Unassociated Document


    

      NOVEMBER
        30, 2005 AMENDMENT TO AMENDED AND RESTATED

      FINANCING
        AGREEMENT

      


      


      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
        Eddins-Walcher Company (“Eddins”)
        and
        Three D Oil Co. of Kilgore, Inc. (“Three D”)
        (Eddins 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 Thomas E. Kelly, 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.

       

       

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          5

          
            

          

        

        
          
          

        

      



      Executed
        on this 29th day of March, 2006, to be effective as of the respective date
        indicated above.

       

       

       

      EDDINS-WALCHER
        COMPANY

       

       

      By:
        /s/ Bobby W.
        Page                               


      Name:
        Bobby W.
        Page                               

      Title:
        Vice President &
CFO                       


       

       

      THREE
        D OIL CO. OF KILGORE, INC.

       

      
         

        By:
          /s/ Bobby W.
          Page                               


        Name:
          Bobby W.
          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/ Alan
        Schnacke                       

           
        Alan Schnacke, Vice President

       

       

      SUNTRUST
        BANK, as a Lender

       

       

       

      By:
        /s/ Mark
        Pickering                       


      Name:
        Mark
        Pickering                       

      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/ Bobby W.
        Page                               

      Name:
        Bobby W.
        Page                               

      Title:
        Vice President &
CFO                       

       

      UNITED
        FUEL & ENERGY CORPORATION, a Nevada corporation

      


      
         

        By:
          /s/ Bobby W.
          Page                               

        Name:
          Bobby W.
          Page                               

        Title:
          Vice President &
CFO                       

         

      

       

      
        /s/
          Thomas E.
          Kelly                                    

      

      Thomas
        E. Kelly