EXHIBIT 10.2
Execution Version
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT, dated as of November 30, 2004 (this "FIRST AMENDMENT"),
among ICG, LLC, a Delaware limited liability company (the "BORROWER"), UBS AG,
Stamford Branch, as administrative agent (in such capacity, "ADMINISTRATIVE
AGENT"), and the financial institutions party to the Credit Agreement (as
defined below) as lenders (collectively, the "LENDERS"), to the Amended and
Restated Credit Agreement, dated as of November 5, 2004 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Borrower, International Coal Group, Inc., a
Delaware corporation ("HOLDINGS"), the Lenders, the guarantors party thereto,
UBS Securities LLC, as lead arranger, UBS Loan Finance LLC, as swingline lender,
the Administrative Agent, and UBS AG, Stamford Branch, as issuing bank and
collateral agent.
WHEREAS, the Borrower wishes to make certain amendments to the Credit
Agreement which are more particularly described herein.
WHEREAS, the Required Lenders party hereto are willing to permit such
amendments on the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement.
ARTICLE II.
AMENDMENTS TO CREDIT AGREEMENT
Section 2.01 Definition of Change in Control.
The definition of "Change in Control" is amended by:
(i) deleting clause "(i)" of sub-section "(b)" in its entirety and
replacing it as follows:
"(i) unless, at such time, the aggregate principal amount of Term Loans
outstanding is less than or equal to $50.0 million, the Permitted Holders cease
to own Equity Interests of Holdings in an aggregate amount that is at least (x)
9,804,172 Equity Interests plus (y) the aggregate amount of Equity Interests
acquired by the Permitted Holders as a result of any stock split, dividend or
similar issuance for no or nominal consideration, or"; and
(ii) deleting clause "(i)" of sub-section "(c)" in its entirety and
replacing it as follows:
"(i) unless, at such time, the aggregate principal amount of Term Loans
outstanding is less than or equal to $50.0 million, the Permitted Holders cease
to own Equity Interests of
Holdings in an aggregate amount that is at least (x) 6,396,000 Equity Interests
plus (y) the aggregate amount of Equity Interests acquired by the Permitted
Holders as a result of any stock split, dividend or similar issuance for no or
nominal consideration, or."
Section 2.02 Financial Statements, Reports.
Sections 5.01(a), (b) and (c) of the Credit Agreement are amended
and restated in their entirety as follows:
"(a) Annual Reports.
(i) As soon as available and in any event within 120 days of the fiscal
year ending December 31, 2004, (A) the consolidated balance sheet of Holdings as
of the end of such fiscal year and related consolidated statements of income,
cash flows and stockholders' equity for such fiscal year, in comparative form
with such financial statements as of the end of, and for, the preceding fiscal
year, and notes thereto, all prepared in accordance with Regulation S-X under
the Securities Act and accompanied by an audit report of Deloitte & Touche LLP
or other independent public accountants of recognized national standing
satisfactory to the Administrative Agent (which audit report shall not be
qualified as to scope or contain any going concern or other qualification),
stating that such financial statements fairly present, in all material respects,
the consolidated financial condition, statements of income and cash flows of
Holdings as of the dates and for the periods specified in accordance with GAAP
consistently applied (except any inconsistencies in the application of GAAP as
are approved by such independent public accountants and disclosed in their audit
report), (B) a management report in a form reasonably satisfactory to the
Administrative Agent setting forth, (x) on a consolidated basis, the financial
condition, statements of income and cash flows as of the end of and for such
fiscal year, compared to the end of and for the previous fiscal year and, with
respect to the period from October 1, 2004 through December 31, 2004, to
budgeted amounts for such period, and (y) on a consolidating basis, the
statements of income of each Subsidiary as of the end of and for such fiscal
year, and (C) a management's discussion and analysis of the financial condition
and statements of income for such fiscal year, as compared to the previous
fiscal year and, with respect to the period from October 1, 2004 through
December 31, 2004, to budgeted amounts for such period; provided, however, that
with respect to the notes delivered in connection with the consolidated
statements of income delivered pursuant to clause (A) above, such notes shall
include a note with a consolidating statement of income separating out Holdings
and each of its Subsidiaries; and
(ii) As soon as available and in any event within 90 days after the end
of each fiscal year ending on or after December 31, 2005 (but no later than the
date on which Holdings would be required to file a Form 10-K under the Exchange
Act if it were subject to Section 15 and 13(d) of the Exchange Act), (A) the
consolidated balance sheet of Holdings as of the end of such fiscal year and
related consolidated statements of income, cash flows and stockholders' equity
for such fiscal year, in comparative form with such financial statements as of
the end of, and for, the preceding fiscal year, and notes thereto (including a
note with a consolidating balance sheet and statements of income and cash flows
as of the end of such fiscal year separating out Holdings and its Subsidiaries),
all prepared in accordance with Regulation S-X under the Securities Act and
accompanied by an audit report of Deloitte & Touche LLP or other
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independent public accountants of recognized national standing satisfactory to
the Administrative Agent (which audit report shall not be qualified as to scope
or contain any going concern or other qualification), stating that such
financial statements fairly present, in all material respects, the consolidated
financial condition, statements of income and cash flows of Holdings as of the
dates and for the periods specified in accordance with GAAP consistently applied
(except any inconsistencies in the application of GAAP as are approved by such
independent public accountants and disclosed in their audit report), (B) a
management report in a form reasonably satisfactory to the Administrative Agent
setting forth, on a consolidating basis, (x) the financial condition, statements
of income and cash flows of each Subsidiary as of the end of and for such fiscal
year, and (y) with respect to the period from October 1, 2005 through December
31, 2005, (1) the financial condition and cash flows of each Subsidiary as of
the end of and for such period, compared to the end of, and for, the comparable
period in the previous fiscal year and (2) the statements of income of each
Subsidiary as of the end of, and for, such period, compared to the end of , and
for, the comparable period in the previous fiscal year and budgeted amounts for
such period, and (C) a management's discussion and analysis of the financial
condition and statements of income for such fiscal year, as compared to the
previous fiscal year and budgeted amounts;
(b) Quarterly Reports.
(i) As soon as available and in any event by December 20, 2004 for the
fiscal quarter ending September 30, 2004, (A) the consolidated balance sheet of
Holdings as of the end of such fiscal quarter and related consolidated
statements of income and cash flows for such fiscal quarter and for the then
elapsed portion of the fiscal year, all prepared in accordance with Regulation
S-X under the Securities Act and accompanied by a certificate of a Financial
Officer of Holdings stating that such financial statements fairly present, in
all material respects, the consolidated financial condition, statements of
income and cash flows of Holdings as of the date and for the periods specified
in accordance with GAAP consistently applied (except any inconsistencies in the
application of GAAP as are approved by such independent public accountants and
disclosed in their audit report delivered pursuant to clause (a) above), and on
a basis consistent with audited financial statements referred to in clause (a)
of this Section 5.01, subject to normal year-end audit adjustments, and (B) a
management's discussion and analysis of the financial condition and statements
of income for such fiscal quarter; and
(ii) As soon as available and in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year ending on or
after December 31, 2005 (but no later than the date on which Holdings would be
required to file a Form 10-Q under the Exchange Act if it were subject to
Section 15 and 13(d) of the Exchange Act), (A) the consolidated balance sheet of
Holdings as of the end of such fiscal quarter and related consolidated
statements of income and cash flows for such fiscal quarter and for the then
elapsed portion of the fiscal year, in comparative form with the consolidated
statements of income and cash flows for the comparable periods in the previous
fiscal year and budgeted amounts for such fiscal quarter and for the then
elapsed portion of the fiscal year, and notes thereto (including a note with a
consolidating balance sheet and statements of income and cash flows as of the
end of such fiscal quarter and for the then elapsed portion of the fiscal year
separating out Holdings and its Subsidiaries), all prepared in accordance with
Regulation S-X under the Securities Act and
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accompanied by a certificate of a Financial Officer of Holdings stating that
such financial statements fairly present, in all material respects, the
consolidated financial condition, statements of income and cash flows of
Holdings as of the date and for the periods specified in accordance with GAAP
consistently applied (except any inconsistencies in the application of GAAP as
are approved by such independent public accountants and disclosed in their audit
report delivered pursuant to clause (a) above), and on a basis consistent with
audited financial statements referred to in clause (a) of this Section, subject
to normal year-end audit adjustments, (B) a management report in a form
reasonably satisfactory to the Administrative Agent setting forth, on a
consolidating basis, (x) the financial condition and cash flows of each
Subsidiary as of the end of and for such fiscal quarter and for the then elapsed
portion of the fiscal year, compared to (in the case of any fiscal quarter
ending on or after March 31, 2006) the end of such fiscal quarter and for the
comparable periods in the previous fiscal year and (y) the statements of income
of each Subsidiary as of the end of and for such fiscal quarter and for the then
elapsed portion of the fiscal year, compared to the end of such fiscal quarter
and for the comparable periods in the previous fiscal year and budgeted amounts
for such fiscal quarter and for the then elapsed portion of the fiscal year, and
(C) a management's discussion and analysis of the financial condition and
statements of income for such fiscal quarter and the then elapsed portion of the
fiscal year, as compared to the comparable periods in the previous fiscal year
and budgeted amounts;
(c) Monthly Reports.
(i) Within 45 days after October 31, 2004 and November 30, 2004,
respectively, (A) the consolidated balance sheet of Holdings as of the end of
each such month and the related consolidated statements of income and cash flows
of Holdings for each such month and, with respect to the information delivered
for November 2004, for the then elapsed portion of the fiscal year, accompanied
by a certificate of a Financial Officer of Holdings stating that such financial
statements fairly present, in all material respects, the consolidated statements
of income and cash flows of Holdings as of the date and for the periods
specified in accordance with GAAP consistently applied (except any
inconsistencies in the application of GAAP as are approved by such independent
public accountants and disclosed in their audit report delivered pursuant to
clause (a) above) subject to normal year-end audit adjustments, and (B) a
management report in a form reasonably satisfactory to the Administrative Agent
setting forth on a consolidating basis the statements of income and cash flows
for each Subsidiary for such month and, with respect to the report delivered for
November 2004, for the elapsed portion of the fiscal year;
(ii) Within 45 days after the end of each of the first two months of each
fiscal quarter from January 1, 2005 through September 30, 2005, (A) the
consolidated balance sheet of Holdings as of the end of each such month and the
related consolidated statements of income and cash flows of Holdings for each
such month and for the then elapsed portion of the fiscal year, compared to
budgeted amounts for such periods, accompanied by a certificate of a Financial
Officer of Holdings stating that such financial statements fairly present, in
all material respects, the consolidated statements of income and cash flows of
Holdings as of the date and for the periods specified in accordance with GAAP
consistently applied (except any inconsistencies in
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the application of GAAP as are approved by such independent public accountants
and disclosed in their audit report delivered pursuant to clause (a) above)
subject to normal year-end audit adjustments, and (B) a management report in a
form reasonably satisfactory to the Administrative Agent setting forth on a
consolidating basis, (x) the cash flows of each Subsidiary for each such month
and for the then elapsed portion of the fiscal year and (y) the statements of
income of each Subsidiary for each such month and for the then elapsed portion
of the fiscal year compared to budgeted amounts for such periods; and
(iii) Within 45 days after the end of each of the first two months of each
fiscal quarter after September 30, 2005, (A) the consolidated balance sheet of
Holdings as of the end of each such month and the related consolidated
statements of income and cash flows of Holdings for each such month and for the
then elapsed portion of the fiscal year, in comparative form with the
consolidated statements of income and cash flows for the comparable periods in
the previous fiscal year and budgeted amounts for such month and for the then
elapsed portion of the fiscal year, accompanied by a certificate of a Financial
Officer of Holdings stating that such financial statements fairly present, in
all material respects, the consolidated statements of income and cash flows of
Holdings as of the date and for the periods specified in accordance with GAAP
consistently applied (except any inconsistencies in the application of GAAP as
are approved by such independent public accountants and disclosed in their audit
report delivered pursuant to clause (a) above) subject to normal year-end audit
adjustments, and (B) a management report in a form reasonably satisfactory to
the Administrative Agent setting forth, on a consolidating basis, (x) the
statements of income and cash flows of each Subsidiary for each such month and
for the then elapsed portion of the fiscal year compared to the comparable
periods in the previous fiscal year and (y) the statements of income of each
Subsidiary for each such month and for the then elapsed portion of the fiscal
year compared to budgeted amounts for such periods;"
Section 2.03 Interest Rate Protection.
Section 5.11 of the Credit Agreement is amended by deleting the
words "the 60th day after the Closing Date" in lines 1 and 2 thereof, and
replacing them with the words "December 15, 2004".
Section 2.04 The Guarantee.
Section 7.01 of the Credit Agreement is amended by inserting the
words "or any Hedging Agreement" immediately after the words "under any Loan
Document" in line 8 thereof.
ARTICLE III.
MISCELLANEOUS
Section 3.01 Execution of this First Amendment; Authorization;
Effectiveness.
This First Amendment is executed and shall be construed as an
amendment to the Credit Agreement and forms a part of the Credit Agreement to
the extent applicable thereto. By its signature below, each of the undersigned
Required Lenders hereby authorizes and directs the
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Administrative Agent to execute this First Amendment. The effectiveness of the
amendments contained herein is conditioned upon the receipt by the
Administrative Agent of signed written counterparts of the consent of the
Guarantors attached hereto as Annex 1 (the "CONSENT") executed by each of the
Guarantors.
Section 3.02 Representations and Warranties.
(a) Authority; Enforceability. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that (a) all consents,
approvals and authorizations necessary for the Borrower's execution, delivery
and performance of this First Amendment have been obtained or made, (b) this
First Amendment has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law, and (c)
each of the representations and warranties contained in Article III of the
Credit Agreement is true and correct in all material respects, except that any
representation and warranty that is qualified as to "Materiality" or "Material
Adverse Effect" shall be true and correct in all respects as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date.
(b) No Conflict. Neither the execution and delivery of this First
Amendment or the Consent, nor the performance of and compliance with the terms
and provisions hereof or thereof by any Loan Party or other Subsidiary of the
Borrower will, at the time of such performance, (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirements of Law or any other law, regulation,
order, writ, judgment, injunction, decree or permit applicable to it, except for
any violation, contravention or conflict which would not reasonably be expected
to have a Material Adverse Effect, (c) (i) violate, contravene or conflict with
the contractual provisions of, or cause an event of default under, any Loan
Document or (ii) violate, contravene or conflict with the contractual provisions
of, or cause an event of default under any other loan agreement, indenture,
mortgage, deed of trust, contract or other agreement or instrument to which it
is a party or by which it may be bound, except for any violation, contravention,
conflict or default that would not reasonably be expected to have a Material
Adverse Effect, or (d) result in or require the creation of any Lien (other than
those contemplated in or created in connection with the Loan Documents) upon or
with respect to its properties. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the performance of and compliance
with the terms and provisions hereof.
(c) No Default. Except with respect to any Default intended to be
cured by the amendments contained in this First Amendment, both before and after
giving effect to this First Amendment, no event has occurred and is continuing
that constitutes a Default or Event of Default.
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Section 3.03 No Waiver.
Except as specifically modified pursuant to the terms of this First
Amendment, the terms and conditions of the Credit Agreement and the other Loan
Documents remain in full force and effect. Nothing herein shall limit in any way
the rights and remedies of the Administrative Agent and the Lenders under the
Credit Agreement and the other Loan Documents. The execution and delivery by the
Lenders of this First Amendment shall not constitute a waiver, forbearance or
other indulgence with respect to any Default or Event of Default now existing or
hereafter arising.
Section 3.04 Counterparts; Integration; Effectiveness.
This First Amendment may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This First Amendment and any agreements referred to herein
constitute the entire contract among the parties hereto relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. This First Amendment
shall become effective when it shall have been executed by each of the Borrower
and each of the Required Lenders, and thereafter shall be binding upon and inure
to the benefit of the parties to the Credit Agreement and, subject to and in
accordance with Section 11.04 of the Credit Agreement, their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this First Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this First Amendment.
Section 3.05 Severability.
Any provision of this First Amendment held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality or enforceability of the remaining provisions
hereof, and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 3.06 GOVERNING LAW.
THIS FIRST AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
Section 3.07 Headings.
Article and Section headings used herein are for convenience of
reference only, are not part of this First Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this First
Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
ICG, LLC,
as Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxx
_________________________________
Title: Vice President, Secretary
and Treasurer
_________________________________
UBS AG, STAMFORD BRANCH,
as Administrative Agent
By: /s/ Xxxxxxx X. Saint
________________________________________
Name: Xxxxxxx X. Saint
_________________________________
Title: Director
Banking Products Services, US
_________________________________
By: /s/ Xxxxxxx Xxxxxxxxx
________________________________________
Name: Xxxxxxx Xxxxxxxxx
_________________________________
Title: Associate Director
Banking Products Services, US
[SIGNATURE PAGE TO FIRST AMENDMENT]
_____________________,
[NAME OF INSTITUTION]
as Lender
By: ________________________________________
Name: _________________________________
Title: _________________________________
[SIGNATURE PAGE TO FIRST AMENDMENT]
CONSENT OF GUARANTORS
Each of the undersigned is a Guarantor of the Obligations of the Borrower under
the Credit Agreement and hereby (a) consents to the foregoing First Amendment,
(b) acknowledges that notwithstanding the execution and delivery of the
foregoing First Amendment, the obligations of each of the undersigned Guarantors
are not impaired or affected and all guaranties given to the holders of
Obligations and all Liens granted as security for the Obligations continue in
full force and effect, and (c) confirms and ratifies its obligations under the
Credit Agreement and each other Loan Document executed by it. Capitalized terms
used herein without definition shall have the meanings given to such terms in
the First Amendment to which this Consent is attached or in the Credit Agreement
referred to therein, as applicable.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Consent of Guarantors as of November 30, 2004.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
INTERNATIONAL COAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
ICG NATURAL RESOURCES, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
ICG ADDCAR SYSTEMS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
ICG EAST KENTUCKY, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
ICG ILLINOIS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
ICG EASTERN, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Secretary and
Treasurer
[SIGNATURE PAGE TO CONSENT]
ICG HAZARD, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxx
_________________________________
Title: Vice President, Secretary
and Treasurer
_________________________________
ICG XXXXX COUNTY, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxx
_________________________________
Title: Vice President, Secretary
and Treasurer
_________________________________
ICG EASTERN LAND, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxx
_________________________________
Title: Vice President, Secretary
and Treasurer
_________________________________
ICG HAZARD LAND, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Name: Xxxxxxx X. Xxxxxxxx
_________________________________
Title: Vice President, Secretary
and Treasurer
_________________________________
[SIGNATURE PAGE TO CONSENT]
