EXHIBIT 10.1
EXECUTION
VERSION
SIXTH AMENDMENT
SIXTH AMENDMENT, dated as of May 30, 2003 (this "Amendment"), to the
Credit Agreement referred to below made by and among Xxxxxx & Xxxxx Corporation,
an Ohio corporation (the "Borrower"), each subsidiary of the Borrower listed as
a "Guarantor" on signature pages hereto (each a "Guarantor" and collectively,
the "Guarantors" and together with the Borrowers, each a "Loan Party" and
collectively, the "Loan Parties"), Ableco Finance LLC, a Delaware limited
liability company ("Ableco"), in its capacity as administrative agent and
collateral agent on behalf of the Lenders referred to below, and Foothill
Capital Corporation, a California corporation ("Foothill"), in its capacity as
funding agent on behalf of the Lenders referred to below.
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of August 23, 2000 (such agreement, as amended, restated or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Guarantors and each of the lenders from time to time party thereto (each a
"Lender" and collectively, the "Lenders"), Ableco in its capacity as the
collateral agent and administrative agent for the Lenders (in such capacity, the
"Collateral Agent" and the "Administrative Agent", respectively), and Foothill
in its capacity as funding agent for the Lenders (in such capacity, the "Funding
Agent", and, together with the Collateral Agent and Administrative Agent, each
an "Agent" and collectively, the "Agents"), the Lenders have agreed to make
certain revolving loans, which includes a subfacility for the issuance of
Letters of Credit (as defined in the Credit Agreement), and term loans to the
Borrower;
WHEREAS, the Borrower has requested that the Lenders, and the Lenders
have agreed to, (a) increase the Total Commitment (as defined in the Credit
Agreement) from $100,000,000 to $125,000,000 solely to provide for a special
letter of credit facility in an amount equal to $25,000,000 whereby the Borrower
may from time to time request the issuance of Letters of Credit (as defined in
the Credit Agreement) thereunder solely to secure its obligations under
Commodity Hedging Agreements (as defined in the Credit Agreement), (b) extend
the Final Maturity Date (as defined in the Credit Agreement) to June 30, 2006
and (c) make amendments to certain other terms and conditions in the Credit
Agreement; and
WHEREAS, Xxxxxxxxx L.L.C., a New York limited liability company (the
"Additional Lender"), intends to become a Lender under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and agreements herein,
the parties hereto hereby agree as follows:
1. Definitions. All terms used herein that are defined in the
Credit Agreement and not otherwise defined herein are used herein as defined
therein.
2. Recitals. The following clause (iii) shall be added to the end
of the second WHEREAS paragraph set forth in the Recitals:
"and (iii) an additional special facility for the issuance of
Letters of Credit (as hereafter defined) which shall be
available to the Borrower solely to secure its obligations
under Commodity Hedging Agreements (as hereafter defined);"
3. Commitments. The definition of the term "Commitments"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"'Commitments': with respect to each Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and Special L/C
Commitment."
4. EBITDA. The definition of the term "EBITDA" contained in
Section 1.1 of the Credit Agreement is hereby amended by inserting immediately
after the term "letter of credit fees" the following parenthetical "(including
the Special L/C Fee and the Special L/C Facility Fee)".
5. Final Maturity Date. The definition of the term "Final
Maturity Date" contained in Section 1.1 of the Credit Agreement is hereby
amended by deleting the reference to the date "December 31, 2005" and
substituting in lieu thereof the date "June 30, 2006".
6. NYMEX Strip Price. The definition of the term "NYMEX Strip
Price" contained in Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"'NYMEX Strip Price': as of any date of determination, (i) for
the 36 month period commencing with the month in which the date of
determination occurs, the average of the 36 succeeding monthly futures
contract prices, commencing with the month during which the
determination date occurs, for each of the appropriate crude oil and
natural gas categories included in the most recent Reserve Report
provided by the Borrower to the Agents pursuant to subsection 7.1(e),
as quoted on the NYMEX, and (ii) for periods after such 36 month
period, the average of the quoted prices for the period from and
including the 25th month in such 36 month period through the 36th month
in such period; provided, that if the NYMEX no longer provides futures
contract price quotes or has ceased to operate, the comparable futures
contract prices quoted on such other nationally recognized commodities
exchange as the Collateral Agent shall designate, provided, further,
that the NYMEX Strip Price for natural gas shall not exceed $5.00 per
MmBTU."
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7. Pro Rata Share. The definition of the term "Pro Rata Share"
contained in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"'Pro Rata Share': (a) with respect to a Lender's obligation
to make Revolving Credit Loans and receive payments of interest, fees,
and principal with respect thereto, the percentage obtained by dividing
(i) such Lender's Revolving Credit Commitment, by (ii) the Total
Revolving Credit Commitment; provided, that, if the Revolving Credit
Commitments have been reduced to zero, the numerator shall be the
aggregate unpaid principal amount of such Lender's Revolving Credit
Loans (including Agent Advances) and its interest in the Letter of
Credit Obligations (excluding Letter of Credit Obligations related to
the Special L/C Facility) and the denominator shall be the aggregate
unpaid principal amount of all of the Revolving Credit Loans (including
Agent Advances) and Letter of Credit Obligations (excluding Letter of
Credit Obligations related to the Special L/C Facility);
(b) with respect to a Lender's obligation to make the
Term Loan and receive payments of interest, fees, and principal with
respect thereto, the percentage obtained by dividing (i) such Lender's
Term Loan Commitment, by (ii) the Total Term Loan Commitment; provided
that, if the Term Loan Commitments have been reduced to zero, the
numerator shall be the aggregate unpaid principal amount of such
Lender's Term Loan and the denominator shall be the aggregate unpaid
principal amount of all Term Loans;
(c) with respect to a Lender's obligation to participate
in Letters of Credit under the Special L/C Facility, to reimburse the
Issuing Lender with respect to such Letters of Credit and to receive
payments of fees and other amounts with respect thereto, the percentage
obtained by dividing (i) such Lender's Special L/C Commitment, by (ii)
the Total Special L/C Commitment; provided that, if the Special L/C
Commitments have been reduced to zero, the numerator shall be the
aggregate unpaid amount of such Lender's Letter of Credit Obligations
related to the Special L/C Facility and the denominator shall be the
aggregate unpaid amount of all Letter of Credit Obligations related to
the Special L/C Facility; and
(d) with respect to all other matters (including, without
limitation, the indemnification obligations arising under subsection
10.5), the percentage obtained by dividing (i) the sum of such Lender's
Commitments, by (ii) the sum of the Total Commitment; provided, that if
such Lender's Commitments shall have been reduced to zero, such
Lender's Commitment shall be the aggregate unpaid principal amount of
such Lender's Loans and its interest in the Letter of
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Credit Obligations (including, without limitation, the Obligations
under the Special L/C Facility) and if the Total Commitment shall have
been reduced to zero, the Total Commitment shall be the aggregate
unpaid principal amount of the Loans and the Letter of Credit
Obligations (including, without limitation, the Letter of Credit
Obligations related to the Special L/C Facility)."
8. Total Commitment. The definition of the term "Total
Commitment" contained in Section 1.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"'Total Commitment' the sum of the Total Revolving Credit
Commitment, the Total Term Loan Commitment and the Total Special L/C
Commitment."
9. New Definitions. Each of the following definitions of the
terms "Letter of Credit Fee", "Special L/C Commitment", "Special L/C Facility",
"Special L/C Facility Fee", "Special L/C Fee" and "Total Special L/C Commitment"
is hereby added to Section 1.1 of the Credit Agreement in the appropriate
alphabetical order:
"'Letter of Credit Fee': as defined in subsection 3.3(b)(i)."
"'Special L/C Commitment': the obligation of the Funding Agent
and the Lenders identified on Schedule 1.1(a) with a Special L/C
Commitment to assist the Borrower in obtaining the issuance of Letters
of Credit by the Issuing Lender pursuant to the Special L/C Facility
established under subsection 3.1(f)."
"'Special L/C Facility': the facility to issue Letters of
Credit pursuant to subsection 3.1(f) in an amount not to exceed the
aggregate amount of the Total Special L/C Commitment."
"'Special L/C Fee': as defined in subsection 3.3(b)(i)."
"'Special L/C Facility Fee': as defined in subsection 2.6(e)."
"'Total Special L/C Commitment': the sum of the amounts of the
Lenders' Special L/C Commitments."
10. Schedule 1.1(a). Schedule 1.1(a) of the Credit Agreement is
hereby amended and restated in its entirety as set forth in Exhibit A hereto.
11. Commitments. The first sentence of subsection 2.1(b) of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Notwithstanding the foregoing (A) the aggregate principal amount of
the Revolving Credit Loans outstanding at any time to the Borrower
hereunder shall not exceed the lower of (x) the difference between (1)
the Total Revolving
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Commitment and (2) the aggregate Letter of Credit Obligations (other
than Letter of Credit Obligations related to the Special L/C Facility),
and (y) the difference between (1) the then current Borrowing Base and
(2) the sum of the aggregate Letter of Credit Obligations (including,
without limitation, the Letter of Credit Obligations related to the
Special L/C Facility) plus the aggregate outstanding principal amount
of the Total Term Loan, (B) the aggregate principal amount of the Term
Loans outstanding at any time to the Borrower hereunder shall not
exceed the lower of (x) $25,000,000 and (y) the difference between (1)
the then current Borrowing Base and (2) the sum of the aggregate Letter
of Credit Obligations (including, without limitation, the Letter of
Credit Obligations related to the Special L/C Facility) plus the
aggregate outstanding principal amount of the Revolving Credit Loans,
and (C) the aggregate principal amount of the Loans outstanding at any
time to the Borrower hereunder plus the aggregate Letter of Credit
Obligations (including, without limitation, the Letter of Credit
Obligations related to the Special L/C Facility) shall not at any time
exceed the maximum principal amount of Indebtedness permitted to be
incurred by the Borrower under the Senior Subordinated Indenture."
12. Reduction of Commitment. The following new subclause (iii) is
hereby added to subsection 2.5(a) of the Credit Agreement:
"(iii) Special L/C Commitment. The Total Special L/C
Commitment shall terminate at the earlier of (x) the date on which the
Borrower provides written notice to the Administrative Agent to
terminate such Commitment and (y) the termination of the Total
Revolving Credit Commitment. Upon the termination of the Total Special
L/C Commitment, the Borrower shall either (A) provide cash collateral
to be held by the Funding Agent for the benefit of the Lenders with a
Special L/C Commitment in an amount equal to 110% of the maximum amount
of the Lenders' obligations under the outstanding Letters of Credit
issued under the Special L/C Facility or (B) cause the original Letters
of Credit issued under the Special L/C Facility to be returned to the
Funding Agent. The Total Special L/C Commitment may be terminated by
the Borrower without penalty or premium."
13. Early Termination by the Borrower. Subsection 2.5(f) of the
Credit Agreement is hereby amended by deleting the reference to the date
"December 31, 2004" contained in clause (ii) thereof and substituting in lieu
thereof the date "June 30, 2005".
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14. Unused Line Fee. The first sentence of subsection 2.6(b) of
the Credit Agreement is hereby amended by inserting immediately after the term
"Total Commitment" the following parenthetical "(other than the Special L/C
Commitment)" and by inserting immediately after the term "Letter of Credit
Obligations" the following parenthetical "(other than Letter of Credit
Obligations related to the Special L/C Facility)".
15. Special L/C Facility Fee. The following new subsection (e) is
hereby added to Section 2.6 of the Credit Agreement:
"(e) Special L/C Facility Fee. From and after November 30,
2004, the Borrower shall pay to the Funding Agent for the account of
the Lenders with a Special L/C Commitment a special L/C facility fee
(the "Special L/C Facility Fee"), which shall accrue at the rate per
annum of 0.50% on the excess, if any, of the Total Special L/C
Commitment over the sum of the average amount of Letter of Credit
Obligations related to the Letters of Credit issued under the Special
L/C Facility outstanding from time to time and shall be payable monthly
in arrears on the first Business Day of each month commencing December
1, 2004."
16. Letter of Credit Guaranty. (a) The first sentence of
subsection 3.1(b) of the Credit Agreement is hereby amended by inserting
immediately after the term "Letter of Credit Obligations" the following
parenthetical "(other than the Letter of Credit Obligations related to the
Special L/C Facility)".
(b) Subsection Section 3.1(e) of the Credit Agreement is
hereby amended by deleting in its entirety the three references to "the Lenders"
and substituting in lieu thereof the reference "the applicable Lenders".
17. Special L/C Facility. The following new subsection (f) is
hereby added to Section 3.1 of the Credit Agreement:
"(f) Notwithstanding any provision contained in this Section 3
or any Loan Document, each Lender with a Special L/C Commitment hereby
agrees to assist the Borrower in establishing or opening Letters of
Credit under the Special L/C Facility; provided that each such Letter
of Credit shall be used by the Borrower solely to secure the Borrower's
obligations under Commodity Hedging Agreements. The aggregate Letter of
Credit Obligations under the Special L/C Facility shall not exceed the
lower of (i) the amount by which the Borrowing Base exceeds the sum of
the aggregate principal amount of the Loans then outstanding plus the
Letter of Credit Obligations not related to the Special L/C Facility
and (ii) the Total Special L/C Commitment. Each of the Lenders, the
Agents, the Issuing Lender and the Borrower agrees that (A) each Letter
of Credit issued pursuant to the Special L/C Facility shall constitute
a Letter of Credit, (B) the obligations related to each such Letter of
Credit shall constitute Obligations and/or Letter of Credit Obligations
for all purposes of this Agreement and the other Loan Documents, unless
otherwise specifically excluded therefrom, (C) the Issuing
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Lender of each such Letter of Credit shall be entitled to the rights
and benefits of the Letter of Credit Guaranties, and (D) each such
Letter of Credit shall be entitled and subject to all other rights,
remedies, benefits, duties and obligations contained in the Loan
Documents, including, without limitation, the benefits of the Liens of
the Collateral Agent on the Collateral."
18. Letter of Credit Fees. Clause (i) of subsection 3.3(b) is
hereby amended and restated in its entirety to read as follows:
"(i) The Borrower shall pay to the Funding Agent for the
account of the Lenders with a Revolving Credit Commitment, in
accordance with the Lenders' Pro Rata Shares for any Letter of Credit
issued under the L/C Subfacility, a nonrefundable fee equal to 1.5% per
annum of the outstanding amount of the Letter of Credit Obligations
attributable to the Letters of Credit issued under the L/C Subfacility
(excluding any Letters of Credit issued under the Special L/C
Facility), payable monthly in arrears (the "Letter of Credit Fees").
The Borrower shall pay to the Funding Agent for the account of the
Lenders with a Special L/C Commitment, in accordance with the Lenders'
Pro Rata Shares for any Letter of Credit issued under the Special L/C
Facility, a nonrefundable fee equal to 2.5% per annum of the
outstanding amount of the Letter of Credit Obligations attributable to
the Letters of Credit issued under the Special L/C Facility, payable
monthly in arrears (the "Special L/C Fee")."
19. Financial Covenant Conditions. (a) The following fiscal
quarters and ratios shall be added to the Senior Debt Interest Coverage Ratio
set forth in subsection 8.1(a) of the Credit Agreement:
"December 31, 2005 3.2:1
March 31, 2006 3.2:1"
(b) The following fiscal quarters and ratios shall be
added to the Senior Debt Leverage Ratio set forth in subsection 8.1(b) of the
Credit Agreement:
"December 31, 2005 2.7:1
March 31, 2006 2.7:1"
20. Records. Section 11.16 of the Credit Agreement is hereby
amended by inserting immediately after the term "the Unused Line Fee" the
following ", the Special L/C Facility Fee, the Special L/C Fee".
21. Additional Lender. (a) On and as of the Amendment Effective
Date (as hereafter defined), each of the Additional Lender, Foothill Capital
Corporation and Foothill Income Trust, L.P. shall provide the Special L/C
Commitment to the Borrower so that, after giving effect thereto, the Total
Commitments (including the Special L/C Commitment) will be as set forth in
Exhibit A to this Amendment, and the Special L/C Commitments, the Revolving
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Credit Commitments (including, without limitation, the Revolving Credit Loans
and the Letter of Credit Obligations related to the L/C Subfacility) and the
Term Loan Commitments will be held by each of the Lenders (including the
Additional Lender) in accordance with their Pro Rata Shares in the Total
Commitment, as set forth in Exhibit A to this Agreement.
(b) Each of the Borrower and the other Loan Parties
hereby consents to the increase in the Total Commitments, and agrees that the
Additional Lender shall have all of the rights and obligations of a Lender under
the Credit Agreement and the other Loan Documents with respect to the
Commitments provided by it. Commencing on and as of the Amendment Effective
Date, the Additional Lender will be a party to the Credit Agreement, agrees to
be bound by the terms and conditions of the Credit Agreement and the other Loan
Documents and will have all of the rights and obligations of a Lender under the
Credit Agreement and the other Loan Documents.
22. Conditions to Effectiveness. The effectiveness of this
Amendment (the date of such effectiveness, the "Amendment Effective Date") is
subject to the condition precedent that:
(a) this Amendment shall have been duly executed by a
Responsible Officer of the Borrower and each Guarantor and the Agents and the
Lenders, original counterparts of which shall have been delivered to the
Administrative Agent;
(b) each of the representations and warranties made by
each Loan Party in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of the Amendment Effective Date as if made on
and as of such date (unless such representations and warranties are stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date);
(c) no Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to this Amendment;
(d) the Administrative Agent shall have received, for the
ratable benefit of the Lenders, a non-refundable amendment fee which shall be
earned in full by such Lenders on the Amendment Effective Date in an amount
equal to $250,000, of which (i) 50% shall be due and payable on the Amendment
Effective Date and (ii) 50% shall be due and payable on the first anniversary of
the Amendment Effective Date (it being understood and agreed that such fee may
be charged to the Loan Account); provided, however, that if the Total Special
L/C Commitment shall, at the option of the Borrower, be terminated prior to the
first anniversary of the Amendment Effective Date, the Borrower shall not be
required to pay the remaining 50% of the amendment fee; and
(e) all other legal matters incident to this Amendment
shall be satisfactory to the Administrative Agent and its counsel.
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23. Ratification. Except as otherwise expressly provided herein,
each Loan Party confirms and agrees that (a) each Loan Document to which it is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that on and after the date on
which this Amendment is effective all references in any such Loan Document to
"the Credit Agreement", "thereto", "thereof", "thereunder", or words of like
import referring to the Credit Agreement shall mean the Credit Agreement as
amended by this Amendment, and (b) to the extent that any such Loan Document
purports to assign or pledge to the Administrative Agent, or to grant to the
Administrative Agent a security interest in or lien on, any collateral as
security for its obligations from time to time existing in respect of the Loan
Documents, such pledge, assignment and/or grant of a security interest or lien
is hereby ratified and confirmed in all respects as security for all of its
obligations, whether now existing or hereafter arising. This Amendment does not
and shall not affect any Obligation or Guarantee Obligation (as the case may
be), other than as expressly provided herein, of any Loan Party under or arising
from the Credit Agreement or any other Loan Document, all of which obligations
shall remain in full force and effect. Except as expressly provided herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agents or the Lenders under the
Credit Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any other Loan Document.
24. Expenses. The Borrower hereby agrees to pay to the Agents upon
demand the amount of any and all fees, costs and expenses, including the
reasonable fees, disbursements and other client charges of the Agents' counsel,
which the Agents may incur in connection with this Amendment, the amounts of
which the Borrower agrees may be charged to the Loan Account.
25. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same waiver.
26. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of New York applicable to
contracts made and to be performed within such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
AGENTS AND LENDERS:
ABLECO FINANCE LLC, as Collateral Agent,
Administrative Agent and Lender, for itself
and on behalf of its affiliate assigns
By: /s/ XXXXX XXXXX
--------------------------------------
Xxxxx Xxxxx / Sr. V.P. & CCO
FOOTHILL CAPITAL CORPORATION, as
Funding Agent and Lender
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Title: Assistant Vice President
FOOTHILL INCOME TRUST, L.P., as Lender,
By: FIT GP, LLC, its general partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Title: Managing Member
XXXXXXXXX L.L.C., as Lender
By: /s/ XXXXX XXXXX
--------------------------------------
Xxxxx Xxxxx / V.P.
BORROWER:
XXXXXX & BLAKE CORPORATION
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Title: Chief Financial Officer
Vice President
GUARANTORS:
THE CANTON OIL & GAS COMPANY
Xxxxxx X. Xxxxxx
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Title: Chief Financial Officer
Vice president
XXXX LAKE DRILLING, INC.
Xxxxx X. Xxxxx
By: /s/ XXXXX X. XXXXX
---------------------------------------
Title: Treasurer
EXHIBIT A
SCHEDULE 1.1 (a)
LENDERS' COMMITMENTS
Revolving Credit
Lender Commitment Percentage
------------------------------------------ ---------------------------------- ---------------
Ableco Finance LLC and its affiliates $ 60,000,000 60%
Foothill Capital Corporation 30,000,000 30%
Foothill Income Trust, L.P. 10,000,000 10%
-----------------------------------------------------------------------------------------------------
Total Revolving Credit Commitment $ 100,000,000 100%
Term Loan Commitment
Term Loan Commitment expired on December 26, 2000.
Special L/C
Lender Commitment Percentage
------------------------------------------ ---------------------------------- ---------------
Xxxxxxxxx L.L.C. $ 15,000,000 60%
Foothill Capital Corporation 7,500,000 30%
Foothill Income Trust, L.P. 2,500,000 10%
-----------------------------------------------------------------------------------------------------
Total Special L/C Commitment $ 25,000,000 100%
Revolving Credit Special L/C
Lender Commitment Commitment Percentage
------------------------------------- --------------------- ----------------- ---------------
Ableco Finance LLC and its affiliates $ 60,000,000 -0- 48%
Xxxxxxxxx L.L.C. -0- $ 15,000,000 12%
Foothill Capital Corporation 30,000,000 7,500,000 30%
Foothill Income Trust, L.P. 10,000,000 2,500,000 10%
-----------------------------------------------------------------------------------------------------
Total Commitment $100,000,000 $ 25,000,000 100%
