AMENDMENT NO. 3 TO BUSINESS LOAN AGREEMENT
Exhibit 10.5
AMENDMENT NO. 3 TO
BUSINESS LOAN AGREEMENT
BUSINESS LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO BUSINESS LOAN AGREEMENT (the “Agreement”) dated and made
effective as of November 9, 2009 (the “Effective Date”), by and among ▇▇▇▇▇▇▇▇▇▇▇▇
RESOURCES, INC., a Delaware corporation (“Borrower”) and ▇▇▇▇▇▇▇▇▇▇▇▇ COAL COMPANY, a
Delaware corporation (“Guarantor”), and FIRST INTERSTATE BANK, a Montana banking
corporation (together with any subsequent holder or holders of the Notes, the “Lender”).
RECITALS
A. Lender and Borrower are parties to a Business Loan Agreement dated October 29, 2007, as
amended by Amendment to Business Loan Agreement and Commercial Security Agreement dated October 16,
2008 (the “October 2008 Amendment”) and Amendment No. 2 to Business Loan Agreement dated November
20, 2008 (the “November 2008 Amendment”) [as so amended, the “Loan Agreement”], providing for an
$8,500,000.00 term loan, evidenced by a promissory note (the “Term Note”) and a $20,000.000.00
revolving loan, evidenced by a promissory note (the “Revolving Note”) (the Term Note and Revolving
Note are herein sometimes referred to as the “Notes”);
B. The obligations under the Loan Agreement, the Term Note and the Revolving Note are secured
by inventory, chattel paper, accounts, equipment and intangibles of Borrower, and supported by the
Commercial Guaranty of Guarantor and Guarantor’s pledge of 100% of the common stock of Borrower;
C. Borrower has requested that Lender extend the Maturity Date of the Revolving Note on the
terms set forth in Exhibit 1 attached hereto (the “Revolving Note Modification”);
D. Borrower has also requested that Lender readvance up to $3,764,212.60 of principal and
extend the Maturity Date of the Term Note on the terms set forth in Exhibit 2 attached
hereto (the “Term Note Modification”); and
E. Lender is willing to amend the Notes as provided in the Revolving Note Modification and the
Term Note Modification subject to and conditioned upon the terms and conditions herein set forth.
AGREEMENT
NOW THEREFORE, in consideration of the Recitals above, of the mutual covenants,
representations and warranties below, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each party, the parties agree, intending to be legally
bound, as follows:
1. Recitals. The Recitals listed above form an integral part of this Agreement and
are fully binding upon each party hereto.
1
2. Defined Terms. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Loan Agreement.
3. Modification of Related Documents. The following terms and conditions of this
Agreement shall control, and shall be deemed to modify and amend all contrary and inconsistent
terms and conditions of the Loan Agreement and Related Documents as necessary to give full force
and effect to the following as of the Effective Date:
| a. | Maturity Date. Any and all references in the Loan Agreement
and Related Documents to the Maturity Date of the Notes are hereby amended and
modified as necessary to specifically refer to the new Maturity Date for the
Revolving Note of November 18, 2010 and the new Maturity Date for the Term Note
of January 29, 2013. |
| b. | Modification Fees. Contemporaneous with the parties’ execution
of this Agreement, Borrower has paid the Lender’s non-refundable loan
modification fees of $200,000.00 for the Revolving Note and $80,000.00 for the
Term Note, receipt of which are hereby acknowledged by Lender. |
| c. | Related Documents. Any and all references in the Loan
Agreement and Related Documents shall henceforth mean the Loan Agreement and
Related Documents as they have been modified and amended hereby, and henceforth
all references to “Related Documents” in the Related Documents shall include
this Agreement and the other documents and instruments executed and delivered
in conjunction with the Loan Modifications. |
| d. | Tangible Net Worth. The financial covenant titled “Tangible
Net Worth” on page 2 of the Loan Agreement is hereby revised and amended to
state as follows: |
Tangible Net Worth. Commencing as of April 30, 2010, Borrower will
maintain at all times thereafter a Tangible Net Worth of not less
than $30,000,000.00. Lender shall be permitted to increase the
interstate rate on each of the Notes by adding 1.000 percentage point
to the then existing interest rate on each of the Notes during any
period in which Borrower is not in compliance with this covenant.
4. Priority of Liens and Security Interests. The Related Documents, as modified
hereby, shall continue to fully and completely secure all of Borrower’s obligations as represented
by the Notes and Related Documents. Nothing contained herein is intended to change or adversely
affect the perfection or priority of any lien or security interest previously granted as security
for the Notes under the Related Documents, and all such liens and security interests shall continue
in effect and shall secure the Notes according to their original priority and effective dates.
2
5. Inconsistency. To the extent there is any inconsistency between the terms of this Agreement and the terms of any of the Related Documents, the terms of this Agreement shall
control and shall be given full force and effect.
6. Representations and Warranties. Borrower represents and warrants (a) Borrower’s
execution of this Agreement is fully authorized pursuant to Borrower’s bylaws and governing
agreements; (b) the execution and performance of this Agreement by Borrower will not conflict with,
or result in a breach or violation of, any other agreement, law or order binding on it; (c) all
necessary consents, votes, and other approvals required to make this Agreement binding and
enforceable against Borrower have been obtained; (d) this Agreement represents a valid and binding
contract of Borrower, enforceable in accordance with its terms.
7. Expenses. Borrower shall pay all expenses and costs of Lender in connection with
this Agreement, including, without limitation, the fees and expenses of counsel for Lender in
connection with the preparation, execution and delivery of this Agreement. In the event that any
party to this Agreement breaches this Agreement, a non-breaching party shall be entitled to enforce
the provisions hereof and to recover from the breaching party any and all reasonable attorney’s
fees and other expenses incurred by the non-breaching party in enforcing the terms of this
Agreement.
8. Ratification, Estoppel, Release.
| a. | All terms and conditions of the Loan Agreement and Related
Documents that are not contrary to, or inconsistent with, the terms and
conditions of this Agreement shall remain in full force and effect and are
hereby reaffirmed, ratified, confirmed as of the date hereof and are
incorporated herein by reference. |
| b. | Each of the representations, warranties, covenants, and
agreements of Borrower, and Guarantor, as set forth in the Loan Agreement and
Related Documents are true today, to the same extent as if made today, and are
incorporated herein by reference as though more fully set out, except as
modified herein. |
| c. | Borrower and Guarantor each further represent and warrant that
as of the date of this Agreement there are no counterclaims, defenses or
offsets of any nature whatsoever to any of the obligations of such parties
under the Loan Agreement or Related Documents. Borrower and Guarantor each
hereby waive, discharge, and release forever all existing rights, claims,
defenses, or causes of action, known or unknown, now existing, whether
discovered hereafter or not, including but not limited to those related to the
Loan which arise from any action or inaction by Lender, and which occurred on
or before the date of this Agreement, which each may have against Lender or
which might affect the enforceability by Lender of its rights and remedies
under any of the Related Documents. Borrower and Guarantor each acknowledge
and agree that the waivers, discharges, and releases herein contained are a
material inducement for Lender entering into this Agreement, and constitutes an
essential part of the consideration bargained for and received by Lender under
this Agreement. |
3
9. No Oral Agreements. This written agreement, together with the Loan Agreement and
Related Documents which are incorporated herein by reference, is the final expression of
the credit agreement between the Borrower and the Lender and may not be contradicted by evidence of
any prior or contemporaneous oral agreement between the Borrower and the Lender. Borrower,
Guarantor, and Lender each hereby affirm that there is no unwritten oral credit agreement between
Borrower and Lender with respect to the subject matter of this written credit agreement.
10. Additional Documents. The parties hereto agree to sign any additional documents
reasonably necessary to give effect to the terms of this Agreement, if requested by Lender.
11. Guaranty. Guarantor, by executing this Agreement, consents to the terms herein
contained, and acknowledges, confirms and agrees that its Commercial Guaranty remains in full force
and effect and constitutes and remains a guaranty of the Notes, the Loan Agreement and the Related
Documents.
12. No Fiduciary Relationship. Borrower acknowledges and agrees that its relationship
with Lender is a lending relationship only, and that no fiduciary relationship exists between the
parties. In entering into this Agreement, Borrower has not relied upon any covenant,
representation or warranty by Lender as to the effect of this Agreement, including the tax effect
of this Agreement, other than those expressly set forth in this Agreement, and all such other
covenants, representations, and warranties are expressly disclaimed by each of the parties.
13. Miscellaneous.
| a. | Headings are inserted into this Agreement for convenience only
and shall not be considered in construing any provision. |
| b. | The laws of the State of Montana will govern all provisions of this Agreement. |
| c. | This Agreement may not be amended, nor any of its provisions
waived, except in a writing executed by all parties hereto. |
| d. | Time shall be of the essence of the Agreement. |
| e. | The provisions of this Agreement are separable. If any
judgment is hereafter entered holding any provision of the Agreement to be
invalid or unenforceable, then the remainder of the Agreement shall be carried
out as nearly as possible according to its original terms. |
| f. | No inference in favor of, or against, any person shall be drawn
from the fact that such person has drafted all or any part of this Agreement or
any other Loan Document. |
1. Counterparts. This Agreement may be executed in any number of identical
counterparts, any of which may contain the signatures of less than all parties, and all of which
together shall constitute a single Agreement.
4
2. Successors. The covenants, conditions and agreements contained in this Agreement
shall bind, and the benefits thereof shall inure to, the respective parties hereto and their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.
| BORROWER: ▇▇▇▇▇▇▇▇▇▇▇▇ RESOURCES, INC. |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| GUARANTOR: ▇▇▇▇▇▇▇▇▇▇▇▇ COAL COMPANY |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| LENDER: FIRST INTERSTATE BANK |
||||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| Its: Vice President | ||||
5