Contract
Exhibit
10.1
WAIVER,
CONSENT AND SECOND AMENDMENT
TO TERM CREDIT AGREEMENT
THIS
WAIVER, CONSENT
AND SECOND AMENDMENT
TO TERM CREDIT AGREEMENT (this
“Agreement”),
is
made and entered into as of August 7, 2007 (the “Effective
Date”),
by
and among Xxxxx River Coal Company, a corporation organized under the laws
of
Virginia (“JRCC”),
and
certain of JRCC’s Subsidiaries identified on the signature pages hereof, as
borrowers (such Subsidiaries, together with JRCC, are referred to hereinafter
each individually as a “Borrower”,
and
collectively, jointly and severally, as the “Borrowers”),
and
the other credit parties hereto, identified on the signature pages hereof
as
Guarantors (together, the Borrowers and Guarantors, the “Credit
Parties”),
the
lenders party hereto from time to time (the “Lenders”),
Xxxxxx Xxxxxxx Senior Funding, Inc. (“MS”),
a
corporation formed under the laws of Delaware, as
administrative agent for the Lenders (in such capacity, together with its
successors and assigns, if any, the “Administrative
Agent”)
and as
sole-bookrunner and lead arranger (in such capacity, the “Lead
Arranger”),
and
Xxxxxx Xxxxxxx & Co. Incorporated, as collateral agent for the Lenders (in
such capacity, together with its successors and assigns, if any, the
“Collateral
Agent”).
W
I T N E S S E T H:
WHEREAS,
the
Borrowers, the other Credit Parties signatory thereto, the Lenders and L/C
Issuers party thereto, and the Administrative Agent are parties to that certain
Term Credit Agreement, dated as of February 26, 2007 (as amended, restated,
supplemented and revised from time to time, the “Credit
Agreement”),
pursuant to which the Lenders have committed to make certain loans
and
other extensions of credit to the Borrowers upon the terms and conditions
set
forth therein; and
WHEREAS, the
Borrowers have requested that the Lenders make certain changes to the Credit
Agreement and that the Lenders consent to certain actions of the Borrowers;
and
WHEREAS,
the
Lenders are willing, upon and subject to certain conditions, to amend the
Credit
Agreement in certain respects, all in accordance with and subject to the
terms
and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the premises, the covenants and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties hereto do hereby agree that capitalized
terms used herein and not otherwise defined herein shall have the meanings
given
to such terms in the Credit Agreement and as follows:
1. Waiver.
The
Administrative Agent and the undersigned Lenders, subject to the terms and
conditions of this Agreement, including without limitation the conditions
to
effectiveness specified in Section
8
below,
hereby waive any Default or Event of Default solely occurring by reason of
the
Borrower’s failure to comply with (a) the Minimum Consolidated EBITDA covenant
set forth in Section
10.01
solely
for the period ending on June 30, 2007 and (b) the Leverage Ratio covenant
set
forth in Section
10.02
solely
for the period ending on June 30, 2007.
2. Consent.
(a)
Subject
to the limitations set forth in Section
9.05(e)
of the
Credit Agreement (as amended hereby), the Required Lenders hereby consent
to
JRCC’s issuance and/or sale of shares of common stock in JRCC (the “Equity
Issuance”)
under
the Registration Statement on Form S-3 filed by JRCC with the Securities
&
Exchange Commission on June 7, 2007 (the “Shelf
Registration”).
(b) The
parties hereto further agree that notwithstanding Section 3.01 and Section
3.02
of the Credit Agreement and Section 3.01 and Section 3.02 of the Revolving
Credit Agreement, at least fifty percent (50%) of the Net Offering Proceeds
of
any Equity Issuance shall be, upon receipt, segregated into a Cash Management
Account and offered as a mandatory prepayment to the Term Lenders (the “Equity
Repayment”). Any Term Lender may, in its discretion, notify the Borrower, in
writing within ten (10) Business Days, that such Term Lender does not want
to
accept such Term Lender’s pro rata share of the Equity Repayment. In the event
any Term Lender sends such a notice, such Term Lender’s pro rata share of the
Equity Repayment may be retained by JRCC, or used by Borrowers for any corporate
purpose (including, without limitation, to prepay, purchase or otherwise
redeem
the 9.375% Senior Notes due 2012); provided however,
that no
prepayment of Indebtedness, other than the Obligations under the Credit
Agreement and the obligations under the Revolving Credit Agreement, shall
be
permitted if, after giving effect to such prepayment on a pro forma basis,
any
Default or Event of Default shall have occurred. Notwithstanding the above,
no
Equity Repayment shall be required in connection with up to an aggregate
amount
of $40,000,000 of the Net Offering Proceeds of any Equity Issuance occurring
prior to March 30, 2008.
3. Amendments
to the Credit Agreement.
(a) Section
1.01
of the
Credit Agreement, Definitions,
is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
“Disqualified
Equity Interest”
means
any Equity Interest which, by its terms (or by the terms of any security
into
which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant
to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date six months after
the earlier of the Maturity Date or the date that the Commitments and the
Obligations hereunder are no longer outstanding, or (b) is convertible into
or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interest referred to in (a) above, in each
case at
any time on or prior to the date six months after the earlier of the Maturity
Date or the date that the Commitments and the Obligations hereunder are no
longer outstanding, or (c) contains any repurchase obligation which may come
into effect prior to payment in full of all Obligations.
“Mandated
Capital Expenditures”
means
the amount of any Capital Expenditures required to be made by the Credit
Parties
as the result of any law or regulation, directive, guideline or decision
of any
Governmental Authority (including without limitation the Mine Improvement
and
New Emergency Response Act of 2006 and MSHA safety initiatives implemented
in
2006 and 2007); provided that the aggregate amount of all such Capital
Expenditures shall not exceed $5,000,000 within any consecutive period of
twelve
months.
2
“Minimum
Liquidity”
means
cash and Cash Equivalents of the Credit Parties held in Cash Management Accounts
plus
Revolving Availability.
“Minimum
Liquidity Threshold”
has
the
meaning ascribed to such term in Section 10.04.
“Second
Amendment Date”
means
the effective date of the Waiver, Consent and Second Amendment to Term Credit
Agreement dated as of August __, 2007.
“Shelf
Registration”
means
that certain Registration Statement on Form S-3 filed by JRCC with the
Securities & Exchange Commission on June 7, 2007.
(b) Section
1.01 of the Credit Agreement, Definitions,
is
hereby amended by deleting the definitions of “Applicable
Margin”,
“Applicable
Payment Fee”
and
“Applicable
Reduction Fee”
and
substituting in lieu thereof the following:
"Applicable
Margin”
means,
three and three quarter percentage points (3.75%) in the case of Base Rate
Loans
and four and three quarter percentage points (4.75%) in the case of LIBOR
Rate
Loans.
“Applicable
Payment Fee”
means
(a) on or prior to the 2nd
anniversary of the Second Amendment Date, three percentage points, (b) on
or prior to the 3rd
anniversary of the Second Amendment Date, two percentage points, and
(c) after the 3rd
anniversary of the Second Amendment Date zero percentage points, in each,
case,
times the amount of the Term Loan B Loans being paid for any reason other
than
(i) payments from Excess Cash Flow under Section
3.02(d)
and
(ii) payments from Net Casualty/Condemnation Proceeds under Section
3.02(a).
“Applicable
Reduction Fee”
means
(a) on or prior to the 2nd
anniversary of the Second Amendment Date, three percentage points, (b) on
or prior to the 3rd
anniversary of the Second Amendment Date, two percentage points, and
(c) after the 3rd
anniversary of the Second Amendment Date zero percentage points, in each
case
times the amount of the Term Letter of Credit Commitment being reduced for
any
reason other than (i) reductions due to mandatory payments from Excess Cash
Flow under Section
3.02(d)
or
(ii) reductions due to mandatory payments from Net Casualty/Condemnation
Proceeds under Section
3.02(a).
(c) Section
3.01
of the
Credit Agreement, Voluntary
Prepayments/Reductions of the Commitments,
is
hereby amended by inserting
the following as a new Section 3.01(d).
3
"Prepayment
of Obligations. If the Borrower pays after acceleration or prepays all
or any
portion of the Obligations, whether voluntarily or involuntarily and whether
before or after acceleration of the Obligations, the Borrower shall pay
to the
Administrative Agent, for the benefit of Lenders as liquidated damages
and
compensation for the costs of being prepared to make funds available hereunder
an amount equal to the Applicable Prepayment Fee multiplied by the principal
amount of the Obligations paid after acceleration or prepaid. The Credit
Parties
agree that the Applicable Prepayment Fee is a reasonable calculation of
the
Lenders' lost profits in view of the difficulties and impracticality of
determining actual damages resulting from an early repayment of the Obligations.
Notwithstanding anything contained hereunder, including but not limited
to the
provisions of Sections 3.01(a), 3.01(b) and 3.01(c), the Borrower shall
not be
permitted to make any voluntary prepayment of the Obligations or reduction
in
the Term Letter of Credit Commitments prior to the 1st anniversary of the
Second
Amendment Date."
(d) Section
9.05
of the
Credit Agreement, Limitation
on Issuance of Equity Interests,
is
hereby amended by deleting the word “or” following clause (c) thereof and
inserting the following new clause (e) immediately following clause (d)
thereof:
“or
(e)
issuances of Equity Interests (other than Disqualified Equity Interests)
consisting solely of common stock of JRCC, under the Shelf Registration to
the
holders of any Indebtedness in exchange for, or as a redemption or repayment
of,
any or all such Indebtedness.”
(e) Section
9.15,
Securities
Accounts; Deposit Accounts,
of the
Credit Agreement is hereby amended by deleting such Section in its entirety
and
inserting the following in lieu thereof:
“SECTION
9.15 Securities
Accounts; Deposit Accounts.
Subject
to the Security Agreement and except as permitted by SECTION 5.01(v), it
shall
not establish or maintain any Securities Account, Deposit Account or similar
account unless the Collateral Agent shall have received a Control Agreement
in
respect of such Securities Account, Deposit Account or similar account;
provided that,
this
requirement shall not apply to (A) any Deposit Account with an average daily
balance of less than $100,000, so long as the aggregate daily balances in
all
such accounts do not exceed $1,000,000, (B) any payroll, withholding tax
or
other fiduciary account or (C) any account for payment of workers compensation
and employment claims. Each Credit Party shall comply in all material respects
with the provisions of each Control Agreement to which it is a
party.
(f) Section
9.18,
Minimum
Revolver Availability Covenant.
The
Credit Agreement is hereby amended by inserting the following as a new Section
9.18.
“It
shall
not permit Revolving Availability to be less than $10,000,000 at any time,
unless and until Consolidated EBITDA for the twelve (12)-month period ended
on
the last date of any fiscal quarter ending on or after September 30, 2008
as
reported under Section 10.01 is greater than $75,000,000, from and after
which
date this Section 9.18 shall no longer apply.”
4
(g) Section
10.01,
Minimum
Consolidated EBITDA,
of the
Credit Agreement is hereby amended by deleting such Section in its entirety
and
inserting the following in
lieu
thereof:
“SECTION
10.01 Minimum
Consolidated EBITDA.
The
Credit Parties shall
not
permit Consolidated EBITDA:
(a) for
the
nine (9) month period ending as of September 30, 2007 to be less
than
$19.0
million,
and
(b) for
the
twelve (12)-month period ending on any date set forth in the table
below to be less than the amount set forth opposite such date:
|
Measurement
Period Ending
|
Consolidated
EBITDA
|
|
December 31,
2007
|
23.2
|
|
March
31, 2008
|
24.1
|
|
June
30, 2008
|
34.5
|
|
September
30, 2008
|
40.4
|
|
December 31,
2008
|
47.0
|
|
March
31, 2009
|
54.1
|
|
June
30, 2009
|
61.3
|
|
September
30, 2009
|
72.2
|
|
December 31,
2009
|
78.9
|
|
March
31, 2010
|
78.9
|
|
June
30, 2010
|
78.1
|
|
September
30, 2010
|
76.5
|
|
December 31,
2010
|
78.8
|
(h) Section
10.02,
Leverage
Ratio,
of the
Credit Agreement is hereby amended by deleting such Section in its entirety
and
inserting the following in lieu thereof:
“SECTION
10.02 Leverage
Ratio.
The
Credit Parties shall not permit the
Leverage Ratio for the Credit Parties as of any date set forth in the table
below to be greater
than the amount set forth opposite such date:
|
Measurement
Period Ending
|
Leverage
Ratio
|
|
September
30, 2007
|
4.5x
|
|
December 31,
2007
|
4.9x
|
|
March
31, 2008
|
5.0x
|
5
|
Measurement
Period Ending
|
Leverage
Ratio
|
|
June
30, 2008
|
3.6x
|
|
September
30, 2008
|
3.0x
|
|
December 31,
2008
|
2.6x
|
|
March
31, 2009
|
2.2x
|
|
June
30, 2009
|
2.0x
|
|
September
30, 2009
|
1.7x
|
|
December 31,
2009
|
1.5x
|
|
March
31, 2010
|
1.5x
|
|
June
30, 2010
|
1.5x
|
|
September
30, 2010
|
1.6x
|
|
December 31,
2010
|
1.5x
|
(i) Section
10.03,
Capital
Expenditures,
of the
Credit Agreement is hereby amended by deleting such Section in its entirety
and
inserting the following in lieu thereof:
“SECTION
10.03 Capital
Expenditures.
The
Credit Parties shall not make or agree to make any Capital Expenditure (other
than Mandated Capital Expenditures) for the most recently ended Fiscal Year
that
would cause the aggregate amount of all such Capital Expenditures made by
the
Credit Parties to exceed the amount set forth opposite such Fiscal
Year:
|
Fiscal
Year Ending
|
Capital
Expenditures (other than Mandated Capital
Expenditures)
|
|
December 31,
2007
|
$56.1
million
|
|
December 31,
2008
|
$56.1
million
|
|
December
31, 2009 and each Fiscal Year thereafter
|
$66.0
million
|
provided,
however,
to the
extent that actual Capital Expenditures (exclusive of Mandated Capital
Expenditures) for any Fiscal Year are less than the maximum amount set forth
above for such Fiscal Year, such unused amount may be carried forward and
used
only in the next Fiscal Year (where it shall be deemed to be spent
last).”
(j) Section
10.04,
Minimum
Liquidity Threshold.
The
Credit Agreement is hereby amended by adding a new Section 10.04 as
follows:
“SECTION
10.04 Minimum
Liquidity Threshold.
The
Credit Parties shall not permit the Minimum Liquidity for the Credit Parties
to
be less than the amount set forth below (the “Minimum
Liquidity Threshold”).
|
Measurement
Date
|
Minimum
Liquidity
|
|
At
all times beginning from and after August 7, 2007
|
$10
million
|
|
On
December 31, 2007
|
$25
million
|
|
On
March 31, 2008
|
$20
million
|
|
At
all other times
|
$10
million
|
6
provided,
however,
that if
as of the end of any fiscal quarter ended on or after September 30, 2008
that
the Credit Parties’ Consolidated EBITDA for the twelve (12)-month period ending
on the most recent date set forth in Section 10.01 is more than $75,000,000,
then from and after such date, the Credit Parties shall no longer be required
to
meet the Minimum Liquidity Threshold.
(k) Section
11.01(a),
Failure
to Make Payments When Due,
of the
Credit Agreement is hereby amended by deleting such Section in its entirety
and
inserting the following in lieu thereof:
“SECTION
11.01(a) Failure
to Make Payments When Due.
The
Borrowers shall fail to pay (i) any principal or interest when due, or
(ii) any fees, Lender Expenses or any other monetary Obligation, and such
failure shall continue for a period of three (3) Business Days after such
amount
was due (in each case, whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise, including, in each instance the Applicable
Payment Fee and the Applicable Reduction Fee).”
(l) Section
11.02,
Remedies,
is
hereby amended by adding the following sentence at the end of such
section:
“For
the
avoidance of doubt, the parties agree that for purposes of determining the
amount of the Obligations due and payable as of any date, the Applicable
Reduction Fee and the Applicable Payment Fee shall be due and payable with
any
such reduction, termination, acceleration or exercise of remedies.”
4. Affirmation
and Acknowledgment of the Borrowers. The
Borrowers hereby ratify and confirm all of their Obligations to the Lenders,
including, without limitation, the Loans, and the Borrowers hereby affirm
their
absolute and unconditional promise to pay to the Lenders all indebtedness,
obligations and liabilities in respect of the Loans, the Letters of Credit,
and
all other amounts due under the Credit Agreement and the other Loan Documents
as
amended hereby. The Borrowers hereby confirm that the Obligations are and
remain
secured pursuant to the Loan Documents and pursuant to all other instruments
and
documents executed and delivered by the Borrowers as security for the
Obligations.
5. No
Other Waivers, Amendments or Consents.
Except
for the waiver in Section
1,
the
consents in Section
2
hereof
and the amendments
expressly set forth and referred to in Section
3
hereof,
the Credit Agreement shall remain unchanged and in full force and effect.
The
waiver and consents contained herein shall not extend beyond the terms expressly
set forth herein for such waiver and consents, nor impair any right or power
accruing to the Administrative Agent or any Lender with respect to any other
Default or Event of Default or any Default or Event of Default which occurs
after the date hereof. Nothing in this Agreement is intended or shall be
construed to be a novation of any Obligations or any part of the Credit
Agreement or any of the other Loan Documents or to affect, modify or impair
the
continuity or perfection of the Administrative Agent’s Liens under the Credit
Agreement and Loan Documents.
7
6. Representations,
Warranties and Covenants.
To
induce the undersigned Lenders to enter into this Agreement, the Credit Parties
hereby warrant, represent and covenant to and with to the Lenders and the
Administrative Agent that:
(a)
this Agreement has been duly authorized, executed and delivered by the Credit
Parties; (b) this Agreement and the Credit Agreement as amended hereby
constitute legal, valid and binding obligations of the Credit Parties,
enforceable in accordance with their respective terms; (c) after giving effect
to this Agreement, no Default or Event of Default has occurred and is continuing
as of this date; (d) no approval or consent of, or filing with, any governmental
agency or authority is required to make valid and legally binding the execution,
delivery or performance by the Credit Parties of this Agreement or the Credit
Agreement as amended hereby; and (e) after giving effect to this Agreement,
all
of the representations and warranties made by the Credit Parties in the Credit
Agreement are true and correct in all material respects on and as of the
date of
this Agreement (except to the extent that any such representations or warranties
expressly referred to a specific prior date and except for changes therein
expressly permitted or expressly contemplated by the Credit Agreement or
the
other Loan Documents). Any breach by the Credit Parties of any of its
representations, warranties and covenants contained in this Section
7
shall be
an Event of Default under the Credit Agreement.
8. Conditions
to Effectiveness.
This
Agreement shall not become effective unless and until the Administrative
Agent
has received (a) payment from the Borrowers of an amendment fee in an amount
equal to 0.125% times
the
Commitments, (b) one or more counterparts of this Agreement, duly executed,
completed and delivered by the Borrowers, the other Credit Parties and the
Required Lenders and (c) a fully-executed amendment to the Revolving Credit
Agreement, in the form attached hereto as Exhibit A.
9. Reimbursement
of Expenses.
The
Borrowers hereby agree to reimburse the Administrative Agent on demand for
all
reasonable fees and reasonable out-of-pocket costs and expenses (including
without limitation the reasonable and actual fees and expenses of its counsel)
incurred by the Administrative Agent in connection with the negotiation,
documentation and consummation of this Agreement and the other documents
executed in connection herewith and the transactions contemplated
hereby.
10.
Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID
STATE
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
11.
Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. To the extent permitted by applicable law, the
Borrowers hereby waive any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
8
12.
Counterparts.
This
Agreement may be executed in any number of several counterparts, all of which
shall be deemed to constitute but one original and shall be binding upon
all
parties, their successors and permitted assigns. Delivery of an executed
signature page of this Agreement by facsimile transmission or electronic
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
13.
Entire
Agreement.
The
Credit Agreement as amended through this Agreement embodies the entire agreement
between the parties hereto relating to the subject matter thereof and supersedes
all prior agreements, representations and understandings, if any, relating
to
the subject matter thereof.
14.
No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting
of
this
Agreement.
In the
event an ambiguity or question of intent or interpretation arises, this
Agreement
shall be
construed as if drafted jointly by the parties hereto and no presumption
or
burden of proof shall arise favoring or disfavoring any party by virtue of
the
authorship of any provisions of this Agreement.
15.
No
Third Party Reliance.
This
Agreement is solely for the benefit of the parties signatory hereto, their
successors and permitted assigns. No waiver, consent or amendment pursuant
to
this Agreement may be relied upon by any third parties.
16.
Release.
The
Credit Parties hereby remise, release, acquit, satisfy and forever discharge
the
Lenders, the Administrative Agent, the Collateral Agent, and the L/C Issuer
and
their respective agents, employees, officers, directors, predecessors, attorneys
and all others acting or purporting to act on behalf of or at the direction
of
the Lenders, the Administrative Agent, the Collateral Agent, or the L/C Issuer
of and from any and all manner of actions, causes of action, suit, debts,
accounts, covenants, contracts, controversies, agreements, variances, damages,
judgments, claims and demands whatsoever, in law or in equity, which any
of such
parties ever had or now has against the Lenders, the Administrative Agent,
the
Collateral Agent, and the L/C Issuer their respective agents, employees,
officers, directors, attorneys and all persons acting or purporting to act
on
behalf of or at the direction of the Lenders or the Administrative Agent
(“Releasees”),
for,
upon or by reason of any matter, cause or thing whatsoever arising from,
in
connection with or in relation to the Credit Agreement or any of the other
Loan
Documents (including this Agreement) through the date hereof. Without limiting
the generality of the foregoing, the Credit Parties waive and affirmatively
agree not to allege or otherwise pursue any defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights they do,
shall
or may have as of the date hereof, including, but not limited to, the rights
to
contest any conduct of the Lenders, Administrative Agent or other Releasees
on
or prior to the date hereof.
[Remainder
of page intentionally blank; next page is signature page]
9
IN
WITNESS WHEREOF,
the
parties have caused this Consent and Second Amendment to Revolving Credit
Agreement to be duly executed by their respective officers or representatives
thereunto duly authorized, as of the date first above written.
|
BORROWERS:
|
|
|
XXXXX
RIVER COAL COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
RIVER COAL SERVICE COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
LEECO,
INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
TRIAD
MINING, INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
10
|
TRIAD
UNDERGROUND MINING, LLC
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
Member
|
|
|
XXXXXXX
COAL CORPORATION
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
CREEK ELKHORN COAL CORPORATION
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
RIVER COAL SALES, INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXXXX
COAL LEASING COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
11
|
BLUE
DIAMOND COAL COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
ELKHORN COAL CORPORATION
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
GUARANTORS:
|
|
|
BDCC
HOLDING COMPANY, INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
EOLIA
RESOURCES, INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
12
|
SHAMROCK
COAL COMPANY, INCORPORATED
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
CREEK COAL COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
|
|
XXXXX
CREEK PROCESSING COMPANY
|
|
|
By:
/s/ Xxxxx X.
Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
CEO
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
13
|
LENDER:
XXXXXX
XXXXXXX SENIOR FUNDING, INC.
|
|
|
_________________________________________
|
|
|
By:
/s/ Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Authorized Signatory
|
|
|
COLLATERAL
AGENT
|
|
|
XXXXXX
XXXXXXX & CO. INCORPORATED
|
|
|
By:
/s/ Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
|
|
Title:
Authorized Signatory
|
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
14
|
LENDER:
|
|
|
Sandelman Finance 2006-1, Ltd.
|
|
|
By:
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title:
Head of Relative Value
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
15
|
LENDER:
|
|
|
Sandelman Finance 2006-2, Ltd.
|
|
|
By:
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
Title:
Head of Relative Value
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
15
|
LENDER:
|
|
|
Trilogy Portfolio Company.
|
|
|
By:
/s/ Xxxx Girechbera
|
|
|
Name:
Xxxx X. Girechbera
|
|
|
Title:
Principal
|
XXXXX
RIVER COAL COMPANY
WAIVER,
CONSENT AND SECOND AMENDMENT TO TERM CREDIT AGREEMENT
SIGNATURE
PAGE
