FIFTHAMENDMENT TO TERMCREDIT AGREEMENT

 

THIS FIFTH AMENDMENT TO TERM CREDIT AGREEMENT (this “Fifth Amendment”) is entered into effective as the Fifth 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 Fifth Amendment have the meaning given them in the Credit Agreement (as defined below).

 

 

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, that certain Fourth Amendment thereto dated May 13, 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 Fifth Amendment.

 

 

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 21, 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:

 

“Fifth Amendment Closing Date” means May 19, 2009.

 

2. Conditions to Closing Fifth Amendment. Unless specifically waived in writing by Lender, this Fifth 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:

(a) this Fifth Amendment executed by Borrower and Lender; and

 

 

(b) such other documents as Lender may reasonably request.

 

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 Fifth Amendment, (b) this Fifth 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 Fifth Amendment to be effective and (d) the execution and delivery of this Fifth Amendment does not violate its organizational documents.  The representations and warranties made in this Fifth Amendment shall survive the execution and delivery of this Fifth Amendment.  No investigation by Lender is required for Lender to rely on the representations and warranties in this Fifth Amendment.

4. Scope of Amendment; Reaffirmation; Release.  All references to the Credit Agreement shall refer to the Credit Agreement as amended by this Fifth Amendment.  Except as affected by this Fifth 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 Fifth 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 Fifth 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 Fifth Amendment Closing Date.

5. Miscellaneous.

(a) No Waiver of Defaults.  This Fifth 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 Fifth 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 Fifth Amendment must be in form and substance satisfactory to Lender and its counsel.

 

 

(c) Headings.  The headings and captions used in this Fifth Amendment are for convenience only and will not be deemed to limit, amplify or modify the terms of this Fifth 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 Fifth Amendment, including, without limitation, the reasonable fees and disbursements of Lender’s counsel.

 

(e) Successors and Assigns.  This Fifth 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 Fifth 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 Fifth 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 FIFTH 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 Fifth 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.

 

 

 

	BORROWER:
	RANCHER ENERGY CORP.,
	a Nevada corporation
	By:	/s/ John Works
		John Works
		President & Chief Executive Officer

 

 

	LENDER:
	GASROCK CAPITAL LLC,
	a Delaware limited liability company
	By:	/s/ Scott W. Johnson
		Scott W. Johnson
		Principal

 

 

Guarantor executes this Fifth Amendment for purposes of acknowledging and agreeing to the Credit Agreement, as amended by this Fifth 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 Fifth Amendment, as same may be further restated, amended, modified, renewed, or rearranged from time to time.

 

	RANCHER ENERGY WYOMING, LLC
	a Wyoming limited liability company
	By: RANCHER ENERGY CORP.,
	its sole Manager
	By:	/s/ John Works
		John Works
		President & Chief Executive Officer