EXHIBIT 10.5(c)
SECOND AMENDMENT TO CREDIT AGREEMENT BY AND
BETWEEN INDIAN OIL COMPANY
AND BANK ONE, OKLAHOMA, N.A.
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") is made
effective the 26th day of February, 1999 by and between INDIAN OIL COMPANY, an
Oklahoma corporation. (the "Borrower") and BANK ONE, OKLAHOMA, N.A. (the
"Lender").
W I T N E S S E T H:
WHEREAS, on December 22, 1997, Borrower and Lender entered into that
certain Credit Agreement (the "Original Agreement") whereby Lender provided
Borrower with a reducing, revolving line of credit in an amount, subject to a
Borrowing Base, which shall not exceed $50,000,000.00 as evidenced by the Note.
WHEREAS, on August 10, 1998 Borrower and Lender amended the Original
Agreement for the first time (the "First Amendment") in order to: (i) change the
Debt Service Coverage ratio calculation; (ii) waive the occurrence of certain
events of default; and (iii) certain other changes more particularly set forth
therein (the Original Agreement as amended by the First Amendment is referred to
herein as the "Agreement").
WHEREAS, the obligations described in the Agreement are secured by, among
other things not specifically set forth herein, certain Oil and Gas Properties;
and
WHEREAS, all capitalized terms not otherwise defined herein shall have
those meanings assigned to such terms in the Agreement;
WHEREAS, Borrower and Lender now desire to amend the Original Agreement for
the second time in order to (i) reduce the Borrower's Borrowing Base
availability from $24,000,000.00 to $20,000,000.00; (ii) extend the deadline for
Borrower to have completed a $12,000,000.00 equity offering until March 1, 1999;
(iii) extend the deadline for Borrower to provide an audited financial
statement for the fiscal year ending December 31, 1997 until April 10, 1999; and
(iv) waive the occurrence of certain events of default (the Original Agreement
as amended by the First and Second Amendments is referred to herein as the
"Agreement").
NOW THEREFORE, 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, the Borrower and the Lender hereby
agree to amend the agreement as follows:
A. CHANGES TO THE AGREEMENT
1. Section 6.25 of the Agreement, Equity Infusion, is hereby amended
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and restated in its entirety in order to extend the date to provide an equity
infusion as follows:
6.25. Equity Infusion. Obtain an infusion of equity capital of not
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less than $12,000,000.00 into Borrower on or before March 1, 1999.
B. NOTICES AND WAIVERS.
Borrower is hereby notified of the following occurrences and the Lender
hereby provides the following waivers.
1. Borrowing Base. Pursuant to Section 2.9 of the Agreement,
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Borrower and Lender hereby affirm the Borrowing Base at $20,000,000.00 and the
Monthly Borrowing Base Reduction at $0 until March 1, 1999. Furthermore, the
Lender has calculated the Half Life of Borrower's Oil and Gas Properties
(defined below) to be 84 months until the next determination of the Borrowing
Base.
2. Annual Financial Statement. Lender hereby provides Borrower with
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an additional waiver of the default created by Borrower's failure to comply with
Section 6.3 of the Agreement by not providing Lender with its audited, annual
financial statements by the 105th day following the close of its fiscal year.
Borrower hereby agrees to provide the financial statements required by Section
6.3 for year ending December 31, 1997 on or before April 10, 1999. Borrower and
Lender hereby agree that any material adverse change in the audited financial
statements from the unaudited financial statements previously provided shall
constitute an additional Event of Default under the Agreement as hereby amended.
3. Equity Offering. Lender hereby provides Borrower with an
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additional waiver of the default created by Borrower's failure to comply with
Section 6.25 of the Agreement by not obtaining a $12,000,000.00 infusion of
equity by the previously extended date of December 1, 1998.
4. Tangible Net Worth. Lender hereby provides Borrower with a one-
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time waiver of the default created by Borrower's failure to comply with Section
7.3 of the Agreement by not maintaining a Tangible Net Worth of, at least,
$1,700,000.00 for the quarter ending September 30, 1998 for the quarters ending
June 30, 1998 and September 30, 1998.
C. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Lender that:
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1. Borrower is a corporation, duly organized, legally existing, and
in good standing under the laws of the State of Oklahoma, and is duly qualified
as a foreign corporation and in good standing in all other states wherein the
nature of its business or its assets make such qualification necessary.
2. Borrower's execution and delivery of this Amendment and
performance of its obligations hereunder: (a) are and will be within its
corporate powers; (b) are duly authorized by its board of directors; (c) are not
and will not be in contravention of any law, statute, rule or regulation, the
terms of its articles or certificates of incorporation and bylaws, nor of any
preferred stock provision, indenture, agreement or undertaking to which
Corporation or any of its properties are bound; (d) do not require any consent
or approval (including governmental) which has not been given; and (e) will not
result in the imposition of Liens, charges or encumbrances on any of its
properties or assets, except those in favor of Lender hereunder.
3. This Amendment, when duly executed and delivered, will constitute
the legal, valid and binding obligations of each Borrower, enforceable in
accordance with its terms.
4. All financial statements, balance sheets, income statements and
other financial data which have been or are hereafter furnished to Lender by
each Borrower to induce Lender to make the loans hereunder due, and as to
subsequent financial statements will, fairly represent each Borrower's financial
condition as of the dates for which the same are furnished. All such financial
statements, reports, papers and other data furnished to Lender are and will be,
when furnished: prepared in accordance with generally accepted accounting
principles consistently applied; accurate and correct in all material respects;
and complete insofar as completeness may be necessary to give Lender a true and
accurate knowledge of the subject matter. Since the date of the last such
financial statements, no material adverse change has occurred in the operations
or condition, financial or otherwise and other financial data provided to
Lender; of either Borrower, nor, to the best of their knowledge, has either
Borrower incurred, any material liabilities or made any material investment or
guarantees, direct or contingent, in any single case or in the aggregate, which
has not been disclosed to Lender.
5. The Borrower is the sole and lawful owner of the Collateral,
pledged, mortgaged or assigned by it, and Borrower has, and as to after acquired
property or New Properties will have, good right to cause the Collateral to be
hypothecated to Lender as security for the Obligations.
6. All of Borrower's other representations and warranties set forth
in Sections 5.1 through 5.22 of the Agreement are true and correct on and as of
the date hereof with the same effect as though made and repeated by Borrower as
of the date hereof.
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D. CONDITIONS
Lender's obligations under the Agreement, as hereby amended, is subject to
the following conditions:
1. Lender and Borrower shall have executed and delivered this
Amendment.
2. Borrower's representations and warranties set forth in Section
C hereof shall be true and correct on and as of the date hereof, and the date of
any subsequent advance with the same effect as though such representation and
warranty had been on and as of such date.
3. Borrower shall have satisfied all conditions set forth in Section
4.1 of the Agreement.
4. As of the date hereof, and the date of any subsequent Advance, no
Event of Default nor any event which, with the giving of notice or lapse of
time, would constitute an Event of Default shall have occurred and be
continuing.
E. OTHER COVENANTS AND MISCELLANEOUS TERMS
1. Except as expressly amended and supplemented hereby, the
Agreement shall remain unchanged and in full force and effect, and the same is
hereby ratified and extended.
2. The Obligations, including but not limited to the indebtedness
evidenced by the Note executed in conjunction with the Agreement, shall continue
to be secured by the Collateral, without interruption or impairment of any kind.
3. Borrower shall make, execute or endorse, and acknowledge and
deliver or file or cause the same to be done, all such vouchers, invoices,
notices, certifications and additional agreements, undertakings, conveyances,
deeds of trusts, mortgages, transfers, assignments, financing statements or
other assurances, and take any and all such other action, as Lender may, from
time to time, deem reasonably necessary or proper in connection with any of the
Loan Documents and the obligations of Borrower assuring and confirming unto
Lender all or any part of the security for any such obligation. In connection
herewith, Lender may require Borrower to execute additional mortgages or deeds
of trust pursuant to the terms of the Agreement.
4. The Borrowers hereby agrees to pay all reasonable attorney fees
and legal expenses incurred by Lender in preparation, execution and
implementation of this
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Amendment and any mortgages, deeds of trust, security agreements, pledge
agreements or any amendments thereto.
5. This Amendment shall be construed in accordance with and governed
by the laws of the State of Oklahoma, and shall be binding on and inure to the
benefit of the Borrower and Lender, and their respective successors and assigns.
All obligations of the Borrower under the Agreement and all rights of Lender and
any other holder of the Notes, whether expressed herein or in any Note, shall be
in addition to and not in limitation of those provided by applicable law.
Borrower irrevocably agrees that, subject to Lender's sole election, all suits
or proceedings arising from or related to the Agreement, as amended, or the
Notes may be litigated in courts (whether State or Federal) sitting in Oklahoma
City, Oklahoma, and the Borrower hereby irrevocably waives any objection to such
jurisdiction and venue.
6. This Amendment may be executed in as many counterparts as are
deemed necessary or convenient, and it shall not be necessary for the signature
of more than any one party to appear on any single counterpart. Each
counterpart shall be deemed an original, but all shall be construed together as
one and the same instrument. The failure of any party to sign shall not affect
or limit the liability of any party executing any such counterpart.
BORROWER: INDIAN OIL COMPANY,
an Oklahoma corporation
__________________________________________
By: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
LENDER: BANK ONE, OKLAHOMA, N.A.
__________________________________________
By: Xxxx X. Xxxx, Xx.
Title: Sr. Vice President
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