EXHIBIT 10.3
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
made as of the 17th day of March, 1995 by and among Tide West Trading &
Transport Company, an Oklahoma corporation ("Borrower"), and Union Bank,
Den norske Bank AS and Colorado National bank, as Lenders (collectively,
"Lenders") and Union Bank, as Agent (in such capacity, "Agent"),
W I T N E S S E T H:
WHEREAS, Borrower, Lenders and Agent have entered into that certain
Credit Agreement dated as of December 20, 1993, as amended by that certain
First Amendment to Credit Agreement dated as of December 19, 1994 and that
certain Second Amendment to Credit Agreement dated as of February 17, 1995
(as so amended, the "Original Agreement") for the purposes and consideration
therein expressed, pursuant to which Lenders became obligated to make loans
to Borrower as therein provided; and
WHEREAS, Borrower, Lenders and Agent desire to amend the Original Agreement
for the purposes expressed herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
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(S) 1.1 Terms Defined in the Original Agreement. Unless the context
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otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
(S) 1.2. Other Defined Terms. Unless the context otherwise requires,
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the following terms when used in this Amendment shall have the meanings
assigned to them in this (S) 1.2.
"Amendment" means this Third Amendment to Credit Agreement.
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"Credit Agreement" means the Original Agreement as amended hereby.
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ARTICLE II.
Amendments to Original Agreement
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(S) 2.1. Defined Terms. The definition of "Maturity Date" in Section
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1.01. of the Original Agreement is hereby amended in its entirety to read
as follows:
"`Maturity Date' means April 17, 1995."
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ARTICLE III.
Effective Date; Representations and Warranties
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(S) 3.1. Effective Date. This Amendment shall become effective as of
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the date first above written when and only when Agent shall have received,
at Agent's office, a counterpart of this Amendment executed and delivered
by Borrower.
(S) 3.2. Representations and Warranties of Borrower. In order to induce
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Lenders and Agent to enter into this Amendment, Borrower represents and
warrants to Lenders and Agent that:
(a) The representations and warranties contained in Article
Five of the Original Agreement are true and correct at and as of the time
of the effectiveness hereof.
(b) Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow and to
perform its obligations under the Credit Agreement. Borrower has duly taken
all corporate action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the obligations of
Borrower hereunder.
(c) The execution and delivery by Borrower of this Amendment,
the performance by Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby do not and and will
not conflict with any provision of law, statute, rule or regulation or of
the articles of incorporation and bylaws of Borrower, or of any material
agreement, judgment, license, order or permit applicable to or binding upon
Borrower, or result in the creation of any lien, charge or encumbrance upon
any assets or properties of Borrower. Except for those which have been duly
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrower of this Amendment or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment
and the Credit Agreement will be a legal and
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binding instrument and agreement of Borrower, enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency and similar
laws applying to creditors' rights generally and by principles of equity
applying to creditors' rights generally.
(e) The audited annual Consolidated financial statements of
Guarantor dated as of December 31, 1993 and the unaudited quarterly
Consolidated financial statements of Guarantor dated as of September
30, 1994 fairly present the Consolidated financial position at such
dates and the Consolidated statement of operations and the changes in
Consolidated financial position for the periods ending on such dates
for Guarantor. Copies of such financial statements have heretofore been
delivered to Agent. Since September 30, 1994, no material adverse change
has occurred in the financial condition or businesses or in the
Consolidated financial condition or businesses of Guarantor.
ARTICLE IV.
Miscellaneous
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(S) 4.1. Ratification of Agreements. The Original Agreement as hereby
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amended is hereby ratified and confirmed in all respects. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy
of Lenders or Agent under the Credit Agreement or any other Loan Document
nor constitute a waiver of any provision of the Credit Agreement or any
other Loan Document.
(s) 4.2. Survival of Agreements. All representations, warranties,
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covenants and agreements of Borrower herein shall survive the execution
and delivery of this Amendment and the performance hereof, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by Borrower
or Guarantor hereunder or under the Credit Agreement to Lenders or Agent
shall be deemed to constitute representations and warranties by, or agreements
and covenants of, Borrower under this Amendment and under the Credit
Agreement.
(S) 4.3. Loan Documents. This Amendment are each a Loan Document, and
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all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto and thereto.
(S) 4.4. Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity
and performance.
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(S) 4.5. Counterparts. This Amendment may be separately executed in
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counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the
same Amendment.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
TIDE WEST TRADING & TRANSPORT COMPANY
By: /s/ Philip B. Smith
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Name: Philip B. Smith
Title: President
UNION BANK, as a Lender and as Agent
By: /s/ Tony R. Weber
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Name: Tony R. Weber
Title: Vice President
By: /s/ M. J. Tregoning
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Name: M. J. Tregoning
Title: SVP, Mgr.
DEN NORSKE BANK AS
By: /s/ Theodore S. Jadeck, Jr.
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Name: Theodore S. Jadeck, Jr.
Title: SVP
By: /s/ Fran Meyers
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Name: Fran Meyers
Title: Vice President
COLORADO NATIONAL BANK
By: /s/ Kathryn A. Gardner
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Name: Kathryn A. Gardner
Title: Vice President
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CONSENT AND AGREEMENT
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Tide West Oil Company, a Delaware corporation, hereby consents to the
provisions of this Amendment and the transactions contemplated herein, and
thereby ratifies and confirms the Guaranty Agreement dated as of December
20, 1993, made by it for the benefit of Lenders, and agrees that its
obligations and covenants thereunder are unimpaired hereby and shall remain
in full force and effect.
TIDE WEST OIL COMPANY
By: /s/ Philip B. Smith
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Name: Philip B. Smith
Title: President
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