Contract
Exhibit
10.39
FOURTH
AMENDMENT TO NOTE PURCHASE AGREEMENT
This
Fourth Amendment to Note Purchase Agreement (the “Amendment”)
is
entered into by and among Xxxx Resources, a Delaware limited partnership
(“Borrower”),
Xxxx
Xxxxxxx Life Insurance Company, a Massachusetts corporation, and Xxxx Xxxxxxx
Variable Life Insurance Company, a Massachusetts corporation (Xxxx Xxxxxxx
Life
Insurance Company and Xxxx Xxxxxxx Variable Life Insurance Company are
individually and collectively referred to herein as “Note
Holders”).
RECITALS
Borrower
and Note Holders entered into that certain Note Purchase Agreement dated
March
29, 2001, as amended by First Amendment to Note Purchase Agreement dated
October
24, 2001, Second Amendment to Note Purchase Agreement dated August 8, 2003,
and
Third Amendment to Note Purchase Agreement dated March 24, 2004, which
superseded and replaced all prior amendments to such Note Purchase Agreement
(such Note Purchase Agreement, as previously amended and as amended herein
is
referred to as the "Agreement"),
in
connection with the sale and purchase of certain Class A Fixed Rate Senior
Secured Notes all dated March 29, 2001, in the aggregate principal amount
of
$30,000,000. Borrower and Note Holders wish to further amend the Agreement
in
certain respects. Unless otherwise indicated all capitalized terms in this
Amendment shall have the meanings attributed to them in the Agreement.
NOW,
THEREFORE, the parties agree as follows:
1. Section
8.2(ii) of
the
Agreement is hereby amended to read as follows: “(ii) Debt under that certain
Loan Agreement dated as of October 26, 2004, by and between Borrower and
Bank of
America in connection with a $10 million line of credit facility and all
other
Debt outstanding as the Closing Date, and any refinancings, refundings,
renewals, replacements or extensions thereof, provided
that the
amount of such Debt is not increased at the time of such refinancing, refunding,
renewal, replacement or extension except by an amount equal to the premium
or
other amounts paid, and fees and expenses incurred, in connection with such
refinancing and by an amount equal to any unutilized commitments
thereunder;”
2. Section
8.5 of
the
Agreement is hereby deleted in its entirety.
3. The
following Section
8.16
is
hereby added to the Agreement: “8.16 Loan
to Value Ratio.
Notwithstanding anything herein to the contrary, permit the Loan to Value
Ratio
to exceed fifty percent (50%). If at any time the Loan to Value Ratio exceeds
fifty percent (50%), Borrower shall deposit funds into the Collateral Account
sufficient to reduce the Loan to Value Ratio to 50% or less.”
4. As
amended herein, the Agreement is hereby confirmed and reaffirmed by Borrower
and
Note Holders and shall remain in full force and effect.
[Remainder
of page left intentionally blank]
IN
WITNESS WHEREOF, Borrower and Note Holders have executed this Amendment as
of
the date(s) written below.
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XXXX
RESOURCES, A DELAWARE LIMITED PARTNERSHIP,
a
Delaware limited partnership,
By: Xxxx
MGP, Inc., a Delaware corporation, its managing partner
By:__________________________________________
Name:
Xxxxxx X. Xxxxx
Title:
Vice President & CFO
Date:________________________,
2005
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XXXX
XXXXXXX LIFE INSURANCE COMPANY,
a
corporation incorporated under the laws of the Commonwealth of
Massachusetts
By:________________________________________
Name:
C. Xxxxxxx Xxxx
Title:
Director
Date:___________________________,
2005
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XXXX
XXXXXXX VARIABLE LIFE INSURANCE COMPANY,
a
corporation incorporated under the laws of the Commonwealth of
Massachusetts
By:________________________________________
Name:
C. Xxxxxxx Xxxx
Title:
Authorized Signatory
Date:_________________________,
2005
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