EXHIBIT 10.1.2
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(hereinafter referred to as the "Amendment") executed as of the 4th day of
September, 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 additional offering of convertible debt or equity securities
and that such securities will be exchanged for, or the proceeds of such
securities will be used to redeem the Trust Convertible Preferred Securities and
to provide working capital for Borrower (the "Securities Offering"); and
WHEREAS, certain provisions of the Credit Agreement prohibit the
Borrower from consummating the Securities Offering without the express written
consent of Agent and the Super Majority Lenders; and
i WHEREAS, the Borrower has requested the Agent and the Lenders to (i)
consent to the consummation of the Securities 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:
August Refinancing Securities is used herein as defined in Section
13(h)(viii) hereof.
Fifth Amendment to Credit Agreement means that certain Fifth Amendment
to Amended and Restated Credit Agreement, dated September 4, 2003, by and among
the Borrower, Agent and the Lenders.
Permitted Preferred Stock means any and all shares, interests,
participations or other equivalents of capital stock of Borrower that are
designated as preferred stock and issued during the period from September 1,
2003 to September 30, 2003; provided that (i) the issue price of all such
preferred stock together with the principal amount of all Refinancing
Indebtedness issued pursuant to clause (viii) of Section 13(h) hereof during
such period does not exceed $60,000,000 in the aggregate, (ii) such preferred
stock is exchanged for, or the Refinancing Net Proceeds of such preferred stock
are applied to the redemption or refinancing of, other Junior Securities in
accordance with clause (iii) of Section 13(i) and clause (viii) of Section 13(h)
hereof as if such preferred stock were Refinancing Indebtedness, and (iii) such
preferred stock, 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, (A) does not mature or is not mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is not redeemable at the sole option of
the holder thereof, in whole or in part, on or prior to September 1, 2013, and
(B) does not require the payment of a cash dividend in excess of 6 1/4 % per
annum on the issuance price thereof.
September Refinancing Securities is used herein as defined in Section
13(h)(viii) hereof.
1.2 AMENDED DEFINITION. Each of the following definitions in
Section 1 of the Credit Agreement shall be amended as follows:
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 or
capital stock 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 and the Permitted Preferred Stock.
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 in its
entirety to read as follows:
(ii) Quarterly Financial Statements. As soon as available, and in
any event within forty-five (45) days after the end of each fiscal quarter of
each year, the quarterly unaudited, (i) consolidated and consolidating Financial
Statements of Borrower and each Guarantor, and (ii) the unconsolidated quarterly
Financial Statements of Borrower, all such Financial Statements to be prepared
in accordance with GAAP, together with a report demonstrating, in reasonable
detail, the use of the Refinancing Net Proceeds and Permitted Preferred Stock
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 exchange of such Refinancing Securities
for, or 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) and clauses (iii) and (iv) of Section 13(i)
during such fiscal quarter and cumulatively since the issuance of the
Refinancing Securities, (y) the amount of Refinancing Securities issued in
exchange for other Junior Securities during such fiscal quarter and cumulatively
since the issuance of the Refinancing Securities and (z) the amount of
Refinancing Net Proceeds and Permitted Preferred Stock remaining as of the end
of such fiscal quarter after giving effect to any Refinancing Securities
exchanged for any other Junior Securities.
1.4 AMENDMENT TO DEBTS, GUARANTIES AND OTHER OBLIGATIONS. Clause
(viii) of Section 13(h) of the Credit Agreement shall be and it hereby is
amended in its entirety to read as follows:
(viii) the incurrence by Borrower, (1) between July 15, 2003 and
August 31, 2003, of unsecured indebtedness in an aggregate principal amount not
to exceed $100,000,000 (the "August Refinancing Securities") and (2) between
September 1, 2003 and September 30, 2003, of unsecured indebtedness that
together with any Permitted Preferred Stock issued during such period does not
exceed $60,000,000 (the "September Refinancing Securities"); provided that with
respect to the foregoing subclauses (1) and (2) (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 (x) January 1, 2010, with respect to the August Refinancing
Securities and (y) September 1, 2013 with respect to the September Refinancing
Securities, (D) the annual interest rate with respect to such indebtedness is
fixed at a rate that is less than or equal to (x) 8.5% per annum with respect to
the August Refinancing Securities and (y) 6 1/4% per annum with respect to the
September Refinancing Securities, and, with respect to the foregoing subclause
(x) and (y) 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 Notes not later than sixty (60) days after the first
incurrence 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 Convertible Subordinated
Debentures or the Trust Convertible Preferred Securities) are used to either (x)
refinance, repay, defease, or redeem the Trust Convertible Preferred Securities
and so long as
no Trust Convertible Preferred Securities are then outstanding to refinance,
repay, defease or redeem the Convertible Subordinated Debentures or the August
Refinancing 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
1.5 AMENDMENT TO RESTRICTED PAYMENTS. Clause (iii) of Section
13(i) of the Credit Agreement shall be and it hereby is amended in its entirety
to read as follows:
(iii) the redemption or defeasance of the 8.75% Senior Subordinated
Notes, the Convertible Subordinated 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, the exchange of
Refinancing Securities for the Trust Convertible Preferred Securities and so
long as no Trust Convertible Preferred Securities are outstanding, the exchange
of Refinancing Securities for the Convertible Subordinated Debentures or the
August Refinancing Securities; provided that no Default or Event of Default has
occurred and is continuing or would result therefrom; or
1.6 AMENDMENT TO ISSUANCE OF PREFERRED STOCK. Section 13(p) of the
Credit Agreement shall be and it hereby is amended in its entirety to read as
follows:
(p) Issuance of Preferred Stock. Except for the Permitted
Preferred Stock or 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 REAFFIRMATION OF BORROWING BASE AND ADJUSTMENT WAIVER. As of
the date hereof, the Borrowing Base is $170,000,000 and the waiver set forth in
Section 1.8 of the Fourth Amendment to Credit Agreement shall apply to any
redemption of any Junior Securities with the proceeds of any Refinancing
Securities issued after the date hereof.
1.8 WORK FEE. Each Lender executing and delivering this Amendment
to Agent on or before 5:00 p.m. (Chicago time) on Thursday, September 4, 2003,
shall be deemed to have earned a work fee of $5,000 upon the date of the first
issuance of any September Refinancing Securities and such fee shall be due and
payable on such date; provided, that if no September Refinancing Securities are
ever issued, no Lender shall be deemed to have earned a work fee with respect to
the execution and delivery of this Amendment.
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 Securities
Offering in accordance with the terms and conditions of the Credit Agreement, as
amended hereby, and (ii) the execution and delivery by Borrower of any and all
agreements, documents and instruments necessary to evidence the Securities
Offering (the "Securities 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 Securities Offering and the execution and delivery of
the Securities 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 Securities Offering in accordance with the terms of
the Credit Agreement, as amended hereby, 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 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;
4.5 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 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. Signature pages delivered by facsimile
shall be effective as originals.
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 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]
IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to
Credit Agreement to be duly executed as of the date first above written.
BORROWER:
RANGE RESOURCES CORPORATION
a Delaware corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
LENDERS:
BANK ONE, NA, a national
banking association (Main
Office Chicago) as a Lender
and Administrative Agent
By:_________________________________________
Name: Wm. Xxxx Xxxxxxx
Title: Director, Capital Markets
BANK OF SCOTLAND
By:_________________________________________
Name:______________________________________
Title:______________________________________
JPMORGAN CHASE BANK
By:_________________________________________
Name:_______________________________________
Title:______________________________________
COMPASS BANK
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: ________________________________________
Name:_______________________________________
Title:______________________________________
FLEET NATIONAL BANK
By:_________________________________________
Name:_______________________________________
Title______________________________________
FORTIS CAPITAL CORP.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
NATEXIS BANQUES POPULAIRES
By:_________________________________________
Name:_______________________________________
Title:______________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
COMERICA BANK
(successor by merger with
Comerica Bank-Texas)
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CONSENT AND REAFFIRMATION
The undersigned (each a "Guarantor") hereby (i) acknowledges receipt of
a copy of the foregoing Fifth 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 Fifth Amendment.
GUARANTORS:
RANGE ENERGY I, INC.
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
RANGE HOLDCO, INC.
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
RANGE PRODUCTION COMPANY
a Delaware corporation
By: ________________________________________
Name:_______________________________________
Title:______________________________________
RANGE ENERGY VENTURES
CORPORATION, a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
GULFSTAR ENERGY, INC.
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
RANGE ENERGY FINANCE CORPORATION
a Delaware corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
