EXECUTION] FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.6
[EXECUTION]
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (herein called the “Amendment”) made as of
December 15, 2005 by and among XXXXX PETROLEUM COMPANY, a Delaware corporation
(“Borrower”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, individually and as
Administrative Agent (“Agent”), and the Lenders party to the Original Agreement
defined below (“Lenders”).
W
I T N E
S S E T H:
WHEREAS,
Borrower, Agent and Lenders entered into that certain Credit Agreement dated
as
of June 27, 2005 (the “Original Agreement”), for the purpose and consideration
therein expressed, whereby Lenders became obligated to make loans to Borrower
as
therein provided; and
WHEREAS,
Borrower, Agent and Lenders desire to amend the Original Agreement as set forth
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.
“Original
Certificate” means the original Omnibus Certificate of Borrower dated as of
June 27, 2005.
ARTICLE
II.
AMENDMENTS
TO ORIGINAL AGREEMENT
Section
2.1. Defined
Terms.
The
definition of “Current Assets” in Section 1.1 of the Original Agreement is
hereby amended in its entirety to read as follows:
“'Current
Assets'
means
the sum of the current assets of Borrower and its Consolidated Subsidiaries
at
such time, plus the Availability at such time in an amount not to exceed
$50,000,000, but excluding, for purposes of this definition any non-cash gains
for any Hedging Contract resulting from the requirements of SFAS 133 at such
time.”
1
Exhibit
10.6
ARTICLE
III.
CONDITIONS
OF EFFECTIVENESS
Section
3.1. Effective
Date.
This
Amendment shall become effective as of the date first above written when, and
only when, (i) Agent shall have received, at Agent's office, a counterpart
of
this Amendment executed and delivered by Borrower and Majority Lenders and
(ii)
Agent shall have additionally received all of the following documents, each
document (unless otherwise indicated) being dated the date of receipt thereof
by
Agent, duly authorized, executed and delivered, and in form and substance
satisfactory to Agent:
(a)
Officer's
Certificate and Supporting Documents.
Agent
shall have received (i) a certificate of the Secretary and the President or
Chief Financial Officer of Borrower certifying (A) that all of the
representations and warranties set forth in Article IV hereof are true and
correct and no Default exists, (B) that attached to the Original Certificate
is
a true and complete copy of resolutions adopted by the Board of Directors of
Borrower authorizing the execution, delivery and performance of this Amendment
and (C)
as to
the names and true signatures of the officers of Borrower authorized to sign
this Amendment, and (ii) such supporting documents as Agent may reasonably
request.
(b)
Borrower shall have paid, in connection with such Loan Documents, all recording,
handling, amendment and other fees required to be paid to Agent pursuant to
any
Loan Documents.
(c)
Borrower shall have paid, in connection with such Loan Documents, all other
fees
and reimbursements to be paid to Agent pursuant to any Loan Documents, or
otherwise due Agent and including fees and disbursements of Agent's attorneys.
ARTICLE
IV.
REPRESENTATIONS
AND WARRANTIES
Section
4.1. Representations
and Warranties of Borrower.
In
order to induce each Lender to enter into this Amendment, Borrower represents
and warrants to each Lender that:
(a)
The
representations and warranties contained in Article V of the Original Agreement
are true and correct at and as of the time of the effectiveness hereof, except
to the extent that the facts on which such representations and warranties are
based have been changed by the extension of credit under the Credit Agreement
except to the extent such representations and warranties specifically refer
to
an earlier date, in which case they are true and correct as of such earlier
date.
(b)
Borrower is duly authorized to execute and deliver this Amendment and is and
will continue to be duly authorized to borrow monies and to perform its
obligations under the Credit Agreement. Borrower has duly taken all corporate
action necessary to authorize the execution and delivery of this Amendment
and
to authorize the performance of the obligations of Borrower hereunder.
(c)
The
execution and delivery by Borrower of this Amendment, the performance by
Borrower of its obligations hereunder 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 certificate of incorporation
and
bylaws of Borrower, or of any material agreement, judgment, license, order
or
permit applicable to or binding upon Borrower, or result in the creation of
any
lien, charge or encumbrance upon any assets or properties of Borrower. Except
for those which have been 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 Borrower of this Amendment or to consummate
the transactions contemplated hereby and thereby.
(d)
When
duly executed and delivered, this Amendment and the Credit Agreement will be
a
legal and binding obligation of Borrower, enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by equitable
principles of general application.
(e)
The
audited annual Consolidated financial statements of Borrower dated as of
December 31, 2004 and the unaudited quarterly Consolidated financial statements
of Borrower dated as of September 30, 2005 fairly present the Consolidated
financial position at such dates and the Consolidated statement of operations
and the changes in Consolidated financial position for the periods ending on
such dates for Borrower. Copies of such financial statements have heretofore
been delivered to each Lender. Since such dates no material adverse change
has
occurred in the financial condition or businesses or in the Consolidated
financial condition or businesses of Borrower.
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Exhibit
10.6
ARTICLE
V.
MISCELLANEOUS
Section
5.1. Ratification
of Agreements.
The
Original Agreement as hereby amended is hereby ratified and confirmed in all
respects. The Loan Documents, as they may be amended or affected by this
Amendment, are hereby ratified and confirmed in all respects. Any reference
to
the Credit Agreement in any Loan Document shall be deemed to be a reference
to
the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein
or therein, operate as a waiver of any right, power or remedy of Lenders under
the Credit Agreement, the Notes, or any other Loan Document nor constitute
a
waiver of any provision of the Credit Agreement, the Notes 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 Loans, 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 Borrower
any Related Person/Restricted Person hereunder or under the Credit Agreement
to
any Lender shall be deemed to constitute representations and warranties by,
and/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.
Section
5.4. Governing
Law.
This
Amendment shall be deemed a contract made under the laws of the State of
California and shall be construed and enforced in accordance with and governed
by the laws of the State of California and the laws of the United States of
America, without regard to principles of conflicts of law.
Section
5.5. Counterparts;
Fax.
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 may be validly
executed by facsimile or other electronic transmission.
THIS
AMENDMENT 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 UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES.
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Exhibit
10.6
IN
WITNESS WHEREOF, this Amendment is executed as of the date first above written.
XXXXX
PETROLEUM CORPORATION,
as
Borrower
By:
Xxxxx
X. Xxxxxxxx Executive
Executive
Vice President and Chief Financial Officer
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent, LC Issuer and a Lender
By:
Xxx
X. Xxxxxxxxxxx
Vice
President
JPMORGAN
CHASE BANK, N.A.,
as a
Lender
By:
Jo
Xxxxx Xxxxxxxxx
Vice
President
BANK
OF SCOTLAND,
as a
Lender
By: Xxxxx
Xxxxx
Assistant
Vice Preside
BNP
PARIBAS,
as a
Lender
By:
Xxxxx
X. Xxxxxx
Managing
Director
By:
Xxxxx
Xxxxxx
Vice
President
CITIBANK
(WEST), FSB,
as a
Lender
By: Xxx
Xxxxxxx
VP/Credit
Relationship Mgr.
COMERICA
BANK,
as a
Lender
By:
Xxxx
Xxxxxx
Vice
President
MIDFIRST
BANK,
as a
Lender
By: Xxxxx
X. Xxxxxx
Vice
President
SOCIETE
GENERALE,
as a
Lender
By:
Xxxx
Xxxxxx
Vice
President
UNION
BANK OF CALIFORNIA, N.A.,
as a
Lender
By:
Xxxxxx Xxxxxxx
Vice
President
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