FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
FOURTH
AMENDMENT TO AMENDED AND RESTATED
This
Fourth Amendment to Amended and Restated Loan Agreement (this “Fourth
Amendment”) is entered into as of the 29th day of March, 2006, to be effective
as of June 30, 2005 (the “Effective Date”) by and among THREE
D OIL CO. OF XXXXXXX, INC.,
a Texas
corporation (“Borrower”), UNITED
FUEL & ENERGY CORPORATION,
a Texas
corporation (“United” or a “Guarantor”), XXXXXX
X. XXXXX,
an
individual residing in Midland County, Texas (“Xxxxx” or a “Guarantor”) (United
and Xxxxx are collectively referred to herein as “Guarantors”), and CITIBANK
TEXAS, N.A., a
national banking association, formerly known as First American Bank, SSB
(“Lender”).
RECITALS:
A. Borrower,
Guarantors and Lender entered into that certain Amended and Restated Loan
Agreement dated as of October 10, 2003, as amended by First Amendment to Amended
and Restated Loan Agreement and Consent dated as of July 14, 2004, by Second
Amendment to Amended and Restated Loan Agreement and Consent dated August 6,
2004, and by Third Amendment to Amended and Restated Loan Agreement dated
October 10, 2004 (the “Loan Agreement”).
B. Pursuant
to the terms of the Loan Agreement, Borrower executed that certain Term Note
dated October 10, 2003, in the original principal amount of $1,500,000, payable
to the order of Lender (the “Term Note”).
C. Borrower
and Guarantors have requested that Lender amend certain provisions of the Loan
Agreement, which Lender has agreed to do subject to the terms and conditions
contained herein.
NOW
THEREFORE, in consideration of the premises and the mutual covenants herein
contained and other good and valuable consideration, it is hereby agreed between
Lender, Borrower and Guarantors as follows:
Agreement
1. Definitions.
Except
as otherwise expressly provided herein, all capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in the Loan
Agreement.
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2. Amendment
to Loan Agreement.
Effective as of the Effective Date, Section 7.13 of the Loan Agreement (Debt
Service Coverage Ratio) is hereby amended in its entirety to read as
follows:
7.13 Debt
Service Coverage Ratio.
Borrower will not permit its Debt Service Coverage Ratio to be less than 1.25
to
1.0 as of the last day of any fiscal quarter of Borrower ending on or after
September 30, 2006.
3. Conditions
Precedent.
The
effectiveness of this Fourth Amendment shall be subject to the satisfaction
of
each of the following conditions precedent:
(a) Borrower
and Guarantors shall have executed and delivered to Lender this Fourth Amendment
and all other required documents, all in form and substance satisfactory to
Lender;
(b) CIT
shall
have waived its right under Section 14 of the Intercreditor Agreement to receive
a copy of this Fourth Amendment at least ten (10) days prior to the execution
thereof; and
(c) The
Boards of Directors of Borrower and United shall have approved the execution,
delivery and performance of this Fourth Amendment and all other required
documents by resolutions satisfactory to Lender and its counsel, and appropriate
certificates as to such actions, showing the parties authorized to execute
the
same and all items required herein, shall have been delivered to
Lender.
4. Representations.
As an
inducement to Lender to enter into this Fourth Amendment, Borrower and
Guarantors jointly and severally represent and warrant to Lender that (i) the
representations and warranties contained in the Loan Agreement are true and
correct as of the execution date hereof, (ii) neither Borrower nor Guarantors
have breached any of the covenants contained in the Loan Agreement or the other
Loan Papers (except as may have been waived in writing by Lender), and (iii)
no
Event of Default now exists, nor does there exist any condition or event which,
with notice and/or lapse of time, would constitute an Event of
Default.
5. No
Waiver.
Neither
the execution by Lender of this Fourth Amendment nor anything contained herein
shall in anywise be construed or operate as a waiver by Lender of any Event
of
Default (whether now existing or that may occur hereafter) or any of Lender's
rights under the Loan Agreement, as hereby amended, or under any of the other
Loan Papers.
6. Ratification.
Except
as provided herein, all terms and provisions of the Loan Agreement shall remain
unchanged. Borrower and Guarantors hereby ratify, affirm and reaffirm all of
the
terms and provisions of the Loan Agreement as amended hereby, of the Term Note,
of the Guaranties, of the Security Documents and of the other Loan Papers,
in
each case to the extent such party is a party thereto.
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7. Governing
Law.
This
Fourth Amendment is being executed and delivered, and is intended to be
performed, in the State of Texas, and the substantive laws of the State of
Texas
shall govern the validity, construction, enforcement and interpretation of
this
Fourth Amendment and all other documents and instruments referred to herein,
unless otherwise specified therein.
8. Final
Agreement.
THIS
FOURTH AMENDMENT AND THE OTHER LOAN PAPERS 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.
9. Counterparts.
This
Fourth Amendment may be executed in any number of separate counterparts
(including by facsimile transmission), each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
instrument.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED
effective as of the Effective Date.
|
BORROWER:
|
THREE D OIL CO. OF XXXXXXX, INC. | |
| |
|
|
| By: | /s/ Xxxxx X. Page | |
|
Xxxxx X. Page |
||
| Vice President and Chief Financial Officer | ||
|
GUARANTORS:
|
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
XXXXXX X. XXXXX |
||
| UNITED FUEL & ENERGY CORPORATION | ||
| |
|
|
| By: | /s/ Xxxxx X. Page | |
|
Xxxxx X. Page |
||
| Vice President and Chief Financial Officer | ||
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