NOVEMBER 30, 2005 AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT
NOVEMBER
30, 2005 AMENDMENT TO AMENDED AND RESTATED
THIS
NOVEMBER 30, 2005 AMENDMENT TO AMENDED AND RESTATED FINANCING
AGREEMENT
(“this
Agreement”)
entered into on this 29th day of March, 2006, to be effective, unless another
effective date is otherwise herein specified, as of November 30, 2005
(“Effective
Date”),
is by
and among The CIT Group Business Credit, Inc. (“CIT”)
and
SunTrust Bank (“SunTrust”),
as
Lenders (“Lenders”),
CIT,
as administrative and collateral agent (“Agent”)
and
Xxxxxx-Xxxxxxx Company (“Xxxxxx”)
and
Three D Oil Co. of Xxxxxxx, Inc. (“Three D”)
(Xxxxxx and Three D being herein individually referred to as a
“Company”
and
collectively referred to as the “Companies”).
RECITALS
A. Companies,
Agent and Lenders entered into that certain Amended and Restated Financing
Agreement, dated as of April 8, 2005, together with all riders, addenda,
exhibits and other documents relating thereto (collectively, as amended from
time to time, the “Financing
Agreement”).
B. Pursuant
to the terms and conditions this Agreement, each Company, each Lender and
Agent
are willing to amend the Financing Agreement and to agree to certain other
agreements, all as hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties, intending to be legally bound, agree as follows:
ARTICLE
I
Definitions
1.01 Capitalized
terms used in this Agreement are defined in the Financing Agreement, as amended
hereby, unless otherwise stated.
ARTICLE
II
Agreements
2.01 Amendments
to Financing Agreement.
Agent,
Lenders and Companies hereby amend the Financing Agreement as
follows:
(a) Amendment
to Section 1 of Financing Agreement; Addition of New
Definition.
Effective as of the Effective Date, the following new definition is hereby
added
to Section 1 of the Financing Agreement, such new definition to be inserted
in its proper alphabetical order and to read in its entirety as
follows:
“November
30, 2005 Amendment
shall
mean that certain November 30, 2005 Amendment to Amended and Restated Financing
Agreement executed by Companies, Lenders and Agent.”
(b) Amendment
and Restatement of Paragraph 7.10(b) of Section 7 of the Financing
Agreement.
Effective as of the Effective Date, Paragraph 7.10(b) of Section 7 of
the Financing Agreement is amended and restated to read in its entirety as
follows:
“(b) (i)
Maintain as of the last day of November, 2005, for the one calendar month
period
ending on such day, Daily Average Availability of at least $400,000 and,
(ii)
thereafter, maintain as of the last day of each calendar month, beginning
with
December, 2005, for the one calendar month period ending on such day, Daily
Average Availability of at least $400,000”; and
(c) Amendment
and Restatement of Paragraph 8.2 of Section 8 of the Financing
Agreement.
Effective as of the Effective Date, Paragraph 8.2 of Section 8 of the
Financing Agreement is amended and restated to read in its entirety as
follows:
“8.2
Notwithstanding any provision in this Section 8, the first $3,000,000
outstanding under the Revolving Loans at any time prior to Companies maintaining
$3,500,000 of Daily Average Availability for a consecutive three-month period,
shall bear interest at the Chase Bank Rate, plus
3.00%
per annum to be payable as set forth above.”
ARTICLE
III
No
Waivers
3.01 No
Waivers.
Nothing
contained herein shall be construed as a waiver by Agent or Lenders of any
covenant or provision of the Financing Agreement or any other Loan Document
or
any other contract or instrument between any Company, Agent or Lenders, and
Agent’s or Lenders’ failure at any time or times hereafter to require strict
performance by any Company of any provision thereof shall not waive, affect
or
diminish any right of Agent or Lenders thereafter to demand strict compliance
therewith. Each of each Lender and Agent hereby reserves all rights granted
under the Financing Agreement, and each other Loan Document and any other
contract or instrument between any Company and Agent or Lenders.
ARTICLE
IV
Conditions
Precedent
4.01 Conditions
to Effectiveness.
The
effectiveness of this Agreement is subject to the satisfaction of the following
conditions precedent, unless specifically waived in writing by
Agent:
2
(a) Agent
shall have received all of the following, each in form and substance
satisfactory to Agent (each of which shall be deemed to be a “Loan
Document”
for
purposes of the Financing Agreement):
(i) This
Agreement, duly executed by Companies;
(ii) Consent,
Ratification and Release executed by Xxxxxx X. Xxxxx, United Fuel & Energy
Corporation, a Texas corporation, and United Fuel & Energy Corporation, a
Nevada corporation; and
(iii) Such
additional documents, instruments and information as Agent may
request.
(b) The
representations and warranties contained herein and in the Financing Agreement,
and the other Loan Documents, as each is amended hereby, shall be true and
correct as of the date hereof, as if made on the date hereof;
(c) No
Default or Event of Default shall have occurred and be continuing, unless
such
Event of Default has been otherwise specifically waived in writing by Lenders;
and
(d) All
corporate proceedings taken in connection with the transactions contemplated
by
this Agreement and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Agent and its legal counsel.
ARTICLE
V
Ratifications,
Representations and Warranties
5.01 Ratifications.
The
terms and provisions set forth in this Agreement shall modify and supersede
all
inconsistent terms and provisions set forth in the Financing Agreement and
the
other Loan Documents, and, except as expressly modified and superseded by
this
Agreement, the terms and provisions of the Financing Agreement and the other
Loan Documents are ratified and confirmed and shall continue in full force
and
effect. Each of the parties hereto agrees that the Financing Agreement and
the
other Loan Documents, as amended hereby, shall continue to be legal, valid,
binding and enforceable in accordance with their respective terms.
5.02 Representations
and Warranties.
Each
Company hereby represents and warrants to Agent and Lenders that (a) the
execution, delivery and performance of this Agreement and any and all other
Loan
Documents executed and/or delivered in connection herewith have been authorized
by all requisite corporate action on the part of each of each Company and
will
not violate the Articles of Incorporation or Bylaws of any Company; (b) the
representations and warranties contained in the Financing Agreement, as amended
hereby, and any other Loan Document are true and correct on and as of the
date
hereof and on and as of the date of execution hereof as though made on and
as of
each such date; and (c) no Default or Event of Default under the Financing
Agreement, as amended hereby, has occurred and is continuing, unless such
Default or Event of Default has been specifically waived in writing by Agent
and
Lenders. Each Company hereby represents and warrants to Agent and Lenders
that
it is in full compliance with all covenants and agreements contained in the
Financing Agreement, and the other Loan Documents, as amended
hereby.
3
ARTICLE
VI
Miscellaneous
Provisions
6.01 Survival
of Representations and Warranties.
All
representations and warranties made in the Financing Agreement or any other
Loan
Document, including, without limitation, any document furnished in connection
with this Agreement, shall survive the execution and delivery of this Agreement
and the other Loan Documents, and no investigation by Agent or any Lender
or any
closing shall affect the representations and warranties or the right of Agent
and Lenders to rely upon them.
6.02 Reference
to Financing Agreement.
Each of
the Financing Agreement and the other Loan Documents and any and all other
agreements, documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Financing
Agreement, as amended hereby, is hereby amended so that any reference in
the
Financing Agreement and such other Loan Documents to the Financing Agreement
shall mean a reference to the Financing Agreement as amended
hereby.
6.03 Expenses
of Lender.
Each
Company agrees to pay on demand all costs and expenses incurred by Agent
and
Lenders in connection with the preparation, negotiation and execution of
this
Agreement and the other Loan Documents executed pursuant hereto, and any
and all
amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Agent’s and Lenders’ legal counsel, and all
costs and expenses incurred by Agent and Lenders in connection with the
enforcement or preservation of any rights under the Financing Agreement,
as
amended hereby, or any other Loan Document, including, without limitation,
the
costs and fees of Agent’s and each Lender’s legal counsel.
6.04 Severability.
Any
provision of this Agreement held by a court of competent jurisdiction to
be
invalid or unenforceable shall not impair or invalidate the remainder of
this
Amendment and the effect thereof shall be confined to the provision so held
to
be invalid or unenforceable.
6.05 Successors
and Assigns.
This
Agreement is binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns, except no Company may assign
or
transfer any of its rights or obligations hereunder without the prior written
consent of Agent and Lenders.
6.06 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which when
so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
6.07 Effect
of Waiver.
No
consent or waiver, express or implied, by Agent or any Lender to or for any
breach of or deviation from any covenant or condition by any Company shall
be
deemed a consent to or waiver of any other breach of the same or any other
covenant, condition or duty.
4
6.08 Headings.
The
headings, captions, and arrangements used in this Agreement are for convenience
only and shall not affect the interpretation of this Agreement
6.09 Applicable
Law.
THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL
BE
DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY
AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.10 Final
Agreement.
THIS AGREEMENT, 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 BETWEEN THE PARTIES. THERE
ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
6.11 Release.
EACH COMPANY HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN
BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY
THE
“OBLIGATIONS” OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE
FROM AGENT OR ANY LENDER. EACH COMPANY HEREBY VOLUNTARILY AND KNOWINGLY RELEASES
AND FOREVER DISCHARGES AGENT AND EACH LENDER, ITS PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS,
CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN
OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR
IN PART
ON OR BEFORE THE DATE THIS AGREEMENT IS EXECUTED, WHICH ANY COMPANY MAY NOW
OR
HEREAFTER HAVE AGAINST AGENT OR ANY LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
AND
ARISING FROM ANY “REVOLVING CREDIT LOANS”, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS
AND
REMEDIES UNDER THE FINANCING AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION
FOR AND EXECUTION OF THIS AGREEMENT.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
Executed
on this 29th day of March, 2006, to be effective as of the respective date
indicated above.
XXXXXX-XXXXXXX
COMPANY
By:
/s/ Xxxxx X.
Page
Name:
Xxxxx X.
Page
Title:
Vice President &
CFO
THREE
D OIL CO. OF XXXXXXX, INC.
By:
/s/ Xxxxx X.
Page
Name:
Xxxxx X.
Page
Title:
Vice President &
CFO
ACCEPTED
at Dallas, Texas, this 29th day of March, 2006, to be effective as of the
respective date indicated above.
THE
CIT GROUP/BUSINESS CREDIT, INC., as Agent and a Lender
By:
/s/ Xxxx
Xxxxxxxx
Xxxx Xxxxxxxx, Vice President
SUNTRUST
BANK, as a Lender
By:
/s/ Xxxx
Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title:
Vice
President
CONSENT,
RATIFICATION AND RELEASE
Each
of
the undersigned hereby consents to the terms of the within and foregoing
Agreement, confirms and ratifies the terms of each document it has executed
in
connection with the Obligations (collectively, the “Documents”),
and
acknowledges that the Documents to which it is a party are in full force
and
effect and ratifies the same, that it has no defense, counterclaim, set-off
or
any other claim to diminish its liability under such Documents, that its
consent
is not required to the effectiveness of the within and foregoing Agreement,
and
that no consent by it is required for the effectiveness of any future amendment,
modification, forbearance or other action with respect to the Revolving Line
of
Credit, the Collateral, or any of the other Loan Documents.
EACH OF THE UNDERSIGNED HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES EACH OF AGENT AND EACH LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES
OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT,
OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THE AGREEMENT IS EXECUTED, WHICH THE UNDERSIGNED MAY NOW OR HEREAFTER
HAVE AGAINST AGENT OR ANY LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
AND
ARISING FROM ANY “REVOLVING CREDIT LOANS”, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS
AND
REMEDIES UNDER THE FINANCING AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION
FOR AND EXECUTION OF THIS AGREEMENT.
UNITED
FUEL & ENERGY CORPORATION, a Texas corporation
By:
/s/ Xxxxx X.
Page
Name:
Xxxxx X.
Page
Title:
Vice President &
CFO
UNITED
FUEL & ENERGY CORPORATION, a Nevada corporation
By:
/s/ Xxxxx X.
Page
Name:
Xxxxx X.
Page
Title:
Vice President &
CFO
/s/
Xxxxxx X.
Xxxxx
Xxxxxx
X. Xxxxx
