Exhibit 10.3
AMENDMENT AND CONSENT TO AMENDED AND RESTATED
SHORT TERM REVOLVING CREDIT AGREEMENT
AMENDMENT AND CONSENT TO AMENDED AND RESTATED SHORT TERM REVOLVING CREDIT
AGREEMENT, dated as of May 31, 2000, among XXXXXX XXXXXXX CORPORATION (herein
referred to as the "BORROWER"), the guarantors party hereto (the "GUARANTORS"),
the lenders party hereto (each a "LENDER" and collectively, the "LENDERS"), BANK
OF AMERICA, N. A., in its capacity as administrative agent for the Lenders (in
such capacity, the "ADMINISTRATIVE AGENT"), and FIRST UNION NATIONAL BANK, as
Syndication Agent and ABN AMRO BANK N.V., as Documentation Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, the Syndication Agent and the Documentation Agent are parties to that
certain Amended and Restated Short Term Revolving Credit Agreement, dated as of
December 1, 1999 (the "CREDIT AGREEMENT"); and
WHEREAS, the Borrower and the Guarantors have requested that the Credit
Agreement be amended in certain respects; and
WHEREAS, the Borrower has also requested, as permitted under Section 2.18
of the Credit Agreement, that the Lenders consent to an extension of the
Revolving Credit Maturity Date for an additional 364 day period after which the
then effective Revolving Credit Maturity Date shall be May 30, 2001 (the
"EXTENSION") and waive certain provisions applicable thereto; and
WHEREAS, the undersigned Lenders and the Agents party hereto are willing
to so amend the Credit Agreement and consent to the Extension, subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
thereby, covenant and agree as follows:
1. GENERAL. All terms used herein which are not otherwise specifically
defined herein shall have the same meaning herein as defined in the Credit
Agreement as further amended hereby.
2. EXTENSION CONSENT. As permitted under Section 2.18 of the Credit
Agreement, the undersigned Lenders do hereby consent to the Extension, and this
consent shall constitute notice by the undersigned Lenders of their consent as
required by Section 2.18 of the Credit Agreement.
3. WAIVER. The Borrower and the undersigned Lenders do hereby waive the 30
day and 27 day prior notice provisions in the fourth sentence of Section 2.18
with regard to the Extension.
4. PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS. Section 2.15 of the
Credit Agreement shall be and is hereby amended by adding in the appropriate
alphabetical order a new subsection as follows:
"(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and
the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that
the Borrower shall not have so made such payment, each Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to the Administrative Agent,
at the Federal Funds Effective Rate."
5. ASSIGNMENTS. Section 10.14 of the Credit Agreement shall be and is
hereby amended by deleting the language of subsection (c)(v) thereto and
inserting the following language in its place:
"to the extent the Other Credit Agreement is in effect, the
assigning Lender, to the extent such Lender has a commitment under
the Other Credit Agreement, shall assign the same percentage of its
"Commitment" under the Other Credit Agreement concurrently with such
assignment."
6. REPRESENTATIONS. In order to induce the Lenders to execute and deliver
this Amendment, the Borrower hereby represents to the Lenders that as of the
date hereof the representations and warranties set forth in Article III of the
Credit Agreement are and shall be and remain true and correct (except that the
representations contained in Section 3.06 shall be deemed to refer to the most
recent financial statements of the Borrower delivered to the Lenders) and the
Borrower is in compliance with the terms and conditions of the Credit Agreement
and no Default or Event of Default has occurred and is continuing under the
Credit Agreement or shall result after giving effect to this Amendment.
7. EFFECTIVENESS. This Amendment and Consent shall become effective (i)
when it shall be executed by the Borrower and those Lenders with an aggregate
Revolving Credit Commitment Amount equal to or exceeding 85% of the Total
Revolving Credit Commitment in effect as of the 10th day prior to the current
Revolving Credit Maturity Date, (ii) each Guarantor shall have executed and
delivered to the Lenders their consent to this Amendment in the form set forth
below and (iii) the Administrative Agent shall have received copies (executed or
certified, as may be appropriate) of all legal documents or proceedings taken in
connection with the
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execution and delivery of this Amendment to the extent the Administrative Agent
or its counsel may reasonably request. This Amendment and Consent may be
executed in separate counterparts, all of which taken together shall constitute
one and the same instrument. This agreement shall be construed and determined in
accordance with the laws of the State of New York. Except as herein specifically
amended, the Credit Agreement shall be and remain in full force and effect and
wherever reference is made in any note, document, letter or other communication
to the Credit Agreement, such reference shall, without more, be deemed to refer
to the Credit Agreement as amended hereby. The consent and waiver provided in
paragraphs 2 and 3 hereof shall be limited specifically as provided for therein
and this Amendment and Consent shall not constitute a consent to any other
transaction or waiver of the application of the Sections of the Credit Agreement
referred to in paragraphs 2 and 3 hereof to any other transaction nor shall it
be a waiver or modification of any other term, provision or condition of the
Credit Agreement or waiver of any Default or Event of Default except as
expressly set forth herein and shall not prejudice or be deemed to prejudice any
right that the Agent or any Lender may now have or may have in the future under
the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: XXXXXX XXXXXXX CORPORATION, as Borrower
By By
---------------------------- -------------------------------------
Title: Title:
XXXXXX XXXXXXX USA
Corporation, as Guarantor
By
Title:
XXXXXX XXXXXXX ENERGY
INTERNATIONAL, INC., as
Guarantor
By
Title:
XXXXXX XXXXXXX ENERGY
CORPORATION, as Guarantor
By
Title:
BANK OF AMERICA, N.A., individually and as
Administrative Agent
By
Title:
FIRST UNION NATIONAL BANK,
individually and as
Syndication Agent
By
Title:
ABN AMRO BANK N.V.,
individually and as
Documentation Agent
By
Title:
By
Title:
TORONTO DOMINION (TEXAS), INC.
By
Title:
NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH
By
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By
Title:
THE BANK OF NOVA SCOTIA
By
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By
Title:
CITIBANK, N.A.
By
Title:
PARIBAS
By
Title:
PNC BANK, NATIONAL ASSOCIATION
By
Title:
SOCIETE GENERALE, NEW YORK
BRANCH
By
Title:
GUARANTORS' ACKNOWLEDGEMENT AND CONSENT
The undersigned, Xxxxxx Xxxxxxx USA Corporation, Xxxxxx Xxxxxxx Energy
International, Inc. and Xxxxxx Xxxxxxx Energy Corporation, heretofore, under
Article IX of the Credit Agreement, guaranteed any and all of the Guaranteed
Obligations to the Creditors. The undersigned hereby consent to the Amendment to
the Credit Agreement as set forth above and confirm that all of the undersigned
obligations under the Credit Agreement remain in full force and effect. The
undersigned further agree that the consent of the undersigned to any further
amendments to the Credit Agreement shall not be required as a result of this
consent having been obtained, except to the extent, if any, required by the
Credit Agreement.
XXXXXX XXXXXXX USA Corporation, as
Guarantor
By
Title:
XXXXXX XXXXXXX ENERGY INTERNATIONAL,
INC., as Guarantor
By
Title:
XXXXXX XXXXXXX ENERGY CORPORATION, as
Guarantor
By
Title:
