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EXHIBIT 10.25
AMENDMENT NUMBER THREE
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NUMBER THREE TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is entered into as of September 19, 2000, among
QUEEN SAND RESOURCES, INC., a corporation formed under the laws of the State of
Delaware ("QSRD"); QUEEN SAND RESOURCES, INC., a corporation formed under the
laws of the State of Nevada (the "Borrower"); each of the lenders that is a
signatory hereto (individually, a "Lender" and, collectively, the "Lenders");
FOOTHILL CAPITAL CORPORATION, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"); and ABLECO FINANCE LLC, as collateral
agent for the Lenders (in such capacity, the "Collateral Agent"), with
reference to the following facts:
A. QSRD, Borrower, the Lenders signatory thereto,
Administrative Agent and Collateral Agent, heretofore have
entered into that certain Amended and Restated Credit
Agreement, dated as of October 22, 1999, as amended by that
certain Amendment Number One to Loan and Security Agreement,
dated as of May 23, 2000, and as amended by that certain
Amendment Number Two and Waiver and Consent to Loan and
Security Agreement, dated as of June 30, 2000 (as heretofore
amended, supplemented, or otherwise modified, the
"Agreement");
B. QSRD and Borrower have requested that the Lenders amend
the Agreement to increase the L/C Commitment from $7,500,000
to $12,000,000;
C. The Lenders are willing to increase the L/C Commitment
from $7,500,000 to $12,000,000 in accordance with the terms
and conditions hereof; and
D. All capitalized terms used herein and not defined herein
shall have the meanings ascribed to them in the Agreement, as
amended hereby.
NOW, THEREFORE, in consideration of the above recitals and
the mutual premises contained herein, the Lenders signatory hereto, the
Administrative Agent, the Collateral Agent, QSRD and Borrower hereby agree as
follows:
1. AMENDMENT TO THE AGREEMENT.
The definition of "L/C Commitment" contained in Section 1.02
of the Agreement is amended and restated in its entirety to read as follows:
"L/C Commitment" at any time shall mean $12,000,000.
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2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT.
The effectiveness of this Amendment is subject to the
fulfillment, to the satisfaction of Agents and their counsel, of each of the
following conditions:
a. Collateral Agent shall have received each
of the following documents, in form and
substance satisfactory to Collateral Agent
and its counsel, duly executed, and each
such document shall be in full force and
effect:
(i) this Amendment; and
(ii) the Reaffirmation and Consent (as
hereinafter defined).
b. The representations and warranties in
Section 3 of this Amendment, the Agreement
as amended by Section 1 of this Amendment,
and the other Loan Documents shall be true
and correct in all material respects on and
as of the date hereof, as though made on
such date (except to the extent that such
representations and warranties relate
solely to an earlier date);
c. After giving effect hereto, no Event of
Default or event which with the giving of
notice or passage of time would constitute
an Event of Default shall have occurred and
be continuing on the date hereof, nor shall
result from the consummation of the
transactions contemplated herein;
d. No injunction, writ, restraining order, or
other order of any nature prohibiting,
directly or indirectly, the consummation of
the transactions contemplated herein shall
have been issued and remain in force by any
governmental authority against Borrower,
QSRD, any Subsidiary Guarantor, any Lender,
Collateral Agent, Administrative Agent, or
any of their Affiliates;
e. No material adverse change shall have
occurred in the financial condition of
Borrower, QSRD, any Subsidiary Guarantor,
or in the value of the Collateral; and
f. All other documents and legal matters in
connection with the transactions
contemplated by this Amendment shall have
been delivered or executed or recorded and
shall be in form and substance reasonably
satisfactory to Collateral Agent and its
counsel.
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3. REPRESENTATIONS AND WARRANTIES. Each of QSRD and the
Borrower hereby represents and warrants to the Agents and the Lenders that: (a)
the execution, delivery, and performance of this Amendment and of the
Agreement, as amended by this Amendment, are within its corporate powers, have
been duly authorized by all necessary corporate action, and are not in
contravention of any law, rule, or regulation, or any order, judgment, decree,
writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to
which it is a party or by which any of its properties may be bound or affected;
and (b) this Amendment and the Agreement, as amended by this Amendment,
constitute the legal, valid, and binding obligation of each of QSRD and the
Borrower, enforceable against each of QSRD and the Borrower in accordance with
their respective terms.
4. REAFFIRMATION AND CONSENT. Concurrently herewith, QSRD and
the Borrower shall cause each current Subsidiary Guarantor to execute and
deliver to the Agents the Reaffirmation and Consent attached hereto as Exhibit
A (the "Reaffirmation and Consent").
5. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. Section 12.13
of the Agreement is incorporated herein by this reference as though fully set
forth herein.
6. MISCELLANEOUS.
a. Upon the effectiveness of this Amendment,
each reference in the Agreement to "this
Agreement", "hereunder", "herein", "hereof"
or words of like import referring to the
Agreement shall mean and refer to the
Agreement as amended by this Amendment.
b. Upon the effectiveness of this Amendment,
each reference in the Loan Documents to the
"Agreement", "thereunder", "therein",
"thereof" or words of like import referring
to the Agreement shall mean and refer to
the Agreement as amended by this Amendment.
c. This Amendment may be executed in any
number of counterparts, all of which taken
together shall constitute one and the same
instrument and any of the parties hereto
may execute this Amendment by signing any
such counterpart. Delivery of an executed
counterpart of this Amendment by
telefacsimile shall be equally as effective
as delivery of a manually executed
counterpart of this Amendment. Any party
delivering an executed counterpart of this
Amendment by telefacsimile also shall
deliver a manually executed counterpart
of this Amendment but the failure to
deliver a manually executed
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counterpart shall not affect the validity,
enforceability, and binding effect of this
Amendment.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first written above.
QUEEN SAND RESOURCES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Operating Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
QUEEN SAND RESOURCES, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Address for Notices for QSRD and the
Borrower:
Queen Sand Resources, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Queen Sand Resources, Inc.
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▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 5L4
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. Boeing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COLLATERAL AGENT: ABLECO FINANCE LLC, as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. GENDA
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▇▇▇▇▇ ▇. Genda
Senior Vice President and
Chief Credit Officer
Address for Notices:
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Genda
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ PHLEGER & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Hilson, Esq.
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ADMINISTRATIVE AGENT: FOOTHILL CAPITAL CORPORATION
By: /s/ AUTHORIZED SIGNATORY
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Address for Notices
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▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Business Finance Division
Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER: ABLECO FINANCE LLC
By: /s/ ▇▇▇▇▇ ▇. GENDA
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▇▇▇▇▇ ▇. Genda
Senior Vice President and
Chief Credit Officer
LENDER: FOOTHILL CAPITAL CORPORATION
By: /s/ AUTHORIZED SIGNATORY
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EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in that certain Amendment Number Three
to Amended and Restated Credit Agreement, dated as of September __, 2000 (the
"Amendment"). Each of the undersigned hereby (a) represents and warrants to the
Agents and the Lenders that the execution, delivery, and performance of this
Reaffirmation and Consent are within its corporate powers, have been duly
authorized by all necessary corporate action, and are not in contravention of
any law, rule, or regulation, or any order, judgment, decree, writ, injunction,
or award of any arbitrator, court, or governmental authority, or of the terms
of its charter or bylaws, or of any contract or undertaking to which it is a
party or by which any of its properties may be bound or affected; (b) consents
to the amendment of the Agreement by the Amendment; (c) acknowledges and
reaffirms its obligations owing to the Agents and the Lenders under its
respective Second Amended and Restated Guaranty Agreement dated as of October
22, 1999 (each a "Guaranty", and collectively, the "Guaranties") and any other
Loan Documents to which it is party; and (d) agrees that the Guaranty and any
other Loan Documents to which it is a party is and shall remain in full force
and effect. Although each of the undersigned has been informed of the matters
set forth herein and has acknowledged and agreed to same, it understands that
the Agents and the Lenders have no obligation to inform it of such matters in
the future or to seek its acknowledgement or agreement to future amendments,
and nothing herein shall create such a duty. This Reaffirmation and Consent may
be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, shall be deemed to be
an original, and all of which, when taken together, shall constitute but one
and the same Reaffirmation and Consent. Delivery of an executed counterpart of
this Reaffirmation and Consent by telefacsimile shall be equally as effective
as delivery of an original executed counterpart of this Reaffirmation and
Consent. Any party delivering an executed counterpart of this Reaffirmation and
Consent by telefacsimile also shall deliver an original executed counterpart of
this Reaffirmation and Consent but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect
of this Reaffirmation and Consent. This Reaffirmation and Consent shall be
governed by internal laws of the State of New York as more fully set forth in
Section 5.04 of the Guaranties.
QUEEN SAND RESOURCES, INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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QUEEN SAND OPERATING CO.,
a Nevada corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
CORRIDA RESOURCES, INC.,
a Nevada corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
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