FOURTEENTH AMENDMENT TO LOAN AGREEMENT
Exhibit
4(c)
FOURTEENTH
AMENDMENT TO LOAN AGREEMENT
THIS
FOURTEENTH AMENDMENT TO LOAN AGREEMENT (this “Amendment”)
dated
December ___, 2005 (the “Effective
Date”),
is
entered into by and among SERVICE TRANSPORT COMPANY, a Texas corporation
(“Service
Transport Company”),
XXXXX
RESOURCES EXPLORATION CORPORATION, a Delaware corporation (“Exploration”),
XXXXXXX MINING CORPORATION, a Kentucky corporation (“Xxxxxxx
Mining”),
CJC
LEASING, INC., a Kentucky corporation (“CJC”),
CLASSIC COAL CORPORATION, a Delaware corporation (“Classic
Coal”),
ADA
MINING CORPORATION, a Texas corporation (“Ada
Mining”),
ADA
RESOURCES, INC., a Texas corporation (“Ada
Resources”),
and
BAYOU CITY PIPELINES, INC., a Texas corporation formerly known as Bayou City
Barge Lines, Inc. (“Bayou
City”),
each
with offices and place of business at 0 Xxxx Xxx Xxxxx, 0000 Xxxx Xxx Xxxxxxx,
00xx
Xxxxx,
Xxxxxxx, Xxxxx 00000 (Service Transport Company, Exploration, Xxxxxxx Mining,
CJC, Classic Coal, Ada Mining, Ada Resources and Bayou City are hereinafter
individually called a “Borrower”
and
collectively called the “Borrowers”),
and
BANK
OF
AMERICA, N.A.,
a
national banking association (“Lender”).
Capitalized terms used but not defined in this Amendment have the meaning given
them in the Loan Agreement (defined below).
RECITALS
A. Borrowers
and Lender entered into that certain Loan Agreement dated as of October 27,
1993
(as amended by that certain First Amendment to Loan Agreement dated October
27,
1994, that certain Second Amendment to Loan Agreement dated
December 29, 1995, that certain Third Amendment to Loan Agreement
dated January 27, 1997, that certain Fourth Amendment to Loan Agreement dated
September 30, 1997, that certain Fifth Amendment to Loan Agreement dated
February 2, 1999, that certain Sixth Amendment to Loan Agreement dated October
29, 1999, that certain Seventh Amendment to Loan Agreement dated
March 22, 2000, that certain Eighth Amendment to Loan Agreement dated
October 27, 2000, that certain Ninth Amendment to Loan Agreement dated March
21,
2002, that certain Tenth Amendment to Loan Agreement dated March 27, 2003,
that
certain Eleventh Amendment to Loan Agreement dated March 16, 2004, that certain
Twelfth Amendment to Loan Agreement dated December 21, 2004, that
certain Thirteenth Amendment to Loan Agreement dated March 30, 2005,
and as amended, restated or supplemented from time to time, the “Loan
Agreement”).
B. Borrowers
and Lender have agreed to amend the Loan Agreement, subject to the terms and
conditions of this Amendment.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are acknowledged, the undersigned hereby agree as follows:
Amendments
to Loan Agreement.
The
first
sentence of Section
1.3(a) of
the
Loan Agreement is deleted in its entirety, and the following is substituted
in
its place:
“The
Lender, during the period from December 21, 2004 through
October 30, 2007, subject to the terms and conditions of this
Agreement, agrees (i) to make loans to the Borrowers pursuant to a revolving
credit and term loan facility up to but not in excess of the lesser of
$10,000,000.00 or the amount of the Tranche A Borrowing Base and (ii) to make
additional loans to the Borrowers pursuant to a revolving credit and term loan
facility up to but not in excess of the lesser of $10,000,000.00 or the amount
of the Tranche B Borrowing Base.”
The
fourth and fifth sentences of Section
1.3(b) of
the
Loan Agreement are deleted in their entirety, and the following is substituted
in their place:
“Commencing
October 31, 2007, a principal payment shall be made on each Note on the last
day
of each October, January, April and July in an amount equal to one-eighth
(1/8th)
of the
principal amount outstanding under such Note at the close of Lender’s business
on October 31, 2007. All unpaid principal and accrued and unpaid interest on
the
Notes shall be due and payable on or before October 31, 2009.”
Conditions.
This Amendment shall be effective as of the Effective Date, once each of the
following have been delivered to Lender:
this
Amendment executed by Borrowers and Lender;
Guarantor’s
Consent and Agreement;
Officer’s
Certificate from each Borrower certifying as to incumbency of officers, specimen
signatures, articles of incorporation and bylaws, and resolutions adopted by
its
Board of Directors authorizing this Amendment;
Certificates
of Existence and Good Standing of each Borrower from its jurisdiction of
incorporation;
Officer’s
Certificate from Guarantor certifying as to the incumbency of officers, specimen
signatures, its constitutional documents and resolutions adopted by the Board
of
Directors authorizing this Amendment and the increased amount of its obligations
under the Guaranty; and
such
other documents as Lender may reasonably request.
Representations
and Warranties.
Each Borrower represents and warrants to Lender that (a) it possesses all
requisite power and authority to execute, deliver and comply with the terms
of
this Amendment, (b) this Amendment has been duly authorized and approved by
all
requisite corporate action on the part of such Borrower, (c) no other consent
of
any Person (other than Lender) is required for this Amendment to be effective,
(d) the execution and delivery of this Amendment does not violate its
organizational documents, (e) the representations and warranties in the Loan
Agreement and in each other document executed by it as security for Indebtedness
(including, without limitation, the Security Instruments) are true and correct
in all material respects on and as of the date of this Amendment as though
made
on the date of this Amendment (except
to the extent that such representations and warranties speak to a specific
date), (f) it is in full compliance with all covenants and agreements contained
in the Loan Agreement and in each other document executed by it as security
for
Indebtedness (including, without limitation, the Security Instruments), and
(g)
no Default or Event of Default has occurred and is continuing. The
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment. No investigation by Lender is required
for Lender to rely on the representations and warranties in this
Amendment.
Scope
of Amendment; Reaffirmation; Release.
All references to the Loan Agreement shall refer to the Loan Agreement as
amended by this Amendment. Except as affected by this Amendment, the Loan
Agreement and Security Instruments (collectively, the “Loan
Documents”)
are unchanged and continue in full force and effect. However, in the event
of
any inconsistency between the terms of the Loan Agreement (as amended by this
Amendment) and any other Loan Document, the terms of the Loan Agreement shall
control and such other document shall be deemed to be amended to conform to
the
terms of the Loan Agreement. Each Borrower hereby reaffirms its obligations
under the Loan Documents to which it is a party and agrees that all Loan
Documents to which it is a party remain in full force and effect and continue
to
be legal, valid, and binding obligations enforceable in accordance with their
terms (as the same are affected by this Amendment). Each Borrower hereby
releases Lender from any liability for actions or omissions in connection with
the Loan Agreement and the other Loan Documents prior to the date of this
Amendment.
Miscellaneous.
No
Waiver of Defaults.
This
Amendment does not constitute (i) a waiver of, or a consent to, (A) any
provision of the Loan Agreement or any other Loan Document not expressly
referred to in this Amendment, or (B) any present or future violation of, or
default under, any provision of the Loan Documents, or (ii) a waiver of Lender’s
right to insist upon future compliance with each term, covenant, condition
and
provision of the Loan Documents.
Form.
Each
agreement, document, instrument or other writing to be furnished Lender under
any provision of this Amendment must be in form and substance satisfactory
to
Lender and its counsel.
Headings.
The
headings and captions used in this Amendment are for convenience only and will
not be deemed to limit, amplify or modify the terms of this Amendment, the
Loan
Agreement, or the other Loan Documents.
Costs,
Expenses and Attorneys’ Fees.
Borrowers agree to pay or reimburse Lender on demand for all its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation, and execution of this Amendment, including, without limitation,
the
reasonable fees and disbursements of Lender’s counsel.
Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of each of the
undersigned and their respective successors and permitted assigns.
Multiple
Counterparts.
This
Amendment may be executed in any number of counterparts with the same effect
as
if all signatories had signed the same document. All counterparts must be
construed together to constitute one and the same instrument. This Amendment
may
be transmitted and signed by facsimile. The effectiveness of any such documents
and signatures shall, subject to applicable law, have the same force and effect
as manually-signed originals and shall be binding on Borrowers and Lender.
Lender may also require that any such documents and signatures be confirmed
by a
manually-signed original; provided
that the
failure to request or deliver the same shall not limit the effectiveness of
any
facsimile document or signature.
Governing
Law.
This
Amendment and the other Loan Documents must be construed, and their performance
enforced, under Texas law.
Entirety.
The
Loan Agreement and the other Loan Documents (as amended hereby) Represent the
Final Agreement Among Borrowers and Lender and May Not Be Contradicted by
Evidence of Prior, Contemporaneous, or Subsequent Oral Agreements by the
Parties. There Are No Unwritten Oral Agreements among the
Parties.
Amendment
is executed as of the date set out in the preamble to this Amendment, but is
effective for all purposes as of the Effective Date.
|
BORROWERS:
|
|
|
SERVICE
TRANSPORT COMPANY
By:
X.
X. Xxxxxxx
Treasurer
|
CLASSIC
COAL CORPORATION
By:
X.
X. Xxxxxxx
President
and Treasurer
|
|
XXXXX
RESOURCES EXPLORATION
CORPORATION
By:
X.
X. Xxxxxxx
Treasurer
|
ADA
MINING CORPORATION
By:
X.
X. Xxxxxxx
President
and Treasurer
|
|
XXXXXXX
MINING CORPORATION
By:
X.
X. Xxxxxxx
Treasurer
|
ADA
RESOURCES INC.
By:
X.
X. Xxxxxxx
Treasurer
|
|
CJC
LEASING, INC.
By:
X.
X. Xxxxxxx
Treasurer
|
BAYOU
CITY PIPELINES, INC.
By:
X.
X. Xxxxxxx
Treasurer
|
LENDER:
BANK
OF
AMERICA, N.A., a national banking association
By:
Xxxxxxx
X. Xxxxxxxxx
Senior
Vice President
GUARANTOR’S
CONSENT AND AGREEMENT
As
an
inducement to Lender to execute, and in consideration of Lender’s execution of,
this Amendment, the undersigned hereby consents to this Amendment and agrees
that this Amendment shall in no way release, diminish, impair, reduce or
otherwise adversely affect the obligations and liabilities of the undersigned
under the Guaranty and any Security Instruments to which it is a party executed
by the undersigned in connection with the Loan Agreement, or under any Loan
Documents, agreements, documents or instruments executed by the undersigned
to
create liens, security interests or charges to secure any of the Indebtedness,
all of which are in full force and effect. The undersigned further represents
and warrants to Lender that (a) the representations and warranties in each
Loan
Document to which it is a party are true and correct in all material respects
on
and as of the date of this Amendment as though made on the date of this
Amendment (except to the extent that such representations and warranties speak
to a specific date), (b) it is in full compliance with all covenants and
agreements contained in each Loan Document to which it is a party, and (c)
no
Default or Event of Default has occurred and is continuing. Guarantor hereby
releases Lender from any liability for actions or omissions in connection with
the Loan Agreement and other Loan Documents prior to the date of this Amendment.
This Consent and Agreement shall be binding upon the undersigned, and its
permitted assigns, and shall inure to the benefit of Lender, and its successors
and assigns.
GUARANTOR:
XXXXX
RESOURCES & ENERGY, INC.
By:
X.
X.
Xxxxxxx
Vice
President - Finance
