THIRD AMENDMENT OF THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.10
THIRD AMENDMENT OF
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT OF THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of October 12, 2007, is by and among INTREPID MINING LLC, a Delaware limited liability company (“IMLLC”), formerly by way of conversion Intrepid Mining LLC, a Colorado limited liability company, INTREPID POTASH-MOAB, LLC, a Delaware limited liability company (“IPMLLC”), INTREPID POTASH-NEW MEXICO, LLC, a New Mexico limited liability company (“IPNMLLC”), INTREPID POTASH-WENDOVER, LLC, a Colorado limited liability company (“IPWLLC”), U.S. BANK NATIONAL ASSOCIATION, a national banking association (“USB”), in its capacity as lead arranger and Agent (“Agent”), and the Lenders (as defined below).
RECITALS
A. IMLLC, IPMLLC, IPNMLLC and IPWLLC (“Borrowers”), Agent and the lenders named therein (the “Lenders”) are parties to a Third Amended and Restated Credit Agreement dated as of March 9, 2007, as amended pursuant to a First Amendment of Third Amended and Restated Credit Agreement dated as of May 23, 2007 and a Second Amendment of Third Amended and Restated Credit Agreement dated as of September 11, 2007 (as so amended, the “Credit Agreement”). Capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement.
B. Borrowers, Agent and the Lenders desire that this Amendment be executed and delivered in order to revise one of the exceptions to the prohibition of Distributions by IMLLC, as set forth in Section 6.2(m) of the Credit Agreement.
AMENDMENT
NOW, THEREFORE, in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
| 1. | Credit Agreement. The Credit Agreement shall be, and hereby is, amended as follows: |
| a. | By substituting the following for Section 6.2(m)(2) on page 47 of the Credit Agreement: |
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(2) IMLLC may make a Distribution: (A) prior to October 12, 2007, at a time when the Cash Flow Leverage Ratio (Distributions) of IMLLC and its Consolidated Affiliates shall not be greater than 2.0:1.0 immediately before and immediately after such Distribution and as of both the beginning and the end of the Fiscal Quarter in which such Distribution shall have occurred, and (B) from and after October 12, 2007, at a time when the Cash Flow Leverage Ratio (Distributions) of IMLLC and its Consolidated Affiliates shall not be greater than 2.5:1.0 immediately before and immediately after such Distribution and as of both the beginning and the end of the Fiscal Quarter in which such Distribution shall have occurred; provided that, notwithstanding the foregoing, IMLLC shall be permitted to make Distributions up to but not in excess of $15,000,000 in the aggregate during the time period from October 12, 2007 to November 30, 2007,
| 2. | Loan Documents. All references in any document to the Credit Agreement shall be deemed to refer to the Credit Agreement, as amended pursuant to this Amendment. |
| 3. | Certification by Borrowers. Borrowers hereby certify to Agent and the Lenders that, as of the date of this Amendment: (a) all of Borrowers’ representations and warranties contained in the Credit Agreement are true, accurate and complete in all material respects, (b) Borrowers have performed and complied with all agreements and conditions required to be performed or complied with by them under the Credit Agreement and/or any Loan Document on or prior to this date, and (c) no Default or Event of Default has occurred and is continuing under the Credit Agreement. |
| 4. | Continuation of the Credit Agreement. Except as specified in this Amendment, the provisions of the Credit Agreement shall remain in full force and effect, and if there is a conflict between the terms of this Amendment and those of the Credit Agreement or any other document executed and delivered in connection therewith, the terms of this Amendment shall control. |
| 5. | Miscellaneous. This Amendment shall be governed by and construed under the laws of the State of Colorado and shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. |
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EXECUTED as of the date first above written.
| BORROWERS: | ||
| INTREPID MINING LLC By: IPC Management LLC, its Manager | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
| INTREPID POTASH-MOAB, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
| INTREPID POTASH-NEW MEXICO, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
| INTREPID POTASH-WENDOVER, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
| AGENT: | ||
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ J. Xxxxx Xxxxxxxxx | |
| J. Xxxxx Xxxxxxxxx | ||
| Vice President | ||
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| LENDERS: | ||
| AGFIRST FARM CREDIT BANK | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx | ||
| Vice President | ||
| BANK OF THE WEST | ||
| By: | /s/ G. S. Xxxx Xxxxxxxx | |
| G. S. Xxxx Xxxxxxxx | ||
| Senior Vice President | ||
| COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND” NEW YORK BRANCH | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Xxxx X. Xxxxxx | ||
| Executive Director | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx | ||
| Executive Director | ||
| FARM CREDIT SERVICES OF MINNESOTA VALLEY, PCA D/B/A FCS COMMERCIAL FINANCE GROUP | ||
| By: | /s/ Xxxxxx X. Best | |
| Xxxxxx X. Best | ||
| Assistant Vice President | ||
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| GUARANTY BANK AND TRUST COMPANY | ||
| By: | /s/ Xxxx Xxxxxxxxx | |
| Xxxx Xxxxxxxxx | ||
| Senior Vice President | ||
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ J. Xxxxx Xxxxxxxxx | |
| J. Xxxxx Xxxxxxxxx | ||
| Vice President | ||
| UNITED WESTERN BANK | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | ||
| Senior Vice President | ||
| VECTRA BANK COLORADO NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Assistant Vice President | ||
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| CONSENTED AND AGREED TO BY THE UNDERSIGNED, AS GUARANTORS: | ||
| MOAB GAS PIPELINE, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
| XX XXXXXX LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxx III | |
| Xxxxxx X. Xxxxxxxxx III | ||
| Manager | ||
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