FOURTH AMENDMENT TO TERM CREDIT AGREEMENT
EXHIBIT
10.1
FOURTH
AMENDMENT TO
THIS
FOURTH AMENDMENT TO TERM CREDIT AGREEMENT (this “Fourth
Amendment”)
is entered into effective as the Fourth Amendment Closing Date (as defined
below) between RANCHER ENERGY
CORP., a Nevada corporation (“Borrower”),
and GASROCK CAPITAL LLC,
a Delaware limited liability company (“Lender”). Capitalized
terms used but not defined in this Fourth Amendment have the meaning given them
in the Credit Agreement (as defined below).
RECITALS
A. Borrower
and Lender entered into that certain Term Credit Agreement dated as of October
16, 2007 (as amended by that certain First Amendment thereto dated October 22,
2008, that certain Second Amendment thereto dated April 30, 2009, that certain
Third Amendment thereto dated May 8, 2009, and as amended, restated or
supplemented from time to time, the “Credit
Agreement”).
B. Borrower
and Lender have agreed to amend the Credit Agreement, subject to the terms and
conditions of this Fourth Amendment.
AGREEMENT
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the undersigned hereby agree as follows:
1. Specific Amendments to
Credit Agreement.
Section 1.1, Defined
Terms, of the Credit Agreement is hereby amended by revising the
following definition in its entirety to read as follows:
“Maturity Date” means
the earliest of (a) May 19, 2009, (b) the date on which all Obligations (other
than the obligations under any ORRI Conveyance and indemnity obligations and
similar obligations that expressly survive the termination of the Loan
Documents) have been paid in full and this Agreement has terminated, and (c) the
date on which Lender notifies Borrower of the acceleration of payments of all or
any portion of the Obligations based on the occurrence of an Event of
Default.
Section 1.1, Defined
Terms, of the Credit Agreement is hereby amended by adding the following
definition in its proper alphabetical order thereto:
“Fourth
Amendment Closing Date” means May 13, 2009.
2. Conditions to Closing Fourth
Amendment. Unless specifically waived in writing by Lender,
this Fourth Amendment shall be effective once Lender shall have received
the following
documentation, each in form and substance satisfactory to Lender and its legal
counsel, in their sole discretion:
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(a) this
Fourth Amendment executed by Borrower and Lender;
and
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(b) such
other documents as Lender may reasonably
request.
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3. Representations and
Warranties. Borrower represents and warrants to Lender that
(a) it possesses all requisite power and authority to execute, deliver and
comply with the terms of this Fourth Amendment, (b) this Fourth Amendment has
been duly authorized and approved by all requisite corporate action on the part
of Borrower, (c) no other consent of any Person (other than Lender) is required
for this Fourth Amendment to be effective and (d) the execution and delivery of
this Fourth Amendment does not violate its organizational
documents. The representations and warranties made in this Fourth
Amendment shall survive the execution and delivery of this Fourth
Amendment. No investigation by Lender is required for Lender to rely
on the representations and warranties in this Fourth Amendment.
4. Scope of Amendment;
Reaffirmation; Release. All references to the Credit Agreement
shall refer to the Credit Agreement as amended by this Fourth
Amendment. Except as affected by this Fourth Amendment, the Loan
Documents are unchanged and continue in full force and
effect. However, in the event of any inconsistency between the terms
of the Credit Agreement (as amended by this Fourth Amendment) and any other Loan
Document, the terms of the Credit Agreement shall control and such other
document shall be deemed to be amended to conform to the terms of the Credit
Agreement. Borrower hereby reaffirms its obligations under the Loan
Documents to which it is a party and agrees that all Loan Documents to which
they are a party remain in full force and effect and continue to be legal,
valid, and binding obligations enforceable in accordance with their terms (as
the same are affected by this Fourth Amendment). Borrower hereby
releases Lender from any liability for actions or omissions (other than any
liability resulting from Lender’s gross negligence or willful misconduct) in
connection with the Credit Agreement and the other Loan Documents prior to the
Fourth Amendment Closing Date.
5. Miscellaneous.
(a) No Waiver of
Defaults. This Fourth Amendment does not constitute (i) a
waiver of, or a consent to, (A) any provision of the Credit Agreement or any
other Loan Document not expressly referred to in this Fourth Amendment, or (B)
any present or future violation of, or default under, any provision of the Loan
Documents, or (ii) a waiver of Lender’s right to insist upon future compliance
with each term, covenant, condition and provision of the Loan
Documents.
(b) Form. Each
agreement, document, instrument or other writing to be furnished Lender under
any provision of this Fourth Amendment must be in form and substance
satisfactory to Lender and its counsel.
(c) Headings. The
headings and captions used in this Fourth Amendment are for convenience only and
will not be deemed to limit, amplify or modify the terms of this Fourth
Amendment, the Credit Agreement, or the other Loan Documents.
(d) Costs, Expenses and
Attorneys’ Fees. Borrower agrees to pay or reimburse Lender on
demand for all its reasonable out-of-pocket costs and expenses incurred in
connection with the preparation, negotiation, and execution of this Fourth
Amendment, including, without limitation, the reasonable fees and disbursements
of Lender’s counsel.
(e) Successors and
Assigns. This Fourth Amendment shall be binding upon and inure
to the benefit of each of the undersigned and their respective successors and
permitted assigns.
(f) Multiple
Counterparts. This Fourth Amendment may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document. All counterparts must be construed together to
constitute one and the same instrument. This Fourth Amendment may be
transmitted and signed by facsimile or portable document format
(PDF). The effectiveness of any such documents and signatures shall,
subject to applicable law, have the same force and effect as manually-signed
originals and shall be binding on Borrower and Lender. Lender may
also require that any such documents and signatures be confirmed by a
manually-signed original; provided that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
or PDF document or signature.
(g) Governing
Law. THIS FOURTH AMENDMENT AND THE OTHER LOAN DOCUMENTS MUST
BE CONSTRUED, AND THEIR PERFORMANCE ENFORCED, UNDER TEXAS LAW.
(h) Arbitration. Upon
the demand of any party to this Fourth Amendment, any dispute shall be resolved
by binding arbitration as provided for in Section
12.1 of the Credit Agreement.
(i) Entirety. The Loan Documents (as amended
hereby) Represent the Final Agreement Between Borrower and Lender and May Not Be
Contradicted by Evidence of Prior, Contemporaneous, or Subsequent Oral
Agreements by the Parties. There Are No Unwritten Oral Agreements
among the Parties.
[Signatures
appear on the next page.]
IN
WITNESS WHEREOF, this Fourth Amendment is executed as of the Fourth Amendment
Closing Date.
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BORROWER:
a
Nevada corporation
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By:
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/s/ Xxxx Works | |
| Xxxx Works | |||
| President & Chief Executive Officer | |||
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LENDER:
GASROCK CAPITAL
LLC,
a Delaware limited
liability company
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By:
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/s/ Xxxxxxxx Xxxx Xxxx | |
| Xxxxxxxx Xxxx Xxxx | |||
| Principal | |||
GUARANTOR’S
CONSENT AND AGREEMENT
TO
FOURTH
AMENDMENT TO TERM CREDIT AGREEMENT
Guarantor
executes this Fourth Amendment for purposes of acknowledging and agreeing to the
Credit Agreement, as amended by this Fourth Amendment, and hereby expressly
ratifies and confirms its liability under its Guaranty dated October 16, 2007
executed in favor of Lender and confirms that such liability continues in full
force and effect with respect to the indebtedness of Borrower covered by the
Credit Agreement, as amended by this Fourth Amendment, as same may be further
restated, amended, modified, renewed, or rearranged from time to
time.
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RANCHER
ENERGY WYOMING, LLC
a
Wyoming limited liability company
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By:
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RANCHER ENERGY CORP., | |
| its sole Manager | |||
| By: | Xxxx Works | ||
| Xxxx Works | |||
| President & Chief Executive Officer | |||
