EXHIBIT 10.6.5
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(hereinafter referred to as the "Amendment") executed as of the 15th day of
July, 2003, by and among RANGE RESOURCES CORPORATION, a Delaware corporation
("Borrower"), BANK ONE, NA, a national banking association ("Bank One"), each of
the financial institutions which is a party hereto (as evidenced by the
signature pages to this Amendment) or which may from time to time become a party
hereto pursuant to the provisions of Section 29 of the Credit Agreement or any
successor or assignee thereof (hereinafter collectively referred to as
"Lenders", and individually, "Lender"), Bank One, as Administrative Agent
("Agent"), Fleet National Bank, as Co-Documentation Agent, Fortis Capital Corp.,
as Co-Documentation Agent, JPMorgan Chase Bank, as Co-Syndication Agent, Credit
Lyonnais New York Branch, as Co-Syndication Agent, Banc One Capital Markets,
Inc., as Joint Lead Arranger and Joint Bookrunner and JPMorgan Securities, Inc.,
as Joint Lead Arranger and Joint Bookrunner. Capitalized terms used but not
defined in this Amendment have the meanings assigned to such terms in that
certain Amended and Restated Credit Agreement dated as of May 2, 2002, by and
among Borrower, Agent and Lenders (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement").
WITNESSETH:
WHEREAS, the Borrower has advised Agent and the Lenders that it intends
to consummate an offering of debt securities in accordance with the terms and
conditions of an Offering Memorandum substantially similar to the draft of an
Offering Memorandum provided to Agent and Lenders on or about July 16, 2003 (the
"Offering Memorandum"), with one or more Book-Running Managers selected by the
Borrower (the "Debt Offering"); and
WHEREAS, certain provisions of the Credit Agreement prohibit the
Borrower from consummating the Debt Offering without the express written consent
of Agent and the Super Majority Lenders; and
WHEREAS, the Borrower has requested the Agent and the Lenders to (i)
consent to the consummation of the Debt Offering and waive any Default or Event
of Default arising as a result thereof; and (ii) amend the Credit Agreement in
certain respects; and Agent and the Lenders have agreed to do so on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed, the
Borrower, Agent and the Lenders, hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction or waiver
in writing of each condition precedent set forth in Section 3 hereof, and in
reliance on the representations, warranties, covenants and agreements contained
in this Amendment, the Credit Agreement shall be amended in the manner provided
in this Section 1.
1.1 ADDITIONAL DEFINITIONS. Section 1 of the Credit Agreement shall be
and it hereby is amended by adding the following definitions in alphabetical
order to such section:
8.75% Senior Subordinated Notes means those certain 8.75% Senior
Subordinated Notes due January 15, 2007 issued pursuant to an Indenture dated as
of March 14, 1997 by and between Borrower and Fleet National Bank, as Trustee.
Convertible Subordinated Debentures means those certain 6% Convertible
Subordinated Debentures due 2007, issued pursuant to an Indenture by and between
Borrower and Key Corp. Shareholder Services, Inc., as Trustee.
Disqualified Stock means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof, in whole or in part, on or prior to the Maturity Date, or (ii) requires
the payment of any dividend other than dividends which are paid in kind.
Fourth Amendment to Credit Agreement means that certain Fourth
Amendment to Amended and Restated Credit Agreement, dated July 15, 2003, by and
among the Borrower, Agent and the Lenders
Refinancing Indebtedness means indebtedness of Borrower incurred
pursuant to clause (viii) of Section 13(h) hereof and any renewals or extensions
thereof.
Refinancing Net Proceeds means an amount equal to the proceeds of the
issuance of the Refinancing Securities less any and all transaction costs and
expenses incurred by Borrower in connection therewith, regardless of whether all
or any portion of such proceeds are applied to prepay the outstanding principal
balance of the Notes and accrued interest thereon prior to the application of
such proceeds to, or the exchange of Refinancing Securities for, indebtedness
evidenced by the Junior Securities pursuant to clause (viii) of Section 13(h)
and clause (iii) of Section 13(i).
Refinancing Securities means the notes, instruments, and securities
evidencing the Refinancing Indebtedness.
1.2 AMENDED DEFINITION. Each of the following definitions in Section 1
of the Credit Agreement shall be amended as follows:
Junior Securities means, collectively the 8.75% Senior Subordinated
Notes, the Convertible Subordinated Debentures, the Trust Convertible Preferred
Securities and the Refinancing Securities.
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Unscheduled Redeterminations means a redetermination of the Borrowing
Base made at any time other than on the dates set for the regular semi-annual
redetermination of the Borrowing Base which are made (A) at the request of
Borrower (but only once between Borrowing Base redeterminations), (B) at the
request of Super Majority Lenders (but only twice between Borrowing Base
redeterminations) or (C) upon the issuance of any Refinancing Securities,
provided, however, that (i) Super Majority Lenders may require an Unscheduled
Redetermination at any time it appears to Agent or Super Majority Lenders, in
the exercise of their reasonable discretion, that either (a) there has been a
material decrease in the value of the Oil and Gas Properties, or (b) an event
has occurred which is reasonably expected to have a Material Adverse Effect, or
(ii) Super Majority Lenders may require an Unscheduled Redetermination if
Borrower terminates any material agreements entered into in connection with a
Rate Management Transaction used by Lenders in determining the Hydrocarbon
Borrowing Base or if the counterparty to any such material agreement commences,
or has commenced against it any proceeding under any bankruptcy, insolvency or
similar law now or hereafter in effect.
1.3 AMENDMENT TO FINANCIAL STATEMENTS AND REPORTS. Clause (ii) of
Section 12(a) of the Credit Agreement shall be and it hereby is amended by
inserting the following at the end of such clause:
,together with a report demonstrating, in reasonable detail, the use of
the Refinancing Net Proceeds during such fiscal quarter, including, without
limitation, (w) the initial amount of the Refinancing Net Proceeds immediately
following the issuance of the Refinancing Securities and prior to the
application of any such Refinancing Net Proceeds to any indebtedness of the
Borrower, (x) the amount of the Refinancing Net Proceeds used to refinance,
repay, defease or redeem Junior Securities pursuant to and as permitted under
clause (viii) of Section 13(h) during such fiscal quarter and cumulatively since
the issuance of the Refinancing Securities, (y) the amount of Refinancing
Securities issued in exchange for Trust Convertible Preferred Securities during
such fiscal quarter and cumulatively since the issuance of the Refinancing
Securities and (z) the amount of Refinancing Net Proceeds remaining as of the
end of such fiscal quarter after giving effect to any Refinancing Securities
exchanged for any Trust Convertible Preferred Securities.
1.4 AMENDMENT TO DEBTS, GUARANTIES AND OTHER OBLIGATIONS. Section 13(h)
of the Credit Agreement shall be and it hereby is amended by deleting "or" at
the end of clause (vii), deleting clause (viii) of such Section and inserting
the following after clause (vii) of such Section as clauses (viii), and (ix) of
such Section:
(viii) the incurrence by Borrower, on or before September 30, 2003, of
unsecured indebtedness in an aggregate principal amount not to exceed
$135,000,000; provided that (A) no Default or Event of Default has occurred and
is continuing or would result therefrom, (B) such indebtedness is subordinated
in right of payment to the indebtedness, liabilities and obligations evidenced
by the Notes, the Agreement and the other Loan Documents, (C) the stated
maturity date with respect to such indebtedness is not earlier than January 1,
2010, (D) the annual interest rate with respect to such indebtedness is fixed at
a rate that is less than or equal to 8.5% per annum and is payable no more
frequently than quarterly; (E) the Refinancing Net Proceeds are used to
refinance or defease all of the issued and outstanding 8.75% Senior Subordinated
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Notes not later than sixty (60) days after the issuance of such indebtedness;
and (F) all of the Refinancing Net Proceeds in excess of the amount necessary to
refinance or defease all of the issued and outstanding 8.75% Senior Subordinated
Notes (less the amount, upon issuance, of any Refinancing Securities issued in
exchange for the Trust Convertible Preferred Securities) are used to either (x)
refinance, repay, defease, or redeem the Subordinated Convertible Debentures or
the Trust Convertible Preferred Securities, or (y) prepay, without premium or
penalty, the outstanding principal amount of the Notes and accrued interest
thereon to the date of prepayment; or
(ix) any renewals or extensions of (but, other than in the case of the
Notes, not increases in) any of the foregoing.
1.5 AMENDMENT TO RESTRICTED PAYMENTS. Section 13(i) of the Credit
Agreement shall be and it hereby is amended by deleting "or" at the end of
clause (i), deleting the period "." at the end of clause (ii), inserting "; or"
at the end of clause (ii) and inserting the following after clause (ii) of such
Section as clause (iii) of such Section:
(iii) the redemption or defeasance of the 8.75% Senior Subordinated
Notes, the Subordinated Convertible Debentures and the Trust Convertible
Preferred Securities with Refinancing Net Proceeds in accordance with and to the
extent permitted by clause (viii) of Section 13(h) hereof, and the exchange of
Refinancing Securities for the Trust Convertible Preferred Securities; provided
that no Default or Event of Default has occurred and is continuing or would
result therefrom.
1.6 AMENDMENT TO ISSUANCE OF PREFERRED STOCK. Section 13(p) of the
Credit Agreement shall be and it hereby is amended as follows:
(p) Issuance of Preferred Stock. Except as otherwise permitted with the
prior written consent of the Super Majority Lenders, Borrower shall not issue
any Disqualified Stock after the Effective Date.
1.7 AMENDMENT TO PAYMENTS OR PREPAYMENTS OF OTHER INDEBTEDNESS. Section
13(q) of the Credit Agreement shall be and it hereby is amended by deleting
"Section 13(i)(ii)" from such section and inserting "Section 13(i)" in
replacement thereof.
1.8 WAIVER OF CERTAIN ADDITIONAL BORROWING BASE ADJUSTMENTS.
Notwithstanding Section 7(c) of the Credit Agreement, Borrower, Agent and
Lenders hereby agree that no increase shall be made in the Borrowing Base with
respect to the issuance of the Refinancing Securities or the acquisition or
redemption of any Junior Securities with Refinancing Net Proceeds.
SECTION 2. CONSENT AND WAIVER. In reliance on the representations, warranties,
covenants and agreements contained in this Amendment, and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, the
Required Lenders hereby (a) consent to (i) the consummation of the Debt Offering
in accordance with the terms and conditions of the Offering Memorandum, and (ii)
the execution and delivery by Borrower of any and all agreements,
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documents and instruments necessary to evidence the Debt Offering (the "Debt
Offering Documents"), and the performance of its obligations and the exercise of
its rights under and pursuant thereto, and (b) waive compliance by Borrower with
each provision of the Credit Agreement and the other Loan Documents to the
extent, but only to the extent, that the consummation of the Debt Offering and
the execution and delivery of the Debt Offering Documents by Borrower, and the
performance of its obligations and the exercise of its rights under and pursuant
thereto, violate such provisions or result in a Default or Event of Default
under the Credit Agreement or the other Loan Documents. The consent and waiver
herein contained is expressly limited as follows: (x) such consent and waiver is
limited solely to the consummation of the Debt Offering in accordance with the
terms of the Debt Offering Documents most recently provided to Agent, and (y)
such consent and waiver is a limited, one-time consent and waiver, and nothing
contained herein shall obligate the Lenders to grant any additional or future
consent or waiver with respect to, or in connection with, any provision of any
Loan Document.
SECTION 3. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Except to the extent
its provisions are specifically amended, modified or superseded by this
Amendment, the representations, warranties and affirmative and negative
covenants of the Borrower contained in the Credit Agreement are incorporated
herein by reference for all purposes as if copied herein in full. The Borrower
hereby restates and reaffirms each and every term and provision of the Credit
Agreement, as amended, including, without limitation, all representations,
warranties and affirmative and negative covenants. Except to the extent its
provisions are specifically amended, modified or superseded by this Amendment,
the Credit Agreement, as amended, and all terms and provisions thereof shall
remain in full force and effect, and the same in all respects are confirmed and
approved by the Borrower and the Lenders.
SECTION 4. CONDITIONS. The amendments to the Credit Agreement contained in
Section 1 of this Amendment shall be effective upon the satisfaction of each of
the conditions set forth in this Section 3.
4.1 EXECUTION AND DELIVERY. The Borrower and each Guarantor shall have
executed and delivered this Amendment, and other required documents, all in form
and substance satisfactory to the Agent;
4.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Borrower under this Amendment are true and correct in all material
respects as of such date, as if then made (except to the extent that such
representations and warranties related solely to an earlier date);
4.3 NO EVENT OF DEFAULT. No Event of Default shall have occurred and be
continuing nor shall any event have occurred or failed to occur which, with the
passage of time or service of notice, or both, would constitute an Event of
Default;
4.4 WORK FEE. Agent shall have received, for the benefit of the Lenders
executing and delivering this Amendment to Borrower on or before 5:00 p.m.
(Chicago time) on Wednesday, July 16, 2003, a work fee of $5,000 for each such
Lender.
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4.5 OTHER DOCUMENTS. The Agent shall have received such other
instruments and documents incidental and appropriate to the transaction provided
for herein as the Agent or its counsel may reasonably request, and all such
documents shall be in form and substance satisfactory to the Agent;
4.6 LEGAL MATTERS SATISFACTORY. All legal matters incident to the
consummation of the transactions contemplated hereby shall be reasonably
satisfactory to special counsel for the Agent retained at the expense of
Borrower.
SECTION 5. MISCELLANEOUS.
5.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants that all factual information, if any, heretofore and
contemporaneously furnished by or on behalf of Borrower to Agent for purposes of
or in connection with this Amendment does not contain any untrue statement of a
material fact or omit to state any material fact necessary to keep the
statements contained herein or therein from being misleading. Each of the
foregoing representations and warranties shall constitute a representation and
warranty of Borrower made under the Credit Agreement, and it shall be an Event
of Default if any such representation and warranty shall prove to have been
incorrect or false in any material respect at the time given. Each of the
representations and warranties made under the Credit Agreement (including those
made herein) shall survive and not be waived by the execution and delivery of
this Amendment or any investigation by Lenders.
5.2 INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless
the Lenders and their respective officers, employees, agents, attorneys and
representatives (singularly, an "Indemnified Party", and collectively, the
"Indemnified Parties") from and against any loss, cost, liability, damage or
expense (including the reasonable fees and out-of-pocket expenses of counsel to
the Lender, including all local counsel hired by such counsel) ("Claim")
incurred by the Lenders in investigating or preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect of
any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law, federal or state environmental
law, or any other statute of any jurisdiction, or any regulation, or at common
law or otherwise, which is alleged to arise out of or is based upon any acts,
practices or omissions or alleged acts, practices or omissions of the Borrower
or its agents or arises in connection with the duties, obligations or
performance of the Indemnified Parties in negotiating, preparing, executing,
accepting, keeping, completing, countersigning, issuing, selling, delivering,
releasing, assigning, handling, certifying, processing or receiving or taking
any other action with respect to the Loan Documents and all documents, items and
materials contemplated thereby even if any of the foregoing arises out of an
Indemnified Party's ordinary negligence. The indemnity set forth herein shall be
in addition to any other obligations or liabilities of the Borrower to the
Lenders hereunder or at common law or otherwise, and shall survive any
termination of this Amendment, the expiration of the Loan and the payment of all
indebtedness of the Borrower to the Lenders hereunder and under the Notes,
provided that the Borrower shall have no obligation under this section to the
Lenders with respect to any of the foregoing arising out of the gross negligence
or willful misconduct of the Lenders. If any Claim
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is asserted against any Indemnified Party, the Indemnified Party shall endeavor
to notify the Borrower of such Claim (but failure to do so shall not affect the
indemnification herein made except to the extent of the actual harm caused by
such failure). The Indemnified Party shall have the right to employ, at the
Borrower's expense, counsel of the Indemnified Parties' choosing and to control
the defense of the Claim. The Borrower may at its own expense also participate
in the defense of any Claim. Each Indemnified Party may employ separate counsel
in connection with any Claim to the extent such Indemnified Party believes it
reasonably prudent to protect such Indemnified Party. THE PARTIES INTEND FOR THE
PROVISIONS OF THIS SECTION TO APPLY TO AND PROTECT EACH INDEMNIFIED PARTY FROM
THE CONSEQUENCES OF STRICT LIABILITY IMPOSED OR THREATENED TO BE IMPOSED ON ANY
INDEMNIFIED PARTY AS WELL AS FROM THE CONSEQUENCES OF ITS OWN NEGLIGENCE,
WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE, CONTRIBUTING, OR CONCURRING CAUSE OF
ANY CLAIM, BUT NOT FROM ANY PORTION OF SUCH CLAIM ARISING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNIFIED PARTY.
5.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
5.4 WRITTEN CREDIT AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED,
REPRESENTS THE FINAL AGREEMENT BETWEEN AND AMONG 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 BETWEEN AND AMONG THE
PARTIES.
5.5 NO IMPAIRMENT. Borrower acknowledges and agrees that the renewal,
extension and amendment of the Credit Agreement shall not be considered a
novation of account or new contract but that all existing rights, titles,
powers, and estates in favor of the Lenders constitute valid and existing
obligations in favor of the Lenders. Borrower confirms and agree that (a)
neither the execution of this Fourth Amendment nor any other Loan Document nor
the consummation of the transactions described herein and therein shall in any
way effect, impair or limit the covenants, liabilities, obligations and duties
of the Borrower under the Loan Documents and (b) the obligations evidenced and
secured by the Loan Documents continue in full force and effect.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to
Credit Agreement to be duly executed as of the date first above written.
BORROWER:
RANGE RESOURCES CORPORATION
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
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LENDERS:
BANK ONE, NA, a national banking
association (Main Office Chicago) as a
Lender and Administrative Agent
By: /s/ XXXXXX X. BOTH
-----------------------------------
Name: Xxxxxx X. Both
Title: Director, Capital Markets
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BANK OF SCOTLAND
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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JPMORGAN CHASE BANK
By: /s/ XXXXXX X. XXXXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Managing Director
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COMPASS BANK
By: /s/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
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CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ PHILLPPE SOUSTRA
------------------------------------
Name: Phillppe Soustra
Title: Executive Vice President
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FLEET NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
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FORTIS CAPITAL CORP.
By: /s/ XXXXXXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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NATEXIS BANQUES POPULAIRES
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Group Manager
By: /s/ XXXXXX XXXXX
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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COMERICA BANK-TEXAS
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President - Texas
Division
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CONSENT AND REAFFIRMATION
The undersigned (each a "Guarantor") hereby (i) acknowledges receipt of a
copy of the foregoing Fourth Amendment to Amended and Restated Credit Agreement
(the "Fourth Amendment"); (ii) consents to Borrower's execution and delivery
thereof; (iii) agrees to be bound thereby; (iv) affirms that nothing contained
therein shall modify in any respect whatsoever its guaranty of the obligations
of the Borrower to Lenders pursuant to the terms of its Guaranty in favor of
Agent and the Lenders (the "Guaranty") and (v) reaffirms that the Guaranty is
and shall continue to remain in full force and effect. Although Guarantor has
been informed of the matters set forth herein and has acknowledged and agreed to
same, Guarantor understands that the Lenders have no obligation to inform
Guarantor of such matters in the future or to seek Guarantor's acknowledgment or
agreement to future amendments or waivers, and nothing herein shall create such
duty.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of the Fourth Amendment.
GUARANTORS:
RANGE ENERGY I, INC.
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
RANGE HOLDCO, INC.
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
RANGE PRODUCTION COMPANY
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
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RANGE ENERGY VENTURES
CORPORATION, a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
GULFSTAR ENERGY, INC.
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
RANGE ENERGY FINANCE CORPORATION
a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
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