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Exhibit 4(c)
FIRST AMENDMENT
FIRST AMENDMENT, dated as of January 31, 1997 (this "Amendment"), to
the Credit and Reimbursement Agreement, dated as of April 8, 1996 (the "Credit
Agreement"), among (a) XXXXXXXX ENERGY CORPORATION, a Delaware corporation (the
"Borrower"), (b) MND ENERGY CORPORATION, a Delaware corporation ("MND"), (c) the
several banks which are parties to this Amendment (collectively, the "Banks",
each a "Bank"), including the Issuing Banks (as defined herein), and (d) THE
CHASE MANHATTAN BANK (formerly known as Chemical Bank), a New York banking
corporation, as administrative agent for the Banks (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that certain amendments
be made to the Credit Agreement as provided herein; and
WHEREAS, the Administrative Agent and the Banks are willing to effect
such amendments, but only on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the
Credit Agreement.
II. Amendments to Credit Agreement; Consent to First
Amendment to MND Revolving Credit Agreement.
1. Consolidated Net Current Assets. (a) Subsection 1.1 of
the Credit Agreement is hereby amended by deleting the
definitions of "Consolidated Current Assets", "Consolidated
Current Liabilities", "Current Assets" and "Current Liabilities"
in their entirety;
(b) Subsection 5.2(a)(ii) of the Credit Agreement is
hereby amended by deleting it in its entirety and inserting in
lieu thereof;
"'(ii) [Reserved]';"; and
(c) Subsection 6.5 of the Credit Agreement is hereby amended
by deleting it in its entirety and inserting in lieu thereof:
"'6.5 [Reserved]'."
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2. Fixed Charge Ratio. Subsection 6.8 of the Credit
Agreement is hereby amended by deleting the ratio "1.5 to 1"
contained therein and inserting in lieu thereof the ratio "2.5 to
1."
3. For purposes of subsection 1.4 of the Credit Agreement, each Bank
consents to the amendment of the MND Revolving Credit Agreement effected by the
First Amendment thereto, dated as of the date hereof.
III. Conditions to Effectiveness. This Amendment shall
become effective as of January 31, 1997 (the "Effective Date")
but shall not become effective until the following conditions
precedent have been satisfied or waived:
(a) The Borrower, MND, the Administrative Agent and the
Required Banks shall have executed and delivered to the Administrative
Agent this Amendment.
(b) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Borrower and MND authorizing
the execution, delivery and performance of this Amendment and the
transactions contemplated hereby, certified by the Secretary or an
Assistant Secretary of such Credit Party as of the Effective Date,
which certificate shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded as of the date of
such certificate.
IV. General.
1. Representations and Warranties. To induce the Administrative Agent
and the Banks parties hereto to enter into this Amendment, the Borrower and MND
each hereby represents and warrants to the Administrative Agent and all of the
Banks as of the Effective Date that the representations and warranties made by
such party in the Credit Documents to which it is a party are true and correct
in all material respects on and as of the Effective Date, after giving effect to
the effectiveness of this Amendment, as if made on and as of the Effective Date.
2. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
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3. No Other Amendments; Confirmation. Except as expressly
amended, modified and supplemented hereby, the provisions of the
Credit Agreement and the other Credit Documents are and shall
remain in full force and effect.
4. Affirmation of MEDC Guarantee. MEDC hereby consents to
the execution and delivery of this Amendment and reaffirms its
obligations under the MEDC Guarantee.
5. Governing Law; Counterparts. (a) THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Administrative Agent. This Amendment may be delivered
by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
XXXXXXXX ENERGY CORPORATION
By:_________________________________
Title:
MND ENERGY CORPORATION
By:_________________________________
Title:
THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), as Administrative Agent,
as an Issuing Bank and as a Bank
By:_________________________________
Title:
NATIONSBANK OF TEXAS, N.A., as an
Issuing Bank and as a Bank
By:_________________________________
Title:
THE BANK OF NOVA SCOTIA
By:_________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
Title:
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XXXX XXX, XXXXX, N.A.
By:_________________________________
Title:
BANK OF AMERICA, NATIONAL TRUST &
SAVINGS ASSOCIATION
By:_________________________________
Title:
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:_________________________________
Title:
CHRISTIANIA BANK OG KREDITKASSE
By:_________________________________
Title:
By:_________________________________
Title:
XXXXXX GUARANTY TRUST COMPANY
By:_________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:_________________________________
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:_________________________________
Title:
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ABN AMRO BANK N.V., HOUSTON AGENCY
by: ABN AMRO North America,
Inc., as agent
By:_________________________________
Title:
By:_________________________________
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:_________________________________
Title:
THE LONG TERM CREDIT BANK
OF JAPAN, LTD., NEW YORK BRANCH
By:_________________________________
Title:
UNION BANK OF SWITZERLAND, HOUSTON
AGENCY
By:__________________________________
Title:
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Consented and agreed to:
XXXXXXXX ENERGY & DEVELOPMENT CORP.
By:_________________________________
Title:
