EXHIBIT 10.2
AMENDMENT AGREEMENT
(relating to a
US$23,000,000 Credit Agreement dated 30th March, 2001)
DATED 19th NOVEMBER,
2003
XXXXX & XXXXX
London
PG:340507.3
THIS AMENDMENT AGREEMENT is dated
19th November, 2003 and made between:
| (1) |
MADISON ENERGY FRANCE S.C.S. (formerly MADISON/CHART ENERGY S.C.S.) (MEF)
(the Borrowers’ Agent); |
| (2) |
MADISON OIL COMPANY EUROPE (MOCE), MADISON OIL FRANCE S.A. (MOF)
and MADISON ENERGY FRANCE S.C.S. (each a Borrower and together the
Borrowers); |
| (3) |
MADISON OIL COMPANY (MOC), MADISON PETROLEUM INC. (MPI), MADISON
OIL COMPANY EUROPE, MADISON OIL FRANCE S.A., MADISON ENERGY FRANCE S.C.S.,
MADISON (TURKEY) INC (Madison Turkey) and MADISON OIL TURKEY INC
(MOTI) (each a Guarantor and together the Guarantors); |
| (5) |
BARCLAYS BANK PLC as facility agent for and on behalf of the Finance Parties
(the Facility Agent). |
WHEREAS:
| (A) |
By a credit agreement dated 30th March, 2001 between the Borrowers, the
Guarantors, Barclays Capital as Arranger, the Banks (as defined therein) and
Barclays Bank PLC as Facility Agent, Technical Agent, Ancillary Bank and US
Security Trustee, as amended from time to time, (the Credit Agreement),
the parties to the Credit Agreement agreed terms and conditions in relation to
credit facilities made available to the Borrowers. |
| (B) |
By the Merger Agreement, MOC and MOC Acquisition Corporation merged and MOC
became the surviving corporation. |
| (C) |
The parties to this Amendment Agreement wish to amend and waive certain
provisions of the Credit Agreement in accordance with Clause 27 of the Credit
Agreement and agree certain other matters in the manner and subject to the terms
and conditions set out in this Amendment Agreement. |
| (D) |
All of the Banks, the Ancillary Bank and the Hedging Bank have authorised the
Facility Agent to enter into this Amendment Agreement on their behalf. |
NOW IT IS HEREBY AGREED as follows:
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In
this Amendment Agreement: |
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Subordination
Agreement means the Subordination Agreement dated 30th March, 2001 between members of
the Madison Group as debtors, the Facility Agent and MOF, MOC, MOCE and MPI. |
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Subordination
and Support Agreement means the subordination and support agreement between Toreador,
MOC and the Facility Agent dated November, 2001 entered into in connection with the Merger
Waiver Letter. |
| |
Toreador
Group means, at any time, Toreador and all of its Subsidiaries for the time being. |
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Toreador
Subordinated Revolving Credit Agreement means the subordinated revolving credit
agreement dated as of 3rd October, 2001 between MOC and Toreador pursuant to which
Toreador agrees to advance by way of loan certain monies to MOC. |
| |
Toreador
Trinidad means Toreador Trinidad Exploration and Production. |
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Trinidadian
Royalty Interest means any payment received by Toreador or any Obligor under the terms
of the Trinidadian Settlement Agreement and Release. |
| |
Trinidadian
Settlement Agreement and Release means the agreement dated 30th April, 2003
and made between, among others, Anglo-African Energy, Inc., Toreador, Toreador Trinidad
and MOC, as may be amended from time to time. |
| |
(A) |
the
Cendere oil field in Turkey; |
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(B) |
the
Zeynel oil field in Turkey; |
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(C) |
the
Boyabet oil field in Turkey; and |
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(D) |
the
Thrace Basin in Turkey. |
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Turkish
Capital Repatriation means any amounts paid to Toreador or any Obligor in relation to
the repatriation of the registered capital of any member of the Toreador Group in Turkey. |
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Turkish
Interest means: all of the Obligors’ present and future interest in a Turkish
Asset and all agreements, facilities or insurances relative to that Turkish Asset or to
Turkish Petroleum. |
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Turkish
Permitted Payments means: |
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(i) |
the costs referred to in paragraphs (a)(i) and (a)(ii) of the definition of
“Permitted Payment” in the Credit Agreement except that reference to
Borrower Borrowing Asset, Borrowing Base Petroleum or Borrowing Base Interest in
that definition shall be construed as a reference to Turkish Interest, Turkish
Petroleum and Turkish Asset); |
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(ii) |
any taxes payable by MOTI and Madison Turkey; and |
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(a) exploration
and appraisal expenditure; |
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(b) general
and administrative expenditure; or |
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(c) capital
expenditure not falling within paragraph (i) above, |
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payable
by MOTI and Madison Turkey, as applicable, to the extent the Majority Banks expressly
agree or require in writing (but not further or otherwise). |
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Turkish
Petroleum means in respect of a Turkish Asset, all petroleum won and saved from that
Turkish Asset that accrues to the Turkish Interest in that Turkish Asset (including,
without limitation, any such petroleum that is royalty petroleum). |
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(i) the gross proceeds (without any deductions whatsoever) of any disposal of Turkish
Petroleum; |
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(ii) any
sales tax payable on the amount referred to in paragraph (i) above; |
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any
other amount payable to MOTI, Madison Turkey and MOC in respect of any Turkish Petroleum,
Turkish Interest or Turkish Asset. |
| (a) |
Capitalised terms defined or used in the Credit Agreement have the same meanings
and constructions in this Amendment Agreement unless the contrary intention
appears. |
| (b) |
References to specific numbered clauses are clauses of the Credit Agreement and
references to paragraphs are, unless stated otherwise, references to paragraphs
of this Amendment Agreement. |
| (c) |
Clauses 1.2 (Construction), 28.1 (Transfers by Obligors) and 32-37 (inclusive)
shall apply to this Amendment Agreement as though set out in full in this
Amendment Agreement, except that: |
| |
(i) |
each reference to “Obligor” in Clauses 1.2 (Construction), 28.1
(Transfers by Obligors), 35 (Jurisdiction) and 37 (Waiver of Jury Trial) shall
be deemed to include Toreador; and |
| |
(ii) |
the reference to “the Guarantor” in Clause 35.2(f) (Service of
Process) shall be deemed to include Toreador. |
| (d) |
Unless expressly provided in this Amendment Agreement, this Amendment Agreement
does not create any right under the Contracts (Rights of Third Parties) Xxx 0000
which is enforceable by any person who is not a party to this Amendment
Agreement. |
| 2. |
AMENDMENTS, WAIVERS AND CONSENTS |
| |
Subject
to the terms of this Amendment and Agreement, the Credit Agreement will remain in full
force and effect and the Credit Agreement will be, and will be deemed to be, amended with
effect on and from the Amendment Effective Date. |
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Subject
to the terms and conditions of this Amendment Agreement, the Facility Agent confirms that
the Banks have consented to the following amendments to the Finance Documents: |
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(a) |
the
amendments set out in Schedule 1 of this Amendment Agreement; and |
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(b) |
the
amendments set out in paragraphs 4, 5 and 6 of this Amendment Agreement. |
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Subject
to the terms and conditions of this Amendment Agreement, the Facility Agent confirms that
the Banks agree to the waivers, mergers and consents set out in Schedule 2 of this
Amendment and Waiver Agreement. |
| 3.1 |
Power, authority and legal validity |
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Toreador
and each Obligor makes the following representations and warranties to each Finance Party
in respect of this Amendment Agreement: |
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(a) |
that it has the power to enter into and perform this Amendment Agreement and it
has taken all necessary action to authorise the entry into, performance and
delivery of this Amendment Agreement; |
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(b) |
that this Amendment Agreement constitutes its legal, valid and binding
obligation enforceable in accordance with its terms; and |
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(c) |
the arrangements contemplated by this Amendment Agreement do not in any way
affect any of the Finance Documents. |
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Each
Guarantor represents and warrants to each Finance Party as at the date it executes this
Amendment Agreement: |
| |
(a) |
that the arrangements contemplated by this Amendment Agreement do not in any way
affect the guarantee and undertakings given by it under Clause 15 (Guarantee);
and |
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(b) |
that the guarantee given by it under Clause 15 (Guarantee) is a continuing
guarantee, in full force and effect, and will extend to the ultimate balance of
all sums payable by the Obligors under the Finance Documents, regardless of the
arrangements contemplated by this Amendment Agreement and any intermediate
payments or discharge in whole or in part (including, without limitation, the
prepayments contemplated by this Amendment Agreement). |
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Toreador
and each Obligor represents and warrants that Madison (Turkey) Inc. and Madison Oil Turkey
Inc. are the legal and beneficial owners of the Turkish Assets respectively. |
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Toreador
and each Obligor represents and warrants as at the Amendment Effective Date that there is
no Default outstanding. |
| 4. |
REPAYMENT AND FORECASTS |
| |
Clause
6.1 (Repayment) shall be suspended in accordance with paragraph 4.2 (Term of Suspension)
below and, during the term of suspension, shall be replaced with the following provisions: |
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The
Borrowers, and where applicable MOC and Toreador, shall on the last Business Day of each
month repay an amount of the Loans equal to the aggregate of: |
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(a) |
French
Revenue, less any Permitted Payments; |
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(b) |
Turkish
Revenue, less Turkish Permitted Payments; |
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(c) |
any
amounts of Trinidadian Royalty Interest; and |
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(d) |
any
amounts of Turkish Capital Repatriation. |
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Clause
6.1 (Repayment) shall be suspended until the earlier of: |
| |
(a) |
the first Business Day of September, 2004; or |
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(b) |
such time as (i) the ratio of the Relevant NPV derived from the Forecast
prepared as of 9th January, 2004 in accordance with paragraph 4.6
(Forecasts) of this Amendment Agreement to Total Indebtedness is not less than
1.5:1; and (ii) the outstanding Loans do not exceed the Total Commitments. |
| 4.3 |
Calculation of Forecasts |
| |
The calculation of the Relevant NPV on each Calculation Date in accordance with Clause
16.1(d)(i) (General) shall be suspended for the duration of the suspension of Clause 6.1
(Repayment) in accordance with paragraph 4.1 (Repayment) above, except that the Relevant
NPV shall be calculated as of a 9th January, 2004 Calculation Date in
accordance with the provisions of Clause 16 (Forecasts), subject to the following
revisions: |
| |
(a) |
references
to 45 days in Clause 16.2(a) shall be to 16 days; |
| |
(b) |
references
to 28 days in Clause 16.2(b) shall be to 9 days; |
| |
(c) |
references
to 7 days in Clause 16.2(c) shall be to 5 days. |
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Toreador
undertakes to provide to the Facility Agent all information reasonably requested by the
Facility Agent. |
| |
(a) |
Toreador agrees to the appointment of any advisers that the Facility Agent,
acting reasonably (in the opinion of the Facility Agent), requires. |
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(b) |
Notwithstanding any provisions of the Credit Agreement, Toreador shall
immediately on demand indemnify the Facility Agent against any costs, loss or
liability incurred as a consequence of the appointment of any adviser in
accordance with sub-paragraph (a) above. |
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(a) |
Toreador agrees that any payment made or deemed made to MOC by Toreador in
connection with any Finance Document or amendment or waiver thereto shall be
“Junior Debt” for the purposes of the Subordination and Support
Agreement. MOC agrees that any payment made or deemed made by MOC to any of the
Borrowers shall be “Junior Debt” for the purposes of the Subordination
Agreement. |
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(b) |
An amount equal to each payment made by Toreador to the Facility Agent in
accordance with any Finance Document or amendment or waiver thereto shall be
deemed to be: |
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(i) |
a non-interest bearing loan made by Toreador to MOC repayable (subject to the
Subordination and Support Agreement on demand (or a loan on such other terms as
are agreed by MOC and Toreador (in any case subject to the Subordination and
Support Agreement)); and |
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(ii) |
a non-interest bearing loan made by MOC to the Borrowers repayable (subject to
the Subordination Agreement on demand (or a loan on such other terms as are
agreed by MOC and the Borrowers (in any case subject to the Subordination
Agreement)). |
| 5.4 |
Conditions subsequent |
| |
Within
14 days of the Amendment Effective Date, Toreador and each Obligor will provide the
Facility Agent with: |
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(a) |
an original copy of this Amendment Agreement, duly signed; |
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(b) |
board resolutions authorising the transactions contemplated by, and the
execution of, this Amendment Agreement; and |
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(c) |
specimen signatures of the persons authorised to sign this Amendment Agreement, |
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(all
in form and substance satisfactory to the Facility Agent). |
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In
addition to the Events of Default set out in Clause 20 of the Credit Agreement, if: |
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(a) |
the Forecast prepared as of 9th January, 2004 in accordance with
paragraph 4 (Forecasts) of this Amendment Agreement indicates that the ratio of
Relevant NPV to Total Indebtedness is less than 1.5:1; or |
| |
(b) |
any representation and warranty in this Amendment Agreement is incorrect when
made or repeated; or |
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(c) |
there is any breach of the repayment schedule in paragraph 4 (Repayment) of this
Amendment Agreement; |
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(d) |
the Merger Agreement, the Subordination and Support Agreement or the Toreador
Subordinated Revolving Credit Agreement is terminated, |
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then
that event shall constitute an Event of Default under Clause 20 (Default) and the Finance
Parties may thereafter exercise all of their rights in respect thereof under the Finance
Documents. |
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This
Amendment Agreement and the amendments, waivers and consents set out herein shall only
take effect on the date on which the Facility Agent has received a signed copy of this
Amendment Agreement duly executed by all parties (such date being the Amendment
Effective Date). |
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This
Amendment Agreement is a Finance Document, and is hereby designated as such by the
Borrowers’ Agent and the Facility Agent. |
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This
Amendment Agreement shall be governed by and construed in accordance with English law. |
SCHEDULE 1
| (a) |
The definition of “Fee Letter” in Clause 1.1 (Definitions) shall be
deleted in its entirety and shall be replaced with the following: |
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“Fee
Letter” means (i) any letter of the same date as this Agreement between MCE or
MOCE and the Arranger, the Facility Agent or the Technical Agent that is stated on
it’s face to be a Fee Letter (ii) the management and work fees letter dated
19th May, 2003 relating to management and work fees and (iii) the settlement
fee letter dated 19th May, 2003 relating to settlement, arrangement, technical
and supplemental fees. |
| (b) |
The definition of “Finance Document” in Clause 1.1 (Definitions) shall
be deleted in its entirety and shall be replaced with the following: |
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“Finance
Document” means this Agreement, the Ancillary Facility Letters, a Hedging
Agreement, a Security Document, a Subordination Agreement, a Fee Letter, a Novation
Certificate, a Guarantor Accession Agreement, the Merger Agreement, the Voting Agreement,
the Warrant Letters, the Warrant Buyback Letter and any other document designated as such
by the Facility Agent and the Borrowers’ Agent. |
| (c) |
Paragraph (d) in the definition of “Permitted Payment” in Clause 1.1
(Definitions) shall be deleted in its entirety and shall be replaced with: |
(d)
The following definitions will be inserted alphabetically in Clause 1.1
(Definitions):
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“Merger
Agreement” means the merger agreement dated as of 3rd October, 2001 between MOC,
Toreador and MOC Acquisition Corporation (a wholly-owned subsidiary of Toreador) pursuant
to which, subject to the satisfaction of certain conditions, MOC and MOC Acquisition
Corporation will merge and MOC shall be the surviving corporation. |
| |
“Voting
Agreement” means the voting agreement dated as of 3rd October, 2001 between
Toreador, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and PHD Partners, LP. |
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“Warrant”means
the warrants issued or to be issued pursuant to the Warrant Letters. |
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“Warrant
Letters” means the warrant letter dated 21st March, 2002 between Toreador and the
Arranger, as amended (the “First Warrant Letter”) and the warrant letter
dated 25th March, 2003 between Toreador and the Arranger (the “Second Warrant
Letter”). |
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“Warrant
Buyback Letter” means the letter dated 19th May, 2003 relating to the repurchase
of the Warrants |
| (e) |
Clause 6.2 shall be amended so the words “Tranche A” is inserted
before “Tranche B” and the words “, but any amount repaid under
Tranche A may subsequently be re-borrowed on and subject to the provisions of
the Agreement” are deleted. |
| (f) |
Clause 7.7(c) shall be amended so that the words “Any amount prepaid under
Tranche A may subsequently be re-borrowed on and subject to the terms of this
Agreement but” are deleted and the words “Tranche A,” are
inserted before “Tranche B”. |
| (g) |
The following sentence shall be inserted after “relevant amount” in
the fifth line of Clause 17.2(b): |
| |
“MCE
shall be further entitled to retain in the Euro Revenue Account (previously the Franc
Revenue Account) an amount equal to EUR200,000 in each of November, 2003 and December,
2003 to the extent that such amounts are to be used towards discharge of MCE’s
liability for French production tax due January, 2004 for the tax year 2003 and provided
that such amounts do not exceed in aggregate EUR900,000. Such liability shall not be a
Permitted Payment for the purposes of this sub-paragraph (b) and shall be released only on
the express instruction of the Facility Agent.” |
| (h) |
Clause
19.25(a)(iii) (Turkish business) shall be deleted and shall be replaced with: |
| |
“(iii) |
in any event, does not make any payment to any other member of the Toreador
Group except for payment of the kind contemplated by paragraph (ii)(B)
above;". |
| (i) |
Clause
19.25(b) shall be deleted in its entirety and replaced with the following: |
| |
“Toreador
and MOCE undertake to procure that, by no later than forty-five days after Madison Turkey
has received all Turkish Capital Repatriations that it is entitled to: |
| |
(a) |
Madison Turkey shall have transferred all of its assets, liabilities, business
and undertakings to MOTI and shall be wound up and dissolved; and |
| |
(b) |
that MOTI shall have discharged in full all of the consideration for that
transfer.” |
| (j) |
A
new Clause 19.30 of the Credit Agreement shall be inserted as follows: |
| |
MOC
undertakes not to agree to any waiver, amendment, termination or cancellation of, or of
any term of, the Merger Agreement or the Voting Agreement.” |
| (k) |
For the purposes of 20.3 (Breach of other obligations), 20.4
(Misrepresentation), 20.12 (Unlawfulness), 20.13 (Effectiveness of Security),
20.22 (U.S. Bankruptcy Laws) and 20.23 (ERISA) the word “Obligor”
shall be deemed to include Toreador. |
| (l) |
For the purposes of Clauses 20.5 (Cross-default), 20.6 (Insolvency), 20.7
(Insolvency proceedings), 20.8 (Appointment of receivers and managers), 20.9
(Creditor’s processes), 20.10 (Analogous proceedings), 20.11 (Cessation of
business) and 20.17 (Litigation) the phrase “member of the Group”
shall be deemed to include Toreador. |
| (m) |
Clause 20.20(d) (Change of Control) shall be deleted and shall be replaced with: |
| (n) |
A
new Clause 20.20(e) (Change of Control) of the Credit Agreement shall be
inserted as follows: |
| |
“(e) |
any single person, or group of persons acting in consort (as defined in the City
Code on Takeovers and Mergers) acquires control (as defined in Section 416 of
the Income and Corporation Taxes Act 1998) of Toreador Resources
Corporation.”. |
SCHEDULE 2
| (i) |
Any breach of Clause 20.14 (Cover Ratios) as a consequence of the Forecast
re-determination dated 19th September, 2003. |
| (ii) |
Failure by the Borrowers’ Agent to provide the independent engineer’s
report in accordance with Clause 19.3(e). |
| (iii) |
Any breach of any waiver letter waiving or amending any provisions of any of the
Finance Documents. |
| (iv) |
The following Events of Default: |
| |
(a) |
Under Clauses 19.12(a) (Mergers and acquisitions) and 20.3 (Breach of other
obligations) and Clause 20.20(d) (Change of control) constituted by MOC entering
into and performing the Merger Agreement and the Voting Agreement and by the
occurrence of the Effective Time (as that term is defined in the Merger
Agreement). |
| |
(b) |
Under Clauses 19.13 (Other Financial Indebtedness) and 20.3 (Breach of other
obligations) constituted by MOC incurring any of the indebtedness referred to in
paragraph 5.3 of the Amendment Agreement. |
| |
(c) |
Under Clauses 19.14 (Loans) and 20.3 (Breach of other obligations) constituted
by MOC making loans to the Borrower referred to in paragraph 5.3 of the
Amendment Agreement. |
| |
(d) |
Under Clauses 19.13 (Other Financial Indebtedness) and 20.3 (Breach of other
obligations) constituted by the Borrowers being deemed to have borrowed from MOC
referred to in paragraph 5.3 of the Amendment Agreement. |
SIGNATORIES
FACILITY AGENT
Barclays Bank PLC
By: /s/Xxxxxx Xxxxxxx |
|
|
|
BORROWERS' AGENT
Madison Energy France S.C.S.
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
BORROWERS
Madison Oil Company Europe
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Oil France S.A.
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Energy France S.C.S.
By: /s/ Xxxxxxx X. Xxxx |
|
|
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GUARANTORS
Madison Oil Company
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Petroleum Inc
By: /s/ Xxxxxxx X. Xxxx |
|
|
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Madison Oil Company Europe
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Oil France S.A.
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Energy France S.C.S.
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison (Turkey) Inc
By: /s/ Xxxxxxx X. Xxxx |
|
|
|
Madison Oil Turkey Inc
By: /s/ Xxxxxxx X. Xxxx |
|
|
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TOREADOR
Toreador Resources Corporation
By: /s/ Xxxxxxx X. Xxxx |
|
