Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "First Amendment") dated as
of December 26, 2001 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
(the "Credit Agreement").
B. 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 1. Definitions. Unless otherwise defined in this First Amendment,
each capitalized term used in this First Amendment has the meaning assigned to
such term in the Credit Agreement.
Section 2. Amendment of Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Adjusted LIBO Rate" and inserting in its place the
following definition:
" "Adjusted LIBO Rate" means, with respect to each particular
Borrowing comprised of LIBO Rate Loans and the associated LIBO Rate and
Reserve Percentage, the rate per annum calculated by the Administrative
Agent (rounded upwards, if necessary, to the next higher 1/100%) determined
on a daily basis pursuant to the following formula:
Adjusted LIBO Rate = LIBO Rate
---------------------------
(1.00 - Reserve Percentage)"
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(b) Section 1.1 of the Credit Agreement is hereby amended by inserting
in the alphabetically appropriate location the defined term "Determining
Agents", which definition shall provide as follows:
" "Determining Agents" means the Administrative Agent and the
Syndication Agent."
(c) Section 1.1 of the Credit Agreement is hereby amended by inserting
in the alphabetically appropriate location the defined term "Syndication
Agent", which definition shall provide as follows:
" "Syndication Agent" means the Bank of Montreal in its capacity as
syndication agent under any of the Loan Documents, or any successor
syndication agent."
(d) Section 2.8 of the Credit Agreement is hereby amended by deleting
the second sentence therein and replacing it with the following sentence:
"Within thirty (30) days after receiving such information, reports and
data, or as promptly thereafter as practicable, the Determining Agents
shall agree upon a redetermined Borrowing Base, which the Determining
Agents shall recommend to the Lenders."
Section 3. Ratification. The Borrower hereby ratifies and confirms all of
the Obligations under the Credit Agreement and the other Loan Documents.
Section 4. Effectiveness. This First Amendment shall become effective as of
December 26, 2001 upon satisfaction of the conditions set forth in this Section
4:
A. The Administrative Agent shall have received duly executed
counterparts of this First Amendment from the Borrower, the Issuing Bank
and the Lenders representing not less than the Majority Lenders.
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 First 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 First
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'
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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 5. Governing Law. This First 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 6. Miscellaneous. (a) On and after the effectiveness of this First
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 First Amendment; (b) the execution, delivery and
effectiveness of this First 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 First 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 First Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this First Amendment.
Section 7. 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 First 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 XXXXX
----------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ADMINISTRATIVE AGENT, ISSUING BANK
AND LENDER
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
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