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EXHIBIT 10.29(d)
EXECUTION COPY
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of November 20,
1995 (this "Amendment"), is among CMS NOMECO OIL & GAS CO., a Michigan
corporation (the "Company"), the banks set forth on the signature pages hereof
(collectively, the "Banks") and NBD BANK, as agent for the Banks (in such
capacity, the "Agent").
RECITALS
A. The Company, the Banks and the Agent are parties to an Amended and
Restated Credit Agreement, dated as of November 1, 1993, as amended by a First
Amendment to Credit Agreement dated December 23, 1994, a Second Amendment to
Credit Agreement and Assumption Agreement dated as of March 1, 1995 and a Third
Amendment to Credit Agreement dated as of August 31, 1995 (the "Credit
Agreement").
B. The Company has requested that the Agent and the Banks amend the
Credit Agreement to increase the revolving credit facility from $130,000,000 to
$140,000,000, all on the terms set forth herein.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon the satisfaction of the condition precedent
described in Article III hereof, the Credit Agreement shall be amended as
follows:
1.1 Reference in recital paragraph B on the first page of the
Credit Agreement to "$80,000,000, with the possibility of increasing to
$110,000,000 if an additional bank is added to this Agreement," is
hereby deleted and "$140,000,000" is substituted in place thereof.
1.2 The Commitment and Pro Rata Share of each Bank under the
Credit Agreement shall be as described next to its signature below,
which shall be deemed to amend and modify the Pro Rata Share and Commitment of
each Bank as currently described in the Credit Agreement.
1.3 Simultaneously herewith, the Company shall deliver a
Revolving Credit Note duly executed to each Bank in the amount of its
Commitment as revised hereby (the "New Notes"). Each such New Note shall be
deemed issued in exchange and replacement for the existing Revolving Credit
Note issued to each Bank.
1.4 Reference in Section 10.6(i) to "$130,000,000" shall be
deleted and "$140,000,000" shall be substituted in place thereof.
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ARTICLE II. REPRESENTATIONS. The Company represents and warrants to the Agent
and the Banks that:
2.1 The execution, delivery and performance of this Amendment
and the New Notes are within its powers, have been duly authorized and
are not in contravention with any law, of the terms of its Articles of
Incorporation or By-laws, or any undertaking to which it is a party or by which
it is bound.
2.2 This Amendment and the New Notes are the legal, valid and
binding obligations of the Company enforceable against it in accordance
with their terms.
2.3 After giving effect to the amendments herein contained,
the representations and warranties contained in Section 6 of the Credit
Agreement are true on and as of the date hereof with the same force and effect
as if made on and as of the date hereof.
2.4 No Event of Default or any event or condition which might
become an Event of Default with notice or lapse of time, or both, exists or has
occurred and is continuing on the date hereof.
ARTICLE III. CONDITIONS PRECEDENT.
3.1 This Amendment shall not become effective until (a) the
Company delivers to the Agent and the Banks copies of resolutions adopted by
the Board of Directors of the Company evidencing the due authorization of this
Amendment and the New Notes by the Company, (b) the Company shall have
executed the New Notes, (c) each Guarantor shall execute the consent at the end
of this Amendment, (d) general counsel to the Company shall deliver an opinion
with respect to the matters set forth in Section 2.1 and 2.2 hereof and (e) the
Company, the Agent and each of the Banks shall execute this Amendment.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement, each Guaranty or in
any Note, certificate, instrument or other document to (a) the Credit
Agreement shall be deemed to be references to the Credit Agreement as amended
hereby and as further amended from time to time and (b) the Revolving Credit
Notes shall be deemed references to the New Notes, as amended or modified from
time to time and together with any promissory note or notes issued in exchange
or replacement therefor.
4.2 The Company agrees to pay and to save the Agent harmless
for the payment of all costs and expenses arising in connection with
this Amendment, including the reasonable fees of counsel to the Agent in
connection with preparing this Amendment and the related documents.
4.3 Except as expressly amended hereby, the Company agrees
that (a) the Credit Agreement and all other documents and agreements
executed by the Company in connection with the Credit Agreement in favor of the
Agent or the Banks are ratified and confirmed and shall remain in full force
and effect and (b) it has no set off, counterclaim, defense or other claim or
dispute with respect to any of the foregoing. Terms used but not defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
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4.4 This Amendment may be signed upon any number of
counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument, and telecopied signatures shall be
effective.
4.5 The parties hereto acknowledge and agree that the
Borrowing Base as of the date hereof, as most recently reevaluated, is
$145,300,000.
IN WITNESS WHEREOF, the parties signing this Amendment have
caused this Amendment to be executed and delivered as of the day and
year first above written, which shall be the effective date of this Amendment.
CMS NOMECO OIL & GAS CO.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Secretary
& Treasurer
NBD BANK, as a Bank and as Agent
Commitment: $48,462,000 By: /s/ Xxxxxxx X. Xxxxxx
Its: First Vice President
Pro Rata Share: 34.6157143%
BANK OF MONTREAL
Commitment: $43,077,000 By: /s/ Xxxxxx X. Xxxxxx
Its: Director
Pro Rata Share: 30.7692857%
BANQUE PARIBAS
Commitment: $26,923,000 By: /s/ Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
Its: GVP/VP
Pro Rata Share: 19.2307143%
ABN-AMRO BANK N.V., CHICAGO BRANCH
Commitment: $21,538,000 By: /s/ Xxxxxxxxx X. Xxxxxx
Its: Vice President
Pro Rata Share: 15.3842857%
And: /s/ Xxxxxx X. Xxxxxx
Its: Vice President
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CONSENT
Each of the undersigned Guarantors consents to the above Fourth
Amendment and agrees to all the terms and provisions thereof, and acknowledges
and agrees that its Guaranty shall continue in full force and effect and that
it has no set off, counterclaim, defense or other dispute thereunder.
CMS NOMECO COLOMBIA OIL COMPANY
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Secretary
& Treasurer
EXPLOTACIONES CMS NOMECO, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Secretary
& Treasurer
CMS NOMECO INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Secretary
& Treasurer
TERRA ENERGY, LTD.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President, Secretary
& Treasurer
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