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Exhibit 10.20
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (herein called this
"Amendment") made as of June 23, 1999 by and between North Coast Energy, Inc., a
Delaware corporation ("Borrower"), and ING (U.S.) Capital LLC, successor in
interest to ING (U.S.) Capital Corporation, as Agent and as a Lender (herein
called "Agent"), and the other Lenders from time to time parties to the Credit
Agreement,
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain
Credit Agreement dated as of February 9, 1998 (as amended, supplemented, or
restated to the date hereof, 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, Agent, and Lenders desire to amend the Original
Agreement as provided 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
--------------------------
Section 1.1 TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the
context 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.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"AMENDMENT" means this Third Amendment to Credit Agreement.
"CREDIT AGREEMENT" means the Original Agreement as amended
hereby.
"RENEWAL NOTE" means the renewal promissory note of Borrower attached
hereto as Exhibit A.
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ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT
Section 2.1. DEFINITIONS. The definition of "Commitment Period" in
Section 1.1 of the Original Agreement is hereby amended in its entirety to read
as follows:
"COMMITMENT PERIOD" means the period from and including the
date hereof until and including July 2, 2000 (of, if earlier, the day
on which the Notes first become due and payable in full)."
Section 2.2. MANDATORY AND SCHEDULED PREPAYMENTS. Section 2.7(b) of the
Original Agreement is hereby amended in its entirety to read as follows:
"(b) At the termination of the Commitment Period, the
principal amount of the Note shall be due and payable in 20 quarterly
installments, each of which shall be equal to one-twentieth (1/20th) of
the aggregate unpaid principal balance of the Note at the end of the
Commitment Period and shall be due and payable on the last day of each
Fiscal Quarter, beginning September 30, 2000, and continuing regularly
thereafter until June 30, 2005, at which time the unpaid principal
balance of the Note and all accrued interest shall be due and payable."
Section 2.3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written when and only when (i) this
Amendment has been executed by Agent, Borrower, and the Partnerships, (ii) Agent
shall have received the Renewal Note, duly authorized, executed, and delivered
by Borrower, (iii) Agent shall have received a certificate of a duly authorized
officer of Borrower dated the date of this Amendment certifying: (A) that all of
the representations and warranties set forth in Section 2.4 hereof are true and
correct at and as of the time of such effectiveness and (B) as to such other
corporate matters as Agent shall deem necessary, and (iv) Agent shall have
additionally received such other documents as Agent may reasonably request.
Section 2.4. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Agent to enter into this Amendment, Borrower represents and warrants to
Agent that:
(a) The representations and warranties contained in Article V
of the of the Original Agreement (as amended hereby) 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 the Renewal Note 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 the Renewal
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Note and to authorize the performance of the obligations of Borrower
hereunder and thereunder.
(c) The execution and delivery by Borrower of this Amendment
and Renewal Note, the performance by Borrower of its obligations
hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby do not 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 and the Renewal Note, or to consummate the transactions
contemplated hereby and thereby.
(d) When duly executed and delivered, each of this Amendment,
the Credit Agreement, the Renewal Note, and the Security Documents will
be a legal and 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 financial statements of Borrower dated
as of December 31, 1998, fairly present the financial position at such
date and the statement of operations and the changes in financial
position for the periods ending on such date for Borrower. Copies of
such financial statements have heretofore been delivered to Agent.
Since December 31, 1998, no material adverse change has occurred in the
financial condition or businesses of Borrower.
Section 2.5. COVENANTS AND AGREEMENTS OF BORROWER. Borrower hereby (i)
covenants to execute and deliver to Agent one or more amendments to the Security
Documents in form and substance acceptable to Agent on or before July 15, 1999
reflecting the maturity date and maximum principal amount of the Loans, and (ii)
agrees that the failure to deliver to Agent such amendments on or before such
date shall constitute an Event of Default.
ARTICLE III.
MISCELLANEOUS
Section 3.1. RATIFICATION OF AGREEMENTS. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Credit Agreement in any Loan Document shall be deemed to refer to this
Amendment also. Any reference to the Note in any Loan Document shall be deemed
to be reference to the Renewal Note. The execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of Agent under the Credit Agreement or any
other Loan
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Document nor constitute a waiver of any provision of the Credit Agreement or any
other Loan Document.
Section 3.2. SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loan, 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 any Restricted Person hereunder or
under the Credit Agreement to Agent shall be deemed to constitute
representations and warranties by, or agreements and covenants of, Borrower
under this Amendment and under the Credit Agreement.
Section 3.3. LOAN DOCUMENTS. Each of this Amendment and the Renewal
Note is a Loan Document, and all provisions in the Credit Agreement pertaining
to Loan Documents apply hereto and thereto.
Section 3.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 3.5. COUNTERPARTS. This Amendment may be separately executed
in 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 AMENDMENT 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 OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
NORTH COAST ENERGY, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
ING (U.S.) CAPITAL LLC
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By:
-----------------------------
Name:
Title:
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CONSENT AND AGREEMENT
North Coast Operating Company (the "Company") and each of the
partnerships party hereto (the "Partnerships") hereby consent to the provisions
of this Amendment and the transactions contemplated herein, and agrees that the
Company's and the Partnership's obligations and covenants under the Credit
Agreement are unimpaired hereby and shall remain in full force and effect.
Date: June 23, 1999
NORTH COAST OPERATING COMPANY
By: /S/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
Capital Drilling Fund 1986-1 Limited Partnership
North Coast Energy/Capital 1987-1 Appalachian Private Drilling
Program L.P.
North Coast Energy/Capital 1987-2 Appalachian Private Drilling
Program L.P.
North Coast Energy/Capital 1988-1 Appalachian Private Drilling
Program L.P.
North Coast Energy/Capital 1988-2 Appalachian Private Drilling
Program L.P.
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North Coast Energy 1989 Appalachian Public Drilling
Program L.P.
North Coast Energy 1990-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1990-2 Appalachian Private Drilling
Program L.P.
North Coast Energy 1990-3 Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-2 Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-3 Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-2 Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-3 Appalachian Private Drilling
Program L.P.
North Coast Energy 1993-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1993-2 Appalachian Private Drilling
Program L.P.
North Coast Energy 1993-3 Appalachian Private Drilling
Program L.P.
North Coast Energy 1994-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1994-2 Appalachian Private Drilling
Program L.P.
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North Coast Energy 1994-3 Appalachian Private Drilling
Program L.P.
North Coast Energy 1995-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1995-2 Appalachian Private Drilling
Program L.P.
North Coast Energy 1996-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1996-2 Appalachian Private Drilling
Program L.P.
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North Coast Energy 1997-1 Appalachian Private Drilling
Program L.P.
North Coast Energy 1997-2 Appalachian Private Drilling
Program L.P.
By: NORTH COAST ENERGY, INC., general partner
By: /S/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: President
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EXHIBIT A
PROMISSORY NOTE
$25,000,000 New York, New York June 23, 1999
FOR VALUE RECEIVED, the undersigned, North Coast Energy, Inc., a
Delaware (herein called "Borrower"), hereby promises to pay to the order of ING
(U.S.) Capital LLC (herein called "Lender"), the principal sum of Twenty Five
Million and No/100 Dollars ($25,000,000), or, if greater or less, the aggregate
unpaid principal amount of the Loan made under this Note by Lender to Borrower
pursuant to the terms of the Credit Agreement (as hereinafter defined), together
with interest on the unpaid principal balance thereof as hereinafter set forth,
both principal and interest payable as herein provided in lawful money of the
United States of America at the offices of the Agent under the Credit Agreement,
as from time to time may be designated by the holder of this Note.
This Note (a) is issued and delivered under that certain Credit
Agreement dated as of February 9, 1998 among Borrower, Lender, as Agent, and the
lenders (including Lender) referred to therein (herein, as from time to time
supplemented, amended or restated, called the "Credit Agreement"), and is a
"Note" as defined therein, (b) is subject to the terms and provisions of the
Credit Agreement, which contains provisions for payments and prepayments
hereunder and acceleration of the maturity hereof upon the happening of certain
stated events, and (c) is secured by and entitled to the benefits of certain
Security Documents (as identified and defined in the Credit Agreement). Payments
on this Note shall be made and applied as provided herein and in the Credit
Agreement. Reference is hereby made to the Credit Agreement for a description of
certain rights, limitations of rights, obligations and duties of the parties
hereto and for the meanings assigned to terms used and not defined herein and to
the Security Documents for a description of the nature and extent of the
security thereby provided and the rights of the parties thereto.
For the purposes of this Note, the following terms have the meanings
assigned to them below:
"Base Rate Payment Date" means (i) the last day of each Fiscal Quarter,
beginning September 30, 2000, and (ii) any day on which past due interest or
principal is owed hereunder and is unpaid. If the terms hereof or of the Credit
Agreement provide that payments of interest or principal hereon shall be
deferred from one Base Rate Payment Date to another day, such other day shall
also be a Base Rate Payment Date.
"Eurodollar Rate Payment Date" means, with respect to any Eurodollar
Loan: (i) the day on which the related Interest Period ends (and, if such
Interest Period is three months or longer, the three-month anniversary of the
first day of such Interest Period), and (ii) any day on which past due interest
or past due principal is owed hereunder with respect to such Eurodollar Loan and
is unpaid. If the terms hereof or of the Credit Agreement provide that payments
of interest
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or principal with respect to such Eurodollar Loan shall be deferred from one
Eurodollar Rate Payment Date to another day, such other day shall also be a
Eurodollar Rate Payment Date.
The principal amount of this Note shall be due and payable in 20
quarterly installments, each of which shall be equal to one-twentieth (1/20th)
of the aggregate unpaid principal balance of this Note at the end of the
Commitment Period and shall be due and payable on the last day of each Fiscal
Quarter, beginning September 30, 2000, and continuing regularly thereafter until
June 30, 2005, at which time the unpaid principal balance of this Note and all
accrued interest hereon shall be due and payable.
Base Rate Loans from time to time outstanding shall bear interest on
each day outstanding at the Base Rate in effect on such day; unless the Default
Rate shall apply as provided below. On each Base Rate Payment Date Borrower
shall pay to the holder hereof all unpaid interest which has accrued on the Base
Rate Loans to but not including such Base Rate Payment Date. Each Eurodollar
Loan shall bear interest on each day during the related Interest Period at the
related Eurodollar Rate in effect on such day; unless the Default Rate shall
apply as provided below. On each Eurodollar Rate Payment Date relating to such
Eurodollar Loan, Borrower shall pay to the holder hereof all unpaid interest
which has accrued on such Eurodollar Loan to but not including such Eurodollar
Rate Payment Date. All past due principal of and past due interest on the Loan
shall bear interest on each day outstanding at the Default Rate in effect on
such day, notwithstanding the foregoing provisions of this paragraph, on or
after ten days following the occurrence of an Event of Default, and during the
continuance thereof, each Loan shall bear interest at the Default Rate. All
interest at the Default Rate shall be due and payable daily as it accrues.
Notwithstanding the foregoing provisions of this paragraph: (a) this Note shall
never bear interest in excess of the Highest Lawful Rate, and (b) if at any time
the rate at which interest is payable on this Note is limited by the Highest
Lawful Rate (by the foregoing clause (a) or by reference to the Highest Lawful
Rate in the definitions of Base Rate, Eurodollar Rate, and Late Payment Rate),
this Note shall bear interest at the Highest Lawful Rate and shall continue to
bear interest at the Highest Lawful Rate until such time as the total amount of
interest accrued hereon equals (but does not exceed) the total amount of
interest which would have accrued hereon had there been no Highest Lawful Rate
applicable hereto.
Notwithstanding the foregoing paragraph and all other provisions of this
Note, in no event shall the interest payable hereon, whether before or after
maturity, exceed the maximum interest which, under applicable Law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
If this Note is placed in the hands of an attorney for collection after
default, or if all or any part of the indebtedness represented hereby is proved,
established or collected in any court or in any bankruptcy, receivership, debtor
relief, probate or other court proceedings, Borrower and all endorsers, sureties
and guarantors of this Note jointly and severally agree to pay reasonable
attorneys' fees and collection costs to the holder hereof in addition to the
principal and interest payable hereunder.
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Borrower and all endorsers, sureties and guarantors of this Note hereby
severally waive demand, presentment, notice of demand and of dishonor and
nonpayment of this Note, protest, notice of protest, notice of intention to
accelerate the maturity of this Note, declaration or notice of acceleration of
the maturity of this Note, diligence in collecting, the bringing of any suit
against any party and any notice of or defense on account of any extensions,
renewals, partial payments or changes in any manner of or in this Note or in any
of its terms, provisions and covenants, or any releases or substitutions of any
security, or any delay, indulgence or other act of any trustee or any holder
hereof, whether before or after maturity.
This Note is given in renewal and extension, but not in novation or
extinguishment, of that certain Promissory Note of Borrower to the order of
Lender in the original principal amount of $25,000,000 dated as of May 29, 1998.
THIS NOTE AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW), EXCEPT TO THE EXTENT THE SAME ARE GOVERNED BY APPLICABLE
FEDERAL LAW.
NORTH COAST ENERGY, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
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