Exhibit 10.2
LIMITED WAIVER AND SECOND AMENDMENT TO CREDIT
AGREEMENT
THIS LIMITED WAIVER AND SECOND AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”) is entered into as
of May 15, 2008 and effective as of May 15,
2008 (the “ Second Amendment
Effective Date ”) by and among the
lenders identified on the signature pages hereof (such lenders,
together with their respective successors and permitted assigns,
are referred to hereinafter each individually as a “
Lender ” and
collectively as the “ Lenders ”), WELLS FARGO
FOOTHILL, LLC. , a Delaware limited liability company, as administrative agent
for the Lenders (in such capacity, together with its successors and
assigns in such capacity, “ Agent ”), FOOTHILLS RESOURCES,
INC., a Nevada corporation (“Parent”) and each of
Parent’s Subsidiaries identified on the signature pages
hereof (such Subsidiaries, together with Parent, are referred to
hereinafter each individually as a “ Borrower ”, and individually
and collectively, jointly and severally, as the “
Borrowers ”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agent
have entered into a Credit Agreement dated as of December 13, 2007
(as heretofore amended and as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement
”); and
WHEREAS, the Borrowers, the Agent and the Lenders
have agreed to (i) waive certain Events of Default under the Credit
Agreement and (ii) make certain modifications to the Credit
Agreement in accordance with the terms and conditions of this
Amendment.
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, and for
other valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto agree as
follows:
1. Defined Terms . Capitalized terms
used but not defined herein shall have the respective meanings
ascribed to such terms in the Credit Agreement, as amended
hereby.
2.
Limited Waiver . The
Borrowers have advised the Agent and the Lenders of circumstances
that constitute violations of the covenant contained in Section
6.14(c) of the Credit Agreement for the quarter ending March 31,
2008 ( the “ Disclosed
Default ”). At
the Borrowers’ request, subject to and upon the terms and
conditions set forth in this Amendment, the Agent and the Lenders
hereby waive the Disclosed Default; provided that such waiver is based
upon, and subject to, the representation and warranty of the
Borrowers that the Leverage Ratio for the period ending March 31,
2008 was greater than or equal to 7.55 to 1.
3.
Amendments to the Credit Agreement
. The definition of “Base LIBOR Rate”
in Schedule 1.1 of the Credit Agreement is hereby deleted in its entirety and
the following text substituted in lieu thereof:
“ “ Base LIBOR
Rate ” means the greater of (i)
solely in the case of the Term Loan, four percent (4.0%) and (ii)
in the case of each of the Term Loan and an Advance the rate per
annum, determined by Agent in accordance with its customary
procedures, and utilizing such electronic or other quotation
sources as it considers appropriate, to be the rate at which Dollar
deposits (for delivery on the first day of the requested Interest
Period) are offered to major banks in the
London interbank market 2 Business Days prior to the
commencement of the requested Interest Period, for a term and in an
amount comparable to the Interest Period and the amount of the
LIBOR Rate Loan requested (whether as an initial LIBOR Rate Loan or
as a continuation of a LIBOR Rate Loan or as a conversion of a Base
Rate Loan to a LIBOR Rate Loan) by Borrowers in accordance with the
Agreement, which determination shall be conclusive in the absence
of manifest error; provided that for purposes of the Term Loan,
such rate shall be the rate applicable to the rate on a one-, two-,
three- or six-month LIBOR contract on the relevant date of
determination and shall apply to the entire Term
Loan.”
4.
Conditions .
This Amendment shall become effective as of the
Second Amendment Effective Date when each of the following conditions precedent have
been satisfied:
(a) the
execution and delivery of this Amendment by the Parent, the
Borrowers, Agent and each of the Required Lenders;
(b) the
receipt by the Agent, for the benefit of Wells Fargo Foothill, LLC
only, of a waiver fee in the amount of $15,000, which fee shall be
deemed fully earned and nonrefundable upon receipt;
(c) the
Borrowers shall have paid all Lender Group Expenses incurred in
connection with the transactions evidenced by this Amendment,
including, without limitation, reasonable fees, costs and expenses
of counsel; and
(d) receipt
of such other documents, certificates and agreements requested by
the Agent in its reasonable discretion.
5. Agreement
in Full Force and Effect as Amended. Except as specifically
amended, consented and/or waived hereby, the Credit Agreement and
other Loan Documents shall remain in full force and e
