FIRST AMENDMENT TO FIFTH RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO FIFTH RESTATED LOAN AGREEMENT (hereinafter called
the "First Amendment") executed as of the 31st day of December, 1996, by and
among XXXXXXX XXXXXXXX ENERGY, INC., a Delaware corporation ("CWE"), WARRIOR GAS
CO., a Texas corporation ("Warrior") (CWE and Warrior being hereinafter
sometimes collectively referred to as "Borrower"), CWEI ACQUISITIONS, INC., a
Delaware corporation (hereinafter referred to as "Guarantor"), BANK ONE, TEXAS,
N.A., a national banking association ("Bank One"), BANQUE PARIBAS, a French
banking corporation ("Paribas") and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association ("FNB"), (Bank One, Paribas and FNB each in their
capacity as a lender hereunder, together with each and every future holder of
any note issued pursuant to the Loan Agreement, as hereinafter defined, are
hereinafter collectively referred to as "Banks" and individually as "Bank") and
BANK ONE, TEXAS, N.A., as "Agent".
W I T N E S S E T H:
WHEREAS, Borrower and Banks entered into a Fifth Restated Loan Agreement
dated as of July 18, 1996 (the "Loan Agreement") under the terms of which Banks
agreed to provide a reducing revolving loan facility to Borrower; and
WHEREAS, Borrower and Banks have agreed to make certain other changes to
the Loan Agreement.
NOW, THEREFORE, the parties hereby agree to amend the Loan Agreement as
follows:
1. Unless otherwise defined herein, all defined terms used herein shall
have the same meaning ascribed to such terms in the Loan Agreement.
2. Section 1 of the Loan Agreement is hereby amended in the following
respects:
(a) Subsection (e) of Section 1 is hereby deleted in its entirety and
the following inserted in lieu thereof:
"(e) BASE RATE MARGIN - The fluctuating Base Rate Margin in
effect from day to day shall be:
(i) three-eighths of one percent (3/8%) per annum
whenever the Total Outstandings are greater than 75% of the
Elected Borrowing Limit in effect at the time in question;
(ii) one-fourth of one percent (1/4%) per annum
whenever the Total Outstandings are greater than 50%, but
less
than or equal to 75%, of the Elected Borrowing Limit in
effect at the time in question;
(iii) one-eighth of one percent (1/8%) per annum
whenever the Total Outstandings are greater than 25%, but
less than or equal to 50%, of the Elected Borrowing Limit in
effect at the time in question;
(iv) zero, whenever the Total Outstandings are 25% or
less of the Elected Borrowing Limit in effect at the time in
question."
(b) Subsection (j) of Section 1 is hereby deleted in its entirety and
the following inserted in lieu thereof:
"(j) CASH FLOW - The Xxxxxxxx Consolidated Entities' cash
flow from operations before working capital charges, excluding
cash flow attributable to Vendor Financing, calculated in
accordance with GAAP for the fiscal quarter being measured."
(c) Subsection (o) of Section 1 is hereby deleted in its entirety and
the following inserted in lieu thereof:
"(o) DEBT SERVICE - At the end of each fiscal quarter, the
sum of (i) the current portion of all notes payable as defined by
GAAP (excluding amounts outstanding on the Revolving Commitment),
plus (ii) the average Revolving Commitment during such quarter
divided by sixteen, plus (iii) the sum of all amounts paid or
payable by Borrower during such fiscal quarter as a result of its
election made pursuant to Section 9(b)(C)."
(d) Subsection (aa) of Section 1 is hereby deleted in its entirety
and the following inserted in lieu thereof:
"(aa) EURODOLLAR MARGIN - The fluctuating Eurodollar
Margin in effect from day to day shall be:
(i) one and three-quarters percent (1.75%) per
annum whenever the Total Outstandings are greater than
75% of the Elected Borrowing Limit in effect at the
time in question;
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(ii) one and one-half percent (1.50%) per annum
whenever the Total Outstandings are greater than 50%,
but less than or equal to 75%, of the Elected Borrowing
Limit in effect at the time in question;
(iii) one and one-quarter percent (1.25%) per
annum whenever the Total Outstandings are greater than
25%, but less than or equal to 50%, of the Elected
Borrowing Limit in effect at the time in question;
(iv) one percent (1%) per annum whenever the Total
Outstandings are 25% or less of the Elected Borrowing
Limit in effect at the time in question.
3. Section 8(a) of the Loan Agreement is hereby amended by deleting the
reference therein to "one-half of one percent (1/2%)" and substituting in lieu
thereof the words "one-quarter of one percent (1/4%)".
4. Section 13 is hereby amended in the following respect:
(a) Section 13(j) is hereby amended by deleting subsection (i)
therefrom and substituting the following in lieu thereof:
"(i) repurchase or redemption of its stock in an
amount not to exceed $3,000,000.00 in the
aggregate (excluding commissions) and . . ."
(b) Section 13(k) is hereby amended by deleting the "." at the end of
subsection (v) thereof, substituting "; and" in lieu thereof and by adding the
following new subsection (vi) thereto:
"(vi) repurchasing Borrower's stock permitted by
Section 13(j) hereof."
5. As of the date hereof, the Borrowing Base shall be $35,000,000 and the
Monthly Monthly Commitment Reduction shall be $0 per month until redetermined
pursuant to Section 7(b) of the Loan Agreement.
6. This First Amendment shall be effective as of the date first above
written (the "Effective Date").
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7. The obligation of the Banks under this First Amendment shall be
subject to the following conditions precedent:
(a) EXECUTION AND DELIVERY. Borrower shall have executed and
delivered to the Agent this First Amendment and other required documents,
all in form and substance satisfactory to the Agent;
(b) CORPORATE RESOLUTIONS. Agent shall have received appropriate
certified corporate resolutions for each Borrower and Guarantor;
(c) OTHER DOCUMENTS. The Agent shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as the Agent or its counsel may reasonably request, and
all such documents shall be in form and substance satisfactory to the
Agent; and
(d) LEGAL MATTERS SATISFACTORY. All legal matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory
to special counsel for the Agent retained at the expense of Borrower.
8. Except to the extent its provisions are specifically amended,
modified or superseded by this First Amendment, the representations,
warranties and affirmative and negative covenants of the Borrower contained
in the Loan Agreement are incorporated herein by reference for all purposes
as if copied herein in full. The Borrower hereby restate and reaffirm each
and every term and provision of the Loan Agreement, including, without
limitation, all representations, warranties and affirmative and negative
covenants.
9. Borrower hereby represents and warrants that all factual
information heretofore and contemporaneously furnished by or on behalf of
Borrower to Banks for purposes of or in connection with this First Amendment
does not contain any untrue statement of a material fact or omit to state any
material fact necessary to keep the statements contained herein or therein
from being misleading. Each of the foregoing representations and warranties
shall constitute a representation and warranty of Borrower made under the
Loan Agreement, and it shall be an Event of Default if any such
representation and warranty shall prove to have been incorrect or false in
any material respect at the time given. Each of the representations and
warranties made under the Loan Agreement (including those made herein) shall
survive and not be waived by the execution and delivery of this First
Amendment or any investigation by Bank.
10. The Borrower agrees to indemnify and hold harmless the Banks and their
respective officers, employees, agents, attorneys and representatives
(singularly, an "Indemnified Party", and collectively, the "Indemnified
Parties") from and against any loss, cost, liability, damage or expense
(including the reasonable fees and out-of-pocket expenses of counsel to the
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Banks, including all local counsel hired by such counsel) ("Claim") incurred
by the Banks in investigating or preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law, federal or state
environmental law, or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of
or is based upon any acts, practices or omissions or alleged acts, practices
or omissions of the Borrower or their agents or arises in connection with the
duties, obligations or performance of the Indemnified Parties in negotiating,
preparing, executing, accepting, keeping, completing, countersigning,
issuing, selling, delivering, releasing, assigning, handling, certifying,
processing or receiving or taking any other action with respect to the Loan
Documents and all documents, items and materials contemplated thereby even if
any of the foregoing arises out of an Indemnified Party's ordinary
negligence. The indemnity set forth herein shall be in addition to any other
obligations or liabilities of the Borrower to the Banks hereunder or at
common law or otherwise, and shall survive any termination of this Agreement,
the expiration of the Loan and the payment of all indebtedness of the
Borrower to the Banks hereunder and under the Notes, provided that the
Borrower shall have no obligation under this Section 10 to the Bank with
respect to any of the foregoing arising out of the gross negligence or
willful misconduct of the Banks. If any Claim is asserted against any
Indemnified Party, the Indemnified Party shall endeavor to notify the
Borrower of such Claim (but failure to do so shall not affect the
indemnification herein made except to the extent of the actual harm caused by
such failure). The Indemnified Party shall have the right to employ, at the
Borrower's expense, counsel of the Indemnified Parties' choosing and to
control the defense of the Claim. The Borrower may at its own expense also
participate in the defense of any Claim. Each Indemnified Party may employ
separate counsel in connection with any Claim to the extent such Indemnified
Party believes it reasonably prudent to protect such Indemnified Party. THE
PARTIES INTEND FOR THE PROVISIONS OF THIS SECTION 10 TO APPLY TO AND PROTECT
EACH INDEMNIFIED PARTY FROM THE CONSEQUENCES OF STRICT LIABILITY IMPOSED OR
THREATENED TO BE IMPOSED ON ANY INDEMNIFIED PARTY AS WELL AS FROM THE
CONSEQUENCES OF ITS OWN NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE
SOLE, CONTRIBUTING, OR CONCURRING CAUSE OF ANY CLAIM.
11. WRITTEN LOAN AGREEMENT. THE LOAN AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG 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 BETWEEN AND
AMONG THE PARTIES.
12. The Guarantor is executing this First Amendment in its capacity as
Guarantor for the sole purpose of acknowledging the existence of the First
Amendment to Fifth Restated Loan Agreement and consenting to the execution
thereof by the Borrower.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to Fifth
Restated Loan Agreement to be duly executed as of the date first above written.
BORROWER:
XXXXXXX XXXXXXXX ENERGY, INC.,
a Delaware corporation
By: /s/ L. Xxxx Xxxxxx
-----------------------------------------
L. Xxxx Xxxxxx,
Executive Vice President
WARRIOR GAS CO.,
a Texas corporation
By: /s/ L. Xxxx Xxxxxx
-----------------------------------------
L. Xxxx Xxxxxx,
Vice President
GUARANTOR:
CWEI ACQUISITIONS, INC.,
a Delaware corporation
By: /s/ L. Xxxx Xxxxxx
-----------------------------------------
L. Xxxx Xxxxxx,
President
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BANKS:
BANK ONE, TEXAS, N.A.,
a national banking association
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxx X Xxxxxxxx,
Vice President
BANQUE PARIBAS
a French banking corporation
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
a national banking association
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Agent
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AGENT:
BANK ONE, TEXAS, N.A.,
a national banking association
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx,
Vice President
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