Exhibit 10.2
AMENDMENT TO CREDIT AGREEMENT
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Dated as of October __, 2001
This AMENDMENT ("Amendment") amends that certain Credit Agreement
dated as of November 30, 2000 (the "Credit Agreement") among XXXXXX ENERGY
COMPANY (the "Borrower"), A.T. XXXXXX COAL COMPANY, INC., the lenders party
thereto (collectively, the "Lenders"), CITIBANK, N.A., as administrative agent
for the Lenders (in such capacity "Administrative Agent"), PNC BANK, NATIONAL
ASSOCIATION, as syndication agent, and FIRST UNION NATIONAL BANK, as
documentation agent. Terms not otherwise defined herein are used herein as
defined in the 364- Day Credit Agreement.
PRELIMINARY STATEMENTS
WHEREAS, the Required Lenders have agreed to amend certain provisions of
the Credit Agreement on the terms set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment. Subject to the satisfaction of the conditions
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precedent specified in Section 2 hereof, the Credit Agreement shall be amended
as follows:
(a) The definition of "Applicable Margin" contained in Section 1.01
is hereby amended by deleting the percentage ".875%" contained in clause (v) and
replacing it with the percentage "1.075%".
(b) The definition of "Debt" contained in Section 1.01 is hereby
amended by deleting clause (iv) thereof in its entirety and replacing it with
the following:
"(iv) the outstanding attributed principal portion of all obligations
of such Person (a) as lessee under capital leases (determined in accordance with
GAAP) and (b) in respect of any financing obtained by such Person through an
asset-backed securitization program,"
(c) Section 1.01 is hereby amended by adding a new definition of
"Permitted Asset Backed Financing" in the proper alphabetical order therein as
follows:
"Permitted Asset-Backed Financing" means a financing of not more than
$150,000,000 in the aggregate at any one time outstanding obtained by the
Borrower or any of its Subsidiaries through an asset-backed securitization
program provided by an arranger selected by the Borrower or the relevant
Subsidiary and reasonably acceptable to the Administrative Agent."
Section 5.01(b) is hereby amended by adding the following
parenthetical before the first comma contained therein:
"(and for the two month period ending December 31, 2001)"
(d) Section 5.07 is hereby amended by deleting clause (a) therein it
in its entirety and replacing it with the following:
"(a) The Borrower will maintain a ratio of Consolidated Debt to
Consolidated EBITDA, as determined on the last day of each fiscal quarter,
for the four fiscal quarters ending on such day, of not more than (i) 3.25
to 1.0, for the fiscal quarter ending October 31, 2001, (ii) 3.0 to 1.0,
for the fiscal quarters ending December 31, 2001 and March 31, 2002, and
(iii) 2.75 to 1.0, for the fiscal quarters ending after March 31, 2002."
(e) Section 5.08 is hereby amended by deleting clause (k) contained
therein in its entirety and replacing it with the following clauses (k) and (l):
"(k) Liens created or deemed to exist in connection with a Permitted
Asset-Backed Financing (including any related filings or any financing
statements); provided that the aggregate attributed principal amount secured by
all such Liens shall not exceed $150,000,000 at any time; and
(l) Liens not otherwise permitted by the foregoing clauses of this
Section 5.08 securing Debt in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Tangible Net Worth, including but
not limited to Liens on any margin stock (as such term is defined in Regulation
U) purchased or carried by the Borrower or any of its Subsidiaries;"
(f) Section 5.09 is hereby amended by adding the following proviso
after the word "whole" contained in clause (a)(ii) thereof:
"; provided that, for purposes of this clause (ii), any sale of assets
pursuant to a Permitted Asset-Backed Financing shall not constitute a sale of
any substantial part of the assets of the Borrower and its Subsidiaries, taken
as a whole"
SECTION 2. Conditions to Effectiveness. This Amendment shall become
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effective as of the date above first written when, and only when, the
Administrative Agent shall have received counterparts of this Amendment executed
by the Required Lenders.
SECTION 3. Representations and Warranties. The representations and
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warranties contained in Article IV of the Credit Agreement are true and correct
in all material respects as of the date hereof, other than with respect to any
such representation or warranty that speaks as of a date certain, in which case
such representation or warranty is true and correct as of such date.
SECTION 4. Costs and Expenses. The Borrower hereby agrees to pay on
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demand all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration of this Amendment
(including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent) in accordance with the terms of Section 10.03(a)(ii)
of the Credit Agreement.
SECTION 5. No Event of Default. No Event of Default has occurred and
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is continuing as of the date hereof.
SECTION 6. Effect on the Credit Agreement. Except as specifically
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amended herein, the Credit Agreement and the other documents delivered
thereunder are, and shall continue to be, in full force and effect and are
hereby in all respects ratified and confirmed.
2
SECTION 7. Execution in Counterparts. This Amendment may be executed
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in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile shall be effective as delivery of an original counterpart of this
Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX ENERGY COMPANY, as Borrower
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
A.T. XXXXXX COAL COMPANY, INC., as Guarantor
By:
-----------------------------------------
Name:
Title:
3
CITIBANK, N.A. as Administrative Agent and as
Lender
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
4
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
5
FIRST UNION NATIONAL BANK
By:
------------------------------------
Name:
Title:
0
XXXXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXX
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
7
BANK ONE, NA
By:___________________________
Name:
Title:
8
THE ROYAL BANK OF SCOTLAND PLC
By:_____________________________
Name:
Title:
9
BRANCH BANKING AND TRUST COMPANY
By:______________________________
Name:
Title:
00
XXX XXXX XX XXX XXXX
By:_____________________________
Name:
Title:
11
DRESDNER BANK LATEINAMERIKA AG MIAMI
AGENCY
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
12
WACHOVIA BANK, N.A.
By:_____________________________
Name:
Title:
13
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By:_______________________________
Name:
Title:
14
MELLON BANK N.A.
By:_____________________________
Name:
Title:
15
BANK HAPOALIM
By:_____________________________
Name:
Title:
16
