TWELFTH AMENDMENT TO LOAN AGREEMENT
Exhibit
4(c)
TWELFTH
AMENDMENT TO LOAN AGREEMENT
THIS
TWELFTH AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is
entered into as of December 21, 2004 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, 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
definition of “Tranche B Note” in Section
1.2(a) of the
Loan Agreement is deleted in its entirety, and the following is substituted in
its place:
“Tranche
B Note” shall mean the Promissory Note of the Borrowers in the original
principal amount of $10,000,000.00, issued pursuant to Section
1.3 of this
Agreement in the form attached as Exhibit “A-2” to the Twelfth Amendment dated
December 21, 2004, by and among the Borrowers and Lender.”
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, 2006,
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, 2006, 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, 2006. All unpaid principal and accrued and unpaid interest on the
Notes shall be due and payable on or before October 31, 2008.”
Exhibits.
Exhibit
“A-2” (Promissory Note) to the Loan Agreement is hereby deleted in its entirety
and replaced with the Exhibit “A-2” to this Amendment.
Conditions.
This
Amendment shall be effective 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.
The
Amendment is executed as of the date set out in the preamble to this
Amendment.
BORROWERS:
SERVICE
TRANSPORT COMPANY
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
XXXXX
RESOURCES EXPLORATION
CORPORATION
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
XXXXXXX
MINING CORPORATION
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
CJC
LEASING, INC.
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
CLASSIC
COAL CORPORATION
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: President
and Treasurer
ADA
MINING CORPORATION
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: President
and Treasurer
ADA
RESOURCES, INC.
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
BAYOU
CITY PIPELINES, INC.
By: /s/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Treasurer
LENDER:
BANK OF
AMERICA, N.A., a national banking association
By: /s/Xxxxxxx
X. Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Title: 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/Xxxxxxx
X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Vice
President - Finance
