SIXTEENTH AMENDMENT TO LOAN AGREEMENT
Exhibit
4(c)
SIXTEENTH
AMENDMENT TO LOAN AGREEMENT
THIS
SIXTEENTH AMENDMENT TO LOAN AGREEMENT (this “Amendment”) dated
November 16, 2007 (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,
that certain Fourteenth Amendment to Loan Agreement dated December 31, 2005,
that certain Fifteenth Amendment to Loan Agreement, 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:
1. Amendments to Loan
Agreement.
(a) 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, 2009, 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.”
(b) 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, 2009, 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, 2009. All unpaid principal and accrued and unpaid
interest on the Notes shall be due and payable on or before October 31,
2011.”
2. Conditions. This
Amendment shall be effective as of the Effective Date, once each of the
following have been delivered to Lender:
(a) this
Amendment executed by Borrowers and Lender;
(b) Guarantor’s
Consent and Agreement; and
(c) such
other documents as Lender may reasonably request.
3. 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.
4. 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.
5. Miscellaneous.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) Governing
Law. This Amendment and the other Loan Documents must be
construed, and their performance enforced, under Texas law.
(h) 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.
[Signatures
appear on the next page.]
This
Amendment is executed as of the date set out in the preamble hereto, but is
effective for all purposes as of the Effective Date.
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BORROWERS:
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SERVICE
TRANSPORT COMPANY
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
Treasurer
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CLASSIC
COAL CORPORATION
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
President and
Treasurer
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XXXXX
RESOURCES EXPLORATION
CORPORATION
By:
/s/ X. X. Xxxxxxx
X. X. Xxxxxxx
Treasurer
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ADA
MINING CORPORATION
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
President and
Treasurer
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XXXXXXX
MINING CORPORATION
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
Treasurer
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ADA
RESOURCES INC.
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
Treasurer
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CJC
LEASING, INC.
By:
: /s/ X. X.
Xxxxxxx
X. X. Xxxxxxx
Treasurer
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BAYOU
CITY PIPELINES, INC.
By: /s/ X. X. Xxxxxxx
X. X. Xxxxxxx
Treasurer
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LENDER:
BANK OF
AMERICA, N.A., a national banking association
By: /s/Xxxxxxx X.
Xxxxxxxxx
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: /s/X. X.
Xxxxxxx
X. X. Xxxxxxx
Vice President -
Finance
