EXHIBIT 10.1(e)
EXECUTION
VERSION
FOURTH AMENDMENT AND WAIVER
FOURTH AMENDMENT AND WAIVER, dated as of December 5, 2002
(this "Amendment and Waiver"), 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" or the "Administrative Agent"), 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 owns rights and interests in 957 oil and
natural gas xxxxx (the "Applicable Xxxxx") located in the states of New York and
Pennsylvania with aggregate Proved Developed Producing Reserves (as defined in
the Credit Agreement) of approximately 24.3 Bcfe, determined pursuant to the
monthly report of the Borrower dated as of September 30, 2002, delivered to the
Agents pursuant to subsection 7.l(f) of the Credit Agreement;
WHEREAS, the Borrower will sell to Great Lakes Energy Partners
the Applicable Xxxxx (the "sales"), and has requested a waiver of subsection
8.6(e) of the Credit Agreement so that the value of the Applicable Xxxxx will
not be included in determining the Borrower's compliance thereof;
WHEREAS, the obligations of the Borrowers and the Guarantors
to the Lenders and the Agents under the Loan Documents (as defined in the Credit
Agreement) are secured by the Applicable Xxxxx located in Pennsylvania (the
"Pennsylvania Xxxxx") pursuant to a Mortgage, made in favor of the
Administrative Agent for the benefit of the Lenders, which Mortgage was
registered in Erie, Xxxxxx and Venango Counties, Pennsylvania;
WHEREAS, the Borrower has requested that the Administrative
Agent partially release and discharge the Mortgage in connection with the Sale
of the Pennsylvania Xxxxx; and
WHEREAS, the Borrower has requested that the Lenders, and the
Lender have agreed to, (a) extend the Final Maturity Date (as defined in the
Credit Agreement) from April 22, 2005 to December 31, 2005, (b) increase the L/C
Subfacility (as defined in the Credit Agreement) from $30,000,000 to
$40,000,000, (c) extend the time period applicable to the Prepayment Penalty (as
defined in the Credit Agreement) and (d) amend the financial covenants;
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. Amendments.
(a) 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 "April 22, 2005" and substituting in lieu
thereof the date "December 31, 2005".
(b) The definition of "L/C Subfacility" set
forth in Section 1.1 of the Credit Agreement is hereby amended by deleting the
amount "$30,000,000" and substituting in lieu thereof the amount "$40,000,000".
(c) Clause (f) of subsection 2.5 of the Credit
Agreement is hereby amended by deleting the reference to the date "November
30, 2003" set forth in clause (ii) thereof and substituting in lieu thereof the
date "December 31, 2004".
(d) The following fiscal quarters and ratios
shall be added to the Senior Debt Interest Coverage Ratio set forth in clause
(a) of subsection 8.1 of the Credit Agreement:
"June 30, 2005 3.2:l
September 30, 2005 3.2:1"
(e) The following fiscal quarters and ratios shall be
added to the Senior Debt Leverage Ratio set forth in clause (b) of subsection
8.1 of the Credit Agreement:
"June 30, 2005 2.7:1
September 30, 2005 2.7:1"
3. Waiver. Pursuant to the request by the Borrower,
effective on the Amendment Effective Date, and in reliance upon the
representations and warranties of the Borrower set forth in the Credit Agreement
and this Amendment and Waiver, the Agents and the
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Lenders hereby agree that the Sale shall be in addition to the Dispositions
permitted pursuant to subsection 8.6(e) of the Credit Agreement and the value of
the Applicable Xxxxx being sold shall not be included in determining whether the
Borrower is in compliance thereof.
4. Effect of Waiver. Except as expressly set forth
herein, the waiver set forth in Section 2 hereof shall not by implication or
otherwise limit, impair, constitute a waiver of, or otherwise affect the rights
or remedies of the Lenders or the Agents under the Credit Agreement or any other
Loan Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle any Loan Party to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances. The waiver herein
shall apply and be effective only with respect to the matters expressly covered
in Section 3 hereof.
5. Mandatory Prepayment. Immediately upon the
consummation of the Sale, the Borrower shall cause the Net Cash Proceeds
received therefrom to be sent by wire transfer in immediately available funds to
the Funding Agent's Account. The amount of such cash proceeds from such Sale is
expected to be approximately $15,600,000 and such amount is subject to
adjustment upon the consummation of the Sale. The Net Cash Proceeds received
from such sale shall be applied to prepay the outstanding principal of the
Revolving Credit Loans, and, if no Revolving Credit Loans are outstanding, the
Term Loans, each in an amount equal to 100% of the Net Cash Proceeds received by
the Borrower or any of its Subsidiaries in connection with such Sale, which
prepayment shall be accompanied by accrued interest on the principal amount
being prepaid to the date of prepayment.
6. Limited Discharge and Release. Subject to Section 8
hereof, (a) without recourse and without any representation or warranty of any
kind, the Administrative Agent hereby partially discharges the Mortgage, and
partially terminates and releases any and all liens, security interests or other
charges or encumbrances in favor of the Administrative Agent, in and to the
Pennsylvania Xxxxx and (b) the Loan Parties hereby release the Agents and
Lenders from any duty, liability or obligation (if any) under any Loan Document
in respect of the Applicable Xxxxx. The Mortgage releases with respect to the
Pennsylvania Xxxxx are attached hereto as Exhibit A. The Administrative Agent
will execute and/or deliver such instruments and other writings, and take such
action, as the Borrower may reasonably request, to effect or evidence such
partial discharge of the Mortgage and such partial termination and release of
any liens, security interests or other charges or encumbrances, but without
representation, warranty or recourse to the Agents or the Lenders and at the
sole cost and expense of the Loan Parties.
7. Representations and Warranties.
(a) Each of the Loan Parties (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and (ii) has the corporate power and authority, and the legal
right, to execute, deliver and perform this Amendment and Waiver
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and to perform the Credit Agreement, as amended hereby, to the extent it is a
party to this Amendment and Waiver
(b) This Amendment and Waiver has been duly executed and
delivered on behalf of the Borrower and each Guarantor, and constitutes a legal,
valid and binding obligation of each such party enforceable against it in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding of equity or law) and an implied
covenant of good faith and fair dealing.
(c) The execution, delivery and performance of this
Amendment and Waiver will not violate any applicable Requirements of Law or
Contractual Obligations of the Borrower or any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation except pursuant to the Loan Documents.
(d) Each of the representations and warranties made by
each Loan Party in or pursuant to the Loan Documents are true and correct in all
material respects on and as of the date hereof as if made on and as of the date
hereof (unless such representations and warranties are stated to relate to a
specific earlier date, in which case such representations and warranties are
true and correct in all material respects as of such earlier date).
(e) No Default or Event of Default has occurred and is
continuing on the date hereof or after giving effect to this Amendment and
Waiver.
8. Conditions to Effectiveness. The effectiveness of the
amendment, waiver and discharge and release described in Sections 2, 3 and 6
hereof, respectively (the date of such effectiveness, the "Amendment Effective
Date"), is subject to the condition precedent that:
(a) the Sale shall have been consummated and the Net Cash
Proceeds related to the Sale shall have been received in the Funding Agent's
Account;
(b) 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;
(c) 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 and
Waiver;
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(d) the Administrative Agent shall have received (with
the number of original counterparts requested by the Administrative Agent), a
certificate of the Borrower and each of the Guarantors, dated the Amendment
Effective Date, as to the incumbency and signature of the officers of the
Borrower and each of the Guarantors executing any Loan Document reasonably
satisfactory in form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Borrower and each of the Guarantors;
(e) the Administrative Agent shall have received evidence
satisfactory to it authorizing the execution, delivery and performance of this
Amendment and Waiver to which it is a party;
(f) the Administrative Agent shall have received evidence
satisfactory to it that a duly executed copy of this Amendment and Waiver has
been, or substantially concurrently with the execution hereof, will be,
delivered to each Parent;
(g) the Administrative Agent shall have received, for the
ratable benefit of the Lenders, a non-refundable amendment fee in an amount
equal to $50,000, which fee is earned in full by the Lenders; and
(h) all other legal matters incident to this Amendment
and Waiver shall be satisfactory to the Administrative Agent and its counsel.
9. 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 and Waiver 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 Waiver, 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 other than the Applicable Xxxxx 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 and Waiver 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 and Waiver 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.
10. 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
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and other client charges of the Agents' counsel, which the Agents may incur in
connection with this Amendment and Waiver, the amounts of which the Borrower
agrees may be charged to the Loan Account.
11. Counterparts. This Amendment and Waiver 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.
12. Governing Law. This Amendment and Waiver 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 and
Waiver 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
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Title: Sr. V.P./Chief Credit Officer
FOOTHILL CAPITAL CORPORATION, as
Funding Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President
FOOTHILL INCOME TRUST, L.P., as Lender,
By: FIT GP, LLC, its general partner
By: /s/ M. E. Xxxxxxx
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Title: Managing Member
BORROWER:
XXXXXX & BLAKE CORPORATION
Xxxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxx
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Title: Chief Financial Officer/V.P.
GUARANTORS:
THE CANTON OIL & GAS COMPANY
Xxxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxx
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Title: Chief Financial Officer/X.X.
XXXX LAKE DRILLING, INC.
Xxxxx X. Xxxxx
By: /s/ Xxxxx X. Xxxxx
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Title: Treasurer
