AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
Execution Version
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT (this “Amendment”) dated as of January 6, 2011 to the Amended and Restated
Credit Agreement (the “Credit Agreement”) dated as of May 5, 2010, among PATRIOT COAL
CORPORATION, a Delaware corporation (the “Borrower”) and each lender from time to time
party thereto (collectively, the “Lenders” and individually, a “Lender”).
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement as set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement has the meaning
assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein”
and “hereby” and each other similar reference and each reference to “this Agreement” and each other
similar reference contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. New Definitions. Section 1.01 of the Credit Agreement is amended to add
the following new definitions thereto in appropriate alphabetical order:
“Amendment No. 1 to Credit Agreement” means that certain Amendment No. 1 to
Amended and Restated Credit Agreement, dated as of January 6, 2011, by and among the
Borrower and the Required Lenders.
“2006-2007 Notes” means those certain notes receivables held by the
Borrower as more particularly described in Annex I to Amendment No. 1 to Credit
Agreement.
“2006-2007 Notes Closing Date” means the date on which the sale of the 2006-2007
Notes permitted under Section 7.05(n) is consummated.
SECTION 3. Definition of Applicable Rate. The Applicable Rate schedule set forth in the
definition of Applicable Rate in Section 1.01 of the Credit Agreement is hereby deleted and
replaced with the following revised schedule:
| Applicable Rate | ||||||||
| Eurocurrency | ||||||||
| Consolidated | Rate Loans | |||||||
| Leverage | and Letters of | Base Rate | Commitment | |||||
| Level | Ratio | Credit | Loans | Fee | ||||
| I | > 3.00x | 4.500% | 3.500% | 0.750% | ||||
| II | > 2.50x | 4.250% | 3.250% | 0.750% | ||||
| III | > 2.00x | 4.000% | 3.000% | 0.625% | ||||
| IV | > 1.50x | 3.750% | 2.750% | 0.625% | ||||
| V | > 1.00x | 3.500% | 2.500% | 0.500% | ||||
| VI | < 1.00x | 3.250% | 2.250% | 0.500% | ||||
SECTION 4. Definition of Consolidated EBITDA. The definition of
“Consolidated EBITDA” in Section 1.01 of the Credit Agreement is hereby amended by (a) adding a “)”
at the end of clause (e) thereof, prior to the words “, plus (i)” and (b) adding the words
“without duplication and to the extent constituting a deduction in calculating Consolidated Net
Income” at the beginning of clause (ix) thereof.
SECTION 5. Mandatory Prepayments. Section 2.05(b) of the Credit Agreement
is hereby amended by replacing the word “or” with “,”and adding the words “or (n)” after “(m)” in
the first parenthetical thereof to read as follows:
“(other than any Disposition of any property permitted by Xxxxxxx 0.00 (x), (x), (x), (x),
(x), (x), (x) or (n))”.
SECTION 6. Interest in Swing Line Loans. Section 2.08(a)(iii) of the Credit
Agreement is hereby amended by adding the words “for Eurocurrency Rate Loans” after the words
“plus the Applicable Rate”.
SECTION 7. Dispositions. (a) Section 7.05 of the Credit Agreement is
amended by deleting the word “and” at the end of clause (l) thereof, replacing the “.” with the
words “; and” at the end of clause (m) thereof, and adding the following new clause (n) at the end
thereof to read as follows:
“(n) a Disposition of the 2006-2007 Notes; provided that the Borrower must receive
cash proceeds of such Disposition on the date of consummation of such Disposition of at
least $100,000,000.”
(b) The proviso at the end of Section 7.05 of the Credit Agreement is amended by replacing the
word “and” with “,” and adding the words “and (n)” after “(l)” to read as follows:
“provided, however, that any Disposition pursuant to Section 7.05(a),
(b), (c), (f), (g), (l) and (n) shall be for fair market
value and any Disposition pursuant to Section 7.05(m) shall be for Fair Market Value”.
SECTION 8. Restricted Payments. Section 7.06 of the Credit Agreement is
hereby amended by adding the following words at the end of clause (d) thereof to read as follows:
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“; provided, further that the Consolidated Net Leverage Ratio of the Borrower
both before and after giving pro forma effect to any such Restricted Payment must be no
greater than 3:00:1:00;”
SECTION 9. Financial Covenants. Section 7.11 of the Credit Agreement is hereby
amended by amending and restating clauses (a) and (b) thereof in their entirety as follows:
“(a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any fiscal quarter of the Borrower, (i) for the
period of four consecutive fiscal quarters of the Borrower ending on each of June
30, 2010, and September 30, 2010, to be less than 3.00:1.00, (ii) for the period of
four consecutive fiscal quarters of the Borrower ending on December 31, 2010, to be
less than 2.25:1.00, (iii) for the period of four consecutive fiscal quarters of the
Borrower ending on March 31, 2011, to be less than 2.00:1.00, (iv) for the period of
four consecutive fiscal quarters of the Borrower ending on June 30, 2011, to be less
than 1.75:1.00, (v) for the period of four consecutive fiscal quarters of the
Borrower ending on September 30, 2011, to be less than 2.50:1.00 and (vi) for the
period of four consecutive fiscal quarters of the Borrower ending on December 31,
2011, and on the last day of each fiscal quarter of the Borrower thereafter to be
less than 3.00:1.00.”
(b) Consolidated Net Leverage Ratio. Permit the Consolidated Net Leverage
Ratio as of the end of any fiscal quarter of the Borrower, (i) for the period of
four consecutive fiscal quarters of the Borrower ending on each of June 30, 2010,
and September 30, 2010, to be greater than 3.00:1.00, (ii) for the period of four
consecutive fiscal quarters of the Borrower ending on December 31, 2010, to be
greater than 3.50:1.00 (or from and after the 2006-2007 Notes Closing Date, to be
greater than 3:25:1:00), (iii) for the period of four consecutive fiscal quarters of
the Borrower ending on each of March 31, 2011, and June 30, 2011, to be greater than
4.00:1.00 (or from and after the 2006-2007 Notes Closing Date, to be greater than
3:75:1:00), (iv) for the period of four consecutive fiscal quarters of the Borrower
ending on September 30, 2011, to be greater than 3.25:1.00 (or from and after the
2006-2007 Notes Closing Date, to be greater than 3:00:1:00) and (v) for each period
of four consecutive fiscal quarters of the Borrower ending on December 31, 2011, and
on the last day of each fiscal quarter of the Borrower thereafter to be greater than
3.00:1.00.”
SECTION 10. Representations of Borrower. The Borrower represents and warrants that
(a) both before and after giving effect to this Amendment, the representations and warranties of
the Borrower set forth in Article V of the Credit Agreement and contained in each other Loan
Document, or which are contained in any document furnished at any time under or in connection with
the Credit Agreement, are true and correct in all material respects on and as of the Amendment
Effective Date, except to the extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct in all material
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respects as of such
earlier date, and (b) after giving effect to this Amendment, no Default or Event of Default will
have occurred and be continuing.
SECTION 11. Authority. The Borrower has the requisite corporate or other
organizational power and authority to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement (as amended hereby). Each of the Subsidiary
Guarantors has the requisite corporate or other organizational power and authority to execute and
deliver the Consent (as defined below). The execution, delivery and performance by the Borrower of
this Amendment and by the Subsidiary Guarantors of the Consent and the performance by the Borrower
and each other Loan Party of the Credit Agreement (as amended hereby) and each other Loan Document
to which it is a party, in each case, have been authorized by all necessary corporate or other
organizational action of such Person, and no other corporate or other organizational proceedings on
the part of each such Person is necessary to consummate such transactions.
SECTION 12. Enforceability. This Amendment has been duly executed and
delivered on behalf of the Borrower. The Consent has been duly executed and delivered by each of
the Subsidiary Guarantors. Each of this Amendment, the Consent and, after giving effect to this
Amendment, the Credit Agreement and the other Loan Documents, (a) is the legal, valid and binding
obligation of each Loan Party party hereto and thereto, enforceable against such Loan Party in
accordance with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (whether enforcement is sought by proceedings in equity or at
law) and (b) is in full force and effect. Neither the execution, delivery or performance of this
Amendment or of the Consent or the performance of the Credit Agreement (as amended hereby) will
adversely affect the validity, perfection or priority of the Administrative Agent’s Lien on any of
the Collateral or its ability to realize thereon. This Amendment is effective to amend the Credit
Agreement as provided therein.
SECTION 13. No Conflicts. Neither the execution and delivery of this
Amendment or the Consent nor the performance of and compliance with the terms and provisions hereof
or of the Credit Agreement (as amended hereby) by any Loan Party will, at the time of such
performance, (a) violate or conflict with any provision of its certificate of formation or limited
liability company agreement or other governing documents of such Person, (b) violate, contravene or
materially conflict with any Requirement of Law or Contractual Obligation (including, without
limitation, Regulation U), except for any violation, contravention or conflict which could not
reasonably be expected to have a Material Adverse Effect or (c) result in or require the creation
of any Lien (other than those permitted by 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 transactions
contemplated hereby.
SECTION 14. Effect of Amendment. (a) Except as specifically amended above,
the Credit Agreement and the other Loan Documents are and shall continue to be in full force and
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effect and are hereby in all respects ratified and confirmed. Without limiting the generality of
the foregoing, the Collateral Documents and all of the Collateral described therein do and
shall continue to secure the payment of all Obligations under and as defined therein.
(b) The execution, delivery and effectiveness of this Amendment shall neither operate as a
waiver of any right, power or remedy of any Secured Party under any of the Loan Documents, nor,
except as expressly provided herein, constitute a waiver or amendment of any provision of any of
the Loan Documents.
SECTION 15. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 16. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
SECTION 17. Effectiveness. This Amendment shall become effective on the
date hereof provided that the following conditions are met (the “Amendment Effective
Date”):
(a) the Administrative Agent shall have received from each of the Borrower, the Swing Line
Lender and the Required Lenders a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Administrative Agent) that such party has signed
a counterpart hereof;
(b) the Borrower shall have paid to the Administrative Agent for the account of each Lender
that has executed and delivered to the Administrative Agent or its counsel a signature page
approving this Amendment on or before 5 p.m. (New York City time) on January 6, 2011, a fee in an
amount equal to 0.25% of the aggregate amount of such Lender’s Commitment outstanding immediately
prior to the Amendment Effective Date; and
(c) the Administrative Agent shall have received counterparts of the Consent of Guarantors
attached hereto as Annex II (the “Consent”) executed by each of the Subsidiary
Guarantors as of the date hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the
date first above written.
| PATRIOT COAL CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Vice President & Treasurer | |||
Signature Page to Amendment No. 1
Acknowledged by:
BANK
OF AMERICA, N.A., as Lender
By: |
/s/ Xxxx X. Xxx | |||
| Title: Director | ||||
Signature Page to Amendment No. 1
Bank
Of Oklahoma, N.A.,
as a Lender
as a Lender
By: |
/s/ Bershunda X. Xxxxxxx | |||
| Title: Vice President | ||||
Signature Page to Amendment No. 1
| BARCLAYS BANK PLC, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Assistant Vice President | |||
Signature Page to Amendment No. 1
| CATERPILLAR FINANCIAL SERVICES CORPORATION, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Credit & Operations Manager — Syndications Caterpillar Financial Services Corporation |
|||
Signature Page to Amendment No. 1
| CITIBANK, N.A., as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 1
| COMERICA BANK, as a Lender |
||||
| By: | /s/ Xxxx X Xxxxxxxx | |||
| Name: | Xxxx X Xxxxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 1
| FIFTH THIRD BANK, as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment Xx. 0
| X&X Xxxxxxxx & Xxxxxx Xxxx, f/k/a Southwest Bank, An M&I Bank as a Lender |
||||
| By: | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Amendment No. 1
| XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Lender |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
| Date: | 12/22/2010 | |||
Signature Page to Amendment No. 1
| Natixis, as a Lender |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx X. Xxxxxxx, III | |||
| Name: | Xxxxx X. Xxxxxxx, III | |||
| Title: | Managing Director | |||
Signature Page to Amendment No. 1
| PNC NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Sr. Vice President | |||
Signature Page to Amendment No. 1
| XXXXXXX XXXXX BANK, FSB, as a Lender |
||||
| By: | /s/ Xxxxxxx XxXxxxxx | |||
| Name: | Xxxxxxx XxXxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Amendment No. 1
| RB International Finance USA LLC, Formerly known as RZB Finance LLC, as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | First Vice President | |||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 1
| SOCIÉTÉ GÉNÉRALE, as a Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
Signature Page to Amendment No. 1
| SovereignsBank, as a Lender |
||||
| By: | /s/ W. Xxx Xxxxx III | |||
| Name: | W. Xxx Xxxxx III | |||
| Title: | Vice President | |||
Signature Page to Amendment No. 1
| The PrivateBank and Trust Company, as a Lender |
||||
| By: | /s/ Xxxxxxxx XxXxxxxx | |||
| Name: | Xxxxxxxx XxXxxxxx | |||
| Title: | Managing Director | |||
Signature Page to Amendment No. 1
UBS LOAN FINANCE LLC,
as a Lender
as a Lender
By: |
/s/ Xxxx X. Xxxxx | ||||
| Title: Associate Director | |||||
By: |
/s/ Xxxx X. Xxxx | ||||
| Title: Associate Director | |||||
Signature Page to Amendment No. 1
By: |
/s/ K. Xxx Xxx | ||||
| Title: SVP & GM | |||||
By: |
/s/ Xxxxx Xxxxx | ||||
| Title: AVP | |||||
Signature Page to Amendment No. 1 [Patriot Coal Corporation]
Acknowledged by:
BANK OF AMERICA, N.A., as
Administrative Agent
Administrative Agent
By: |
/s/ Xxxxxxxx X. Carry | |||
| Title: Vice President | ||||
Signature Page to Amendment No. 1
Acknowledged by:
BANK OF AMERICA, N.A.,
as Swing Line Lender
as Swing Line Lender
By: |
/s/ Xxxx X. Xxx | |||
| Title: Director | ||||
Signature Page to Amendment No. 1
