1
Exhibit 10.25
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
is made as of March 17, 2000 by and between North Coast Energy, Inc., a Delaware
corporation ("Borrower"), and ING (U.S.) Capital LLC, successor in interest to
ING (U.S.) Capital Corporation, as Agent and as a Lender (herein called
"Agent"), and the other Lenders from time to time parties to the Credit
Agreement.
WITNESSETH:
WHEREAS, Borrower, Agent and Lenders have entered into that certain Credit
Agreement dated as of February 9, 1998 (as amended, supplemented, or restated to
the date hereof, the "Original Agreement"), for the purposes and consideration
therein expressed, pursuant to which Lenders became obligated to make loans to
Borrower as therein provided; and
WHEREAS, Borrower, Agent, and Lenders desire to amend the Original
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1.1 TERMS DEFINED IN THE ORIGINAL AGREEMENT. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise requires,
the following terms when used in this Amendment shall have the meanings
assigned to them in this section 1.2.
"AMENDMENT" means this Fourth Amendment to Credit Agreement.
"AMENDMENT DOCUMENTS" means this Amendment, the Borrower
Security Agreement, the PEI Guaranty, the PEI Mortgage, and
the Subordination Agreement.
"B&B" means Xxxxxx & Xxxxx Corporation, an Ohio corporation.
2
"BORROWER SECURI1Y AGREEMENT" means that certain Security Agreement of even
date herewith by Borrower pursuant to which Borrower grants to Agent for the
benefit of Lenders a first priority lien and security interest encumbering the
personal property of Borrower described therein, including but not limited to
all of Borrower's rights under the Stock Purchase Agreement and all of the
issued and outstanding capital stock of PEI.
"CREDIT AGREEMENT " means the Original Agreement as amended hereby.
"NUON" means, collectively, Nuon International Projects B.V., and entity
organized under the laws of the Kingdom of the Netherlands, and its Affiliates
(other than Borrower and its Subsidiaries).
"NUON LOAN" means the loan in the principal amount of $72,500,000 made by
Nuon to Borrower on the date hereof.
"NUON LOAN DOCUMENTS" means, collectively, all agreements, promissory
notes, security agreements, deeds of trusts, mortgages, and all other writings
of any kind and character to which Nuon or Borrower is a party which govern,
secure, or are otherwise directly or indirectly related to, the Nuon Loan.
"PEI" means Xxxxx Energy, Inc., a Delaware corporation.
"PEI GUARANTY" means that certain Guaranty by PEI in favor of Agent of even
date herewith.
"PEI MORTGAGE" means that certain Deed of Trust, Credit Line Deed of Trust,
Mortgage, Assignment, Security Agreement, Fixture Filing, and Financing
Statement by PEI in favor of Agent of even date herewith.
"STOCK PURCHASE AGREEMENT" means certain Stock Purchase Agreement dated as
of January 1, 2000 by and between Borrower and B&B.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement of
even date herewith by and between Borrower, Nuon, and Agent, pursuant to which
Nuon subordinates (a) the payment and performance by Borrower of its obligations
under the Nuon Loan Documents to the payment and performance by Borrower of the
Obligations and (b) all Liens in favor of Nuon securing the Nuon Loan to all
Liens in favor of Agent for the benefit of Lenders securing the Obligations.
ARTICLE II.
AMENDMENTS TO ORIGINAL AGREEMENT; CONSENT
Section 2.1. DEFINED TERMS. The following defined terms are hereby added
to Section 1.1 of the Original Agreement:
-2-
3
"FOURTH AMENDMENT" means that certain Fourth Amendment to Credit Agreement
dated as of March 17, 2000 by and between Borrower, Agent, and Lenders.
"NUON" means, collectively, Nuon International Projects B.V., and entity
organized under the laws of the Kingdom of the Netherlands, and its Affiliates
(other than Borrower and its Subsidiaries).
"SUBORDINATED NOTES" means, collectively, those two certain promissory
notes attached to the Fourth Amendment as Exhibits A and B, respectively, dated
as of March 17, 2000 by Borrower to the order of Nuon in the aggregate original
principal amount of $72,500,000, and all promissory notes given in renewal and
extension thereof.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement dated
as of March 17, 2000, as from time to time amended, supplemented, or restated,
by and between Borrower, Nuon, and'Agent, pursuant to which Nuon subordinated
(a) the payment and performance by Borrower of its obligations under the
Subordinated Notes to the payment and performance by Borrower of the Obligations
and (b) all Liens in favor of Nuon securing the Subordinated Notes to all Liens
in favor of Agent for the benefit of Lenders securing the Obligations.
Section 2.2. INDEBTEDNESS. Section 7.1 of the Original Agreement is hereby
amended by adding thereto the following subsection 7. 1(h):
"(h) Indebtedness evidenced by the Subordinated Notes in the aggregate
principal amount not to exceed $72,500,000 at any time outstanding incurred
by Borrower in favor of Nuon, which has been subordinated to the
Obligations pursuant to the Subordination Agreement."
Section 2.3. Limitation ON LIENS. Section 7.2 of the Original Agreement is
hereby amended by adding thereto the following subsection (f):
"(f) Liens securing Indebtedness described in Section 7.1(h) which
have been subordinated to the Liens securing the Obligations pursuant to
the Subordination Agreement."
Section 2.4. EBITDA. Section 7.13 of the Original Agreement is hereby
amended in its entirety to read as follows:
"Section 7.13. EBITDA. At the end of any Fiscal Quarter, the ratio of
(a) Borrower's Consolidated EBITDA to (b) Consolidated Interest Expense,
for the four- Fiscal Quarter period ending with such Fiscal Quarter will
not be less than 2.25 to 1."
Section 2.5. SUBORDINATED NOTES. THE Original Agreement is hereby amended
by adding to Article VII thereto the following Section 7.14:
-3-
4
"Section 7.14. SUBORDINATED NOTES. Borrower shall not make any payment of
principal or interest on the Subordinated Notes in violation of the
Subordination Agreement."
Section 2.6. CONSENT. Agent and Lenders hereby (a) consent to the making
of a loan by Borrower to Borrower's Chief Executive Officer in an amount not to
exceed $96,000 and (b) waive any Default or Event of Default arising as a
result of the making of such loan under Section 8.1(d) of the Credit Agreement.
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of the date first above written when and only when each of the
following conditions shall have been satisfied:
(a) Agent shall have received, at Agent's office, each of the following in
form, substance and date satisfactory to Agent: (i) a counterpart of each
Amendment Document executed and delivered by each party thereto, (ii) a copy of
the preliminary settlement statement required by the Stock Purchase Agreement,
(iii) one or more stock certificates with duly executed stock powers attached
thereto evidencing all of the issued and outstanding capital stock of PEI, (iv)
documents duly executed by creditors of PEI and/or B&B evidencing (A) the
release of all Liens encumbering the property or capital stock of PEI and (B)
the termination of all guarantees to which PEI is a party, (v) a written opinion
of counsel for Borrower, dated as of the date of this Amendment, addressed to
Agent, to the effect that each Amendment Document has been duly authorized,
executed and delivered by each Restricted Person that is a party thereto and
that the Credit Agreement and each of the other Loan Documents, as amended by
the Amendment Documents, constitutes the legal, valid and binding obligations of
each Restricted Person that is a party thereto, enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency and similar laws and to general principles of equity)
and such other matters of Agent may require, (vi) title opinions acceptable to
Agent in Agent's sole and absolute discretion with respect to the real property
owned by PEI, (vii) letters addressed to Agent from counsel to Borrower and/or
Nuon stating that Agent and Lenders shall be permitted to rely upon all opinion
letters delivered to B&B, if any, by legal counsel to Borrower and/or Nuon
pursuant to the Stock Purchase Agreement, (viii) documents similar to those
specified in Sections 4.1(d)(i) and 4.1(e) of the Original Agreement with
respect to PEI, and (ix) the Nuon Loan Documents.
(b) Agent shall have received a certificate of a duly authorized officer of
Borrower dated the date of this Amendment certifying: (i) that all of the
representations and warranties set forth in section 4.1 hereof are true and
correct at and as of the time of such effectiveness; and (ii) as to such other
corporate matters as Agent shall deem necessary.
-4-
5
(c) The acquisition by Borrower of all of the issued and outstanding
capital stock of PEI pursuant to the Stock Purchase Agreement and all of the
transactions contemplated under the Stock Purchase Agreement shall have been
consummated, in compliance with the terms and conditions thereof and all
representations and warranties made by any party to the Stock Purchase Agreement
shall be true and correct.
(d) Agent shall have additionally received such other documents as
Agent may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES, COVENANTS
Section 4.1. REPRESENTATIONS AND WARRANTIES OF Borrower. In order to
induce Agent to enter into this Amendment, Borrower represents and warrants as
of the date on which this Amendment becomes effective to Agent that:
(a) The representations and warranties contained in Article V of the of the
Original Agreement (as amended hereby) are true and correct at and as of the
time of the effectiveness hereof and after giving effect to the Stock Purchase
Agreement.
(b) Each Restricted Person is duly authorized to execute and deliver each
Amendment Document to which it is a party and Borrower is and will continue to
be duly authorized to borrow and to perform its obligations under the Credit
Agreement. Borrower is duly authorized to execute and deliver the Stock Purchase
Agreement. Each Restricted Person has duly taken all corporate action necessary
to authorize the execution and delivery of each Amendment Document to which it
is a party and to authorize the performance of the obligations of it hereunder
and thereunder. Borrower has duly taken all corporate action necessary to
authorize the execution and delivery of the Stock Purchase Agreement and to
authorize the performance of the obligations of it thereunder.
(c) The execution and delivery by (i) Borrower of the Stock Purchase
Agreement and (ii) each Restricted Person of the Amendment Documents to which it
is a party, the performance by each Restricted Person of its obligations
hereunder and thereunder, and the consummation of the transactions contemplated
hereby and thereby do not and will not conflict with any provision of law,
statute, rule or regulation or of the articles of incorporation and bylaws of
any Restricted Person, or of any material agreement, judgment, license, order or
permit applicable to or binding upon any Restricted Person, or result in the
creation of any lien, charge or encumbrance upon any assets or properties of any
Restricted Person. Except for those which have been duly obtained, no consent,
approval, authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by (i) Borrower
of the Stock Purchase Agreement or (ii) each Restricted Person of the Amendment
Documents to which it is a party, or to consummate the transactions contemplated
hereby and thereby.
-5-
6
(d) When duly executed and delivered, each of the Stock Purchase Agreement
and each Loan Document, as amended by the Amendment Documents, will be a legal
and binding instrument and agreement of each Restricted Person that is a party
thereto, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency and similar laws applying to creditors' rights generally
and by principles of equity applying to creditors' rights generally.
(e) The audited annual financial statements of Borrower dated as of March
31, 1999, and the unaudited quarterly financial statements of Borrower dated
December 31, 1999 fairly present the financial position at such dates and the
statement of operations and the changes in financial position for the periods
ending on such dates for Borrower. Copies of such financial statements have
heretofore been delivered to Agent. Since December 31, 1999, no material adverse
change has occurred in the financial condition or businesses of Borrower.
(f) Each condition precedent to the effectiveness of the Stock Purchase
Agreement has occurred and the acquisition by Borrower of all of the issued and
outstanding capital stock of PEI pursuant to the Stock Purchase Agreement has
occurred.
(g) Each representation and warranty made by Borrower with respect to
itself, PEI, and Borrower's other Subsidiaries in the Stock Purchase Agreement
is true and correct at and as of the effectiveness hereof.
Section 4.2. COVENANTS. Borrower hereby covenants (a) to promptly deliver
to Agent after receipt thereof a copy of the final settlement statement
required by the Stock Purchase Agreement and (b) to promptly deliver to Agent a
copy of each other agreement, instrument, certificate, and writing of any kind
or character executed by Borrower or B&B in connection with the Stock Purchase
Agreement within fifteen (15) days after receipt of a written request therefor
by Agent. Borrower agrees that its failure to comply with this section 4.2 shall
constitute an Event of Default.
ARTICLE V.
MISCELLANEOUS
Section 5.1. RATIFICATION OF AGREEMENTS. Each Loan Document, as amended
by the Amendment Documents, is hereby ratified and confirmed in all respects.
Any reference to the Credit Agreement in any Loan Document shall be deemed to
refer to this Amendment also. The execution, delivery and effectiveness of this
Amendment and the other Amendment Documents shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy
of Agent 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.
Section 5.2. Survival OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the
-6-
7
Loan, and shall further survive until all of the Obligations are paid in full.
All statements and agreements contained in any certificate or instrument
delivered by any Restricted Person hereunder or under the Credit Agreement to
Agent shall be deemed to constitute representations and warranties by, or
agreements and covenants of, Borrower under this Amendment and under the Credit
Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment and the other Amendment
Documents are each a Loan Document, and all provisions in the Credit Agreement
pertaining to Loan Documents apply hereto and thereto.
Section 5.4 GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 5.5. COUNTERPARTS. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT 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 OF THE PARTIES.
-7-
8
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
NORTH COAST ENERGY, INC.
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx
Chief Executive Officer
ING (U.S.) CAPITAL LLC, as Agent
and Lender
By:
-----------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
-8-
9
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
NORTH COAST ENERGY, INC.
By:
-----------------------------
Xxxx Xxxxx
Chief Executive Officer
ING (U.S.) CAPITAL LLC, as Agent
and Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
Senior Vice President
-8-
10
CONSENT AND AGREEMENT
---------------------
North Coast Operating Company (the "Company") and each of the
partnerships party hereto (the "Partnerships") hereby consent to the provisions
of this Amendment and the transactions contemplated herein, and agrees that the
Company's and the Partnership's obligations and covenants under the Credit
Agreement are unimpaired hereby and shall remain in full force and effect. Xxxxx
Energy, Inc. hereby consents to the provisions of this Amendment and the
transactions contemplated herein, and agrees that its obligations and covenants
under its Guaranty of even date herewith in favor of Agent are unimpaired hereby
and shall remain in full force and effect.
Date: March 17, 2000
XXXXX ENERGY, INC.
By: ________________
Name:
Title:
NORTH COAST OPERATING COMPANY
BY: ________________
Name:
Title:
Capital Drilling Fund
1986-1 Limited Partnership
North Coast Energy/Capital 1987-1
Appalachian Private Drilling
Program L.P.
North Coast Energy/Capital 1987-2
Appalachian Private Drilling
Program L.P.
North Coast Energy/Capital 1988-1
Appalachian Private Drilling
Program L.P.
-1-
11
North Coast Energy/Capital 1988-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1989 Appalachian
Public Drilling Program L.P.
North Coast Energy 1990-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1990-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1990-3
Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1991-3
Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1992-3
Appalachian Private Drilling
Program L.P.
North Coast Energy 1993-1
Appalachian Private Drilling
Program L.P.
-2-
12
North Coast Energy 1993-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1993-3
Appalachian Private Drilling
Program L.P.
North Coast Energy 1994-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1994-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1994-3
Appalachian Private Drilling
Program L.P.
North Coast Energy 1995-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1995-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1996-1
Appalachian Private Drilling
Program L.P.
North Coast Energy 1996-2
Appalachian Private Drilling
Program L.P.
North Coast Energy 1997-1
Appalachian Private Drilling
Program L.P.
-3-
13
North Coast Energy 1997-2
Appalachian Private Drilling
Program L.P.
By: NORTH COAST ENERGY, INC., general partner
By: /s/ Xxxx Xxxxx
-----------------------
Name:
Title:
