second Amendment to
be executed by its officers thereunto duly authorized as of the date Second
above written.
BORROWER:
XXXXXXXX RESOURCES, INC.,
a Nevada corporation
By:/s/M. XXX XXXXXXX
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Name: M.Xxx Xxxxxxx
Title: 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
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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/XXXXXX XXXXXX
----------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
COMERICA BANK-TEXAS
By:/s/XXXXX X. XXXXXX
------------------
Name: Xxxxx X. Xxxxxx
Title:Corporate Banking Officer
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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
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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:______________________
Name:
Title:
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ACKNOWLEDGMENT BY GUARANTORS
Each of the undersigned Guarantors hereby (i) consents to the terms and
conditions of that certain Second Amendment to Credit Agreement dated as of
February 4, 2002 (the "Second Amendment"), (ii) acknowledges and agrees that its
consent is not required for the effectiveness of the Second 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 Second 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/M. XXX XXXXXXX
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Name: M. Xxx Xxxxxxx
Title: President
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