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Exhibit 10.29(b)
Execution Copy
SECOND AMENDMENT TO CREDIT AGREEMENT
AND ASSUMPTION AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND ASSUMPTION
AGREEMENT, dated as of March 1, 1995 (this "Amendment"), is among CMS NOMECO
OIL & GAS CO., formerly known as NOMECO OIL & GAS CO., a Michigan corporation
(the "Company"), the banks set forth on the signature pages hereof
(collectively, the "Banks") and NBD BANK, formerly known as NBD BANK, N.A., 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, amended
by a First Amendment to Credit Agreement dated December 23, 1994 (the "Credit
Agreement").
B. The Company has requested that the Agent and the
Banks amend the Credit Agreement as set forth herein.
TERMS
In consideration of the premises and of the mutual agreements
herein contained, the parties agree as follows:
ARTICLE I. AMENDMENTS AND ADDITION OF ABN-AMRO BANK N.V., CHICAGO BRANCH.
Upon the satisfaction of the condition precedent described in Article III
hereof, the Credit Agreement shall be amended as follows:
1.1 NBD Bank, N.A. has changed its name to NBD
Bank and NOMECO Oil & Gas Co. has changed its name to CMS NOMECO Oil & Gas Co.
Accordingly, all references to NBD Bank, N.A. and NOMECO Oil & Gas Co.
contained in the Credit Agreement, the Notes and all other documents and
agreements executed in connection with the Credit Agreement shall be deemed
references to NBD Bank and CMS NOMECO Oil & Gas Co., respectively.
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1.2 ABN-AMRO Bank N.V., Chicago Branch (the "New
Bank") has agreed to become a Bank under the Credit Agreement, with its
Commitment and Pro Rata Share and address for notice as described next to its
signature below. The New Bank (i) confirms that it has received a copy of the
Credit Agreement and related documents, the First Amendment to Credit Agreement
dated December 23, 1994, together with copies of the financial statements
referred to in Section 6.6 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assumption Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent or any Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms of all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Bank; and
(v) if the New Bank is organized under the laws of a jurisdiction outside the
United States, attaches the forms prescribed by the Internal Revenue Service of
the United States certifying as to the New Bank's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to the New Bank under the Credit Agreement and the Notes or
such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty.
1.3 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 of NBD
Bank, Bank of Montreal and Banque Paribas, New York Branch as currently
described in the Credit Agreement. The New Bank shall be a Bank for all
purposes under the Credit Agreement.
1.4 Simultaneously herewith, the Company shall
deliver a Revolving Credit Note duly executed to the New Bank in the amount of
its Commitment (the "Additional Note"). All references to the Revolving Credit
Notes in the Credit Agreement and in any agreement or the document executed in
connection therewith shall be deemed references to the existing Revolving
Credit Notes and the Additional Note, as amended or modified from time to time
and together with any promissory note or notes issued in exchange or
replacement therefor.
1.5 All references to "20%" in Section 9.6(a)
shall be deleted and "15%" shall be substituted in each place thereof.
1.6 Reference in Section 10.6(i) to
"$110,000,000" shall be deleted and "$130,000,000" 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 Additional Note 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 Additional Note 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.
2.5 The most recent amendment to the Private Placement
Agreements was the Second Amendment to Note Agreements dated as of November 1,
1993, a complete copy of which was delivered to the Banks, and no further
modification or amendment thereto is currently contemplated.
2.6 Other than NOMECO Colombia Oil Company and
Explotaciones NOMECO, Inc., each of which has delivered a Guaranty, and Walter
International which will be joining in the Guaranty pursuant hereto, as the
transactions contemplated by the Purchase Documents have been completed, no
other Restricted Subsidiary is required to deliver a Guaranty pursuant to
Section 7.2(h)(ii) of the Credit Agreement.
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 Additional Note by the Company, (b) the Company shall
have executed the Additional Note, (c) Walter International shall join in the
Guaranty and deliver a board resolution to the Banks, each in form satisfactory
to the Majority Banks, (d) general counsel to the Company shall deliver a
letter to the New Bank authorizing the New Bank to rely on his opinion issued
to the Banks and (e) the Company, the Agent, the Majority Banks and the New
Bank shall execute this Amendment.
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ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any Note,
certificate, instrument or other document to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended hereby and as
further amended from time to time.
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, the Notes 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.
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.
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/ Paul E. Geiger
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Its: Vice President, Secretary
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and Treasurer
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NBD BANK, as a Bank and as Agent
Commitment: $45,000,000 By: /s/ W. Scott Bennett
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Pro Rata Share: 34.6154% Its: Vice President
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BANK OF MONTREAL
Commitment: $40,000,000 By: /s/ J. Michael Linton
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Pro Rata Share 30.7692% Its: Director
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BANQUE PARIBAS
Commitment: $25,000,000 By:/s/ Clark K. Thompson
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Pro Rata Share 19.2308% Its: Group Vice President
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135 South LaSalle Street ABN-AMRO BANK N.V.,
Chicago, Illinois 60603 CHICAGO BRANCH
Attention: James R. Morgan
Telephone No: (312) 904-5216 By: /s/ James R. Morgan
Telecopy No: (312) 606-8425 ----------------------------------
Commitment: $20,000,000
Its: Vice President
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Pro Rate Share: 15.3846%
And: /s/ John Wm. Stanger
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Its: Group Vice President
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