EXHIBIT 4 (c)
TENTH AMENDMENT TO LOAN AGREEMENT
THIS TENTH AMENDMENT TO LOAN AGREEMENT (this "Tenth Amendment") is made
and entered into as of the 17th day of March, 2003, 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 and Bayou City are hereinafter individually called a "Borrower"
and collectively called the "Borrowers"), and BANK OF AMERICA, N.A., a national
banking association (the "Lender"), successor in interest by merger to
NationsBank, N.A. ("NationsBank"), which had changed its name to Bank of
America, N.A., and which was the successor in interest by merger to NationsBank
of Texas, N.A. (the "Original Lender").
WHEREAS, the Borrowers and Ada Crude Oil Company ("Ada Crude Oil")
(collectively referred to as the "Original Borrowers") and the Original Lender
entered into that certain Loan Agreement dated October 27, 1993, which Loan
Agreement was amended by that certain First Amendment to Loan Agreement dated
October 27, 1994 among the Original Borrowers and the Original Lender, that
certain Second Amendment to Loan Agreement dated December 29, 1995 among the
Original Borrowers and the Original Lender, that certain Third Amendment to Loan
Agreement dated January 27, 1997 among the Original Borrowers and the Original
Lender and that certain Fourth Amendment to Loan Agreement (the "Fourth
Amendment") dated September 30, 1997 among the Original Borrowers and the
Original Lender (as amended, the "Original Loan Agreement"); and
WHEREAS, the Borrowers (other than Ada Resources) and NationsBank
entered into that certain Fifth Amendment to Loan Agreement dated February 2,
1999, and the Borrowers (other than Ada Resources) and Lender entered into that
certain Sixth Amendment to Loan Agreement dated October 29, 1999; and
WHEREAS, the Borrowers and the Lender entered into that certain Seventh
Amendment to Loan Agreement dated March 22, 2000 (the "Seventh Amendment"), that
certain Eighth Amendment to Loan Agreement dated October 27, 2000 (the "Eighth
Amendment") and that certain Ninth Amendment to Loan Agreement dated March 21,
2002 (the Original Loan Agreement, as amended by the Fifth Amendment, the Sixth
Amendment, the Seventh Amendment, the Eighth Amendment and the Ninth Amendment,
is referred to herein as the "Loan Agreement"); and
WHEREAS, due to the assignment of the assets and assumption of
liabilities of Ada Crude Oil, it is no longer a party under the Loan Agreement;
and
WHEREAS, the Borrowers and the Lender desire to make certain amendments
to the terms and provisions of the Loan Agreement, as set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
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1. 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 the date of the Tenth Amendment
through October 29, 2004, 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 $7,500,000.00 or the amount of the Tranche B Borrowing Base.
2. 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, 2004, a principal payment shall 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 29, 2004.
All unpaid principal and accrued and unpaid interest on the Notes shall
be due and payable on or before October 29, 2006.
3. The closing of the transactions contemplated by this Tenth Amendment is
subject to the satisfaction of the following conditions:
(a) All legal matters incident to the transactions
herein contemplated shall be satisfactory to Gardere Xxxxx Xxxxxx LLP,
counsel to the Lender;
(b) The Lender shall have received a fully executed copy
of this Tenth Amendment and a Notice as to Written
Agreement; and
(c) The lender shall have received an executed copy of
resolutions of the Board of Directors of each of the Borrowers and the
Guarantor, in form and substance satisfactory to the Lender,
authorizing the execution, delivery and performance of this Tenth
Amendment and all documents, instruments and certificates referred to
herein.
4. Each of the Borrowers hereby reaffirms each of its representations,
warranties, covenants and agreements set forth in the Loan Agreement with the
same force and effect as if each were separately stated herein and made as of
the date hereof. Except as amended hereby, the Loan Agreement shall remain
unchanged, and the terms, conditions and covenants of the Loan Agreement shall
continue and be binding upon the parties hereto.
5. Each of the Borrowers hereby agrees that its liability under any and
all documents and instruments executed by it as security for the Indebtedness
(including, without limitation, the Mortgages, the Security Agreements, the
Collateral Assignment and the Pledges) shall not be reduced, altered, limited,
lessened or in any way affected by the execution and delivery of this Tenth
Amendment or any of the instruments or documents referred to herein, except as
specifically set forth herein or therein, that all of such documents and
instruments are hereby renewed, extended, ratified, confirmed and carried
forward by the Borrowers in all respects, that all of such documents and
instruments shall remain in full force and effect and are and shall remain
enforceable against the Borrowers in accordance with their terms and that all of
such documents and instruments shall cover all indebtedness of the Borrowers to
the Lender described in the Loan Agreement as amended hereby.
6. Each of the terms defined in the Loan Agreement is used in this Tenth
Amendment with the same meaning, except as otherwise indicated in this Tenth
Amendment. Each of the terms defined in this Tenth Amendment is used in the Loan
Agreement with the same meaning, except as otherwise indicated in the Loan
Agreement.
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7. THIS TENTH AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER, SUBJECT
TO, AND SHALL BE CONSTRUED FOR ALL PURPOSES IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
8. THE LOAN AGREEMENT, AS AMENDED, REPRESENTS 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.
IN WITNESS WHEREOF, the parties have caused this Tenth Amendment to be
executed by their duly authorized officers as of the day and year first above
written.
SERVICE TRANSPORT COMPANY
By:______________________________
Name:_________________________
Title:________________________
XXXXX RESOURCES EXPLORATION
CORPORATION
By:______________________________
Name:_________________________
Title:________________________
XXXXXXX MINING CORPORATION
By:______________________________
Name:_________________________
Title:________________________
CJC LEASING, INC.
By:______________________________
Name:_________________________
Title:________________________
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CLASSIC COAL CORPORATION
By:______________________________
Name:_________________________
Title:________________________
ADA MINING CORPORATION
By:______________________________
Name:_________________________
Title:________________________
ADA RESOURCES, INC.
By:______________________________
Name:_________________________
Title:________________________
BAYOU CITY PIPELINES, INC.
By:______________________________
Name:_________________________
Title:________________________
BANK OF AMERICA, N.A.
By:______________________________
Name:_________________________
Title:________________________
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Guarantor joins in the execution of this Tenth Amendment to evidence
that it hereby agrees and consents to all of the matters contained in this Tenth
Amendment and further agrees that (i) its liability under that certain Guaranty
Agreement dated October 27, 1993, executed by Guarantor for the benefit of the
Lender, as the same may be amended or modified from time to time (the
"Guaranty") shall not be reduced, altered, limited, lessened or in any way
affected by the execution and delivery of this Tenth Amendment or any of the
instruments or documents referred to herein by the parties hereto, except as
specifically set forth herein or therein, (ii) the Guaranty is hereby renewed,
extended, ratified, confirmed and carried forward in all respects, (iii) the
Guaranty is and shall remain in full force and effect and is and shall remain
enforceable against Guarantor in accordance with its terms and (iv) the Guaranty
shall cover all indebtedness of the Borrowers to the Lender described in the
Loan Agreement as amended hereby.
XXXXX RESOURCES & ENERGY, INC.
By:______________________________
Name:_________________________
Title:________________________
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