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EXHIBIT 10.7(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (herein called the
"Amendment") made as of December 19, 1997, by and among AEI Holding Company,
Inc., a Delaware corporation ("Borrower"), NationsBank of Texas, N.A., a
national banking association ("NationsBank"), individually and as Agent
("Agent"), and the Lenders named on Schedule 3 to the Original Agreement
("Lenders"),
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain
Credit Agreement dated as of November 11, 1997 (the "Original Agreement") for
the purpose and consideration therein expressed, whereby Lenders became
obligated to make loans to Borrower as therein provided; and
WHEREAS, Borrower, Agent and Lenders desire to amend the Original
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement and in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1. Terms Defined in the Original Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Original Agreement shall have the same meanings whenever
used in this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" shall mean this First Amendment to Credit Agreement.
"Credit Agreement" shall mean the Original Agreement as amended
hereby.
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ARTICLE II.
Amendment to Original Agreement
Section 2.1. Net Worth. Section 7.14 of the Original Agreement is
hereby amended in its entirety to read as follows:
"Borrower's Consolidated Net Worth will never be less than the
Maximum Net Worth plus the sum of (a) if Borrower's Consolidated Net
Worth is a positive number, fifty percent (50%) of Borrower's Net
Income, or if Borrower's Net Worth is a negative number, seventy-five
percent (75%) of Borrower's Net Income; and (b) one hundred percent
(100%) of the proceeds of the issuance by Borrower of any equity. As
used in this section, the term "Maximum Net Worth" means the sum of
(i) negative $63,000,000 plus (ii) the amount of any deferred tax
benefit (if a positive number) available to Borrower as a result of
the transfer to any Restricted Person of the assets described in
Schedule 1 to the Borrower Security Agreement."
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when, and only when Agent shall have received
all of the following, duly executed and delivered and in form, substance and
date satisfactory to Agent and a Restricted Person shall have purchased the
assets described in Schedule 1 to the Borrower Security Agreement:
(a) This Amendment and any other documents that Lenders are to
execute in connection herewith.
(b) A Guaranty, Security Agreement, and all applicable financing
statements relating thereto executed by Mining Technologies, Inc. in
accordance with the requirements of the Credit Agreement.
(c) A certificate of the President and Secretary of Borrower
dated the date of this Amendment (i) certifying that all of the
representations and warranties set forth in Article IV hereof are true
and correct at and as of the time of such effectiveness, (ii)
certifying that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of Borrower authorizing
the execution, delivery and performance of this Amendment and
certifying the names and true signatures of the officers of Borrower
authorized to sign this Amendment, (iii) certifying that attached
thereto is a true and complete copy of the charter documents of
Borrower, with all amendments thereto, certified by the appropriate
official of Borrower's state of organization and the bylaws of
Borrower, and (iv) certifying satisfaction of the conditions set out
in subsections (a), (b), (c), and (d) of Section 4.3 of the Credit
Agreement.
(d) Solvency Certificate of Mining Technologies, Inc.
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(e) Opinion of Borrower's counsel addressing such matters as
Agent may reasonably request.
(f) Such supporting documents as Agent may reasonably request.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrower. In order to
induce each Lender to enter into this Amendment, Borrower represents and
warrants to each Lender that:
(a) The representations and warranties contained in Sections 5.1
through 5.17 of the Original Agreement are true and correct at and as
of the time of the effectiveness hereof.
(b) Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow
monies and to perform its obligations under the Credit Agreement.
Borrower has duly taken all corporate action necessary to authorize
the execution and delivery of this Amendment and to authorize the
performance of the obligations of Borrower hereunder.
(c) The execution and delivery by Borrower of this Amendment, the
performance by Borrower of its obligations hereunder and the
consummation of the transactions contemplated hereby do not and will
not conflict with any provision of law, statute, rule or regulation or
of the certificate of incorporation and bylaws of Borrower, or of any
material agreement, judgment, license, order or permit applicable to
or binding upon Borrower, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of Borrower.
Except for those which have been obtained, no consent, approval,
authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by
Borrower of this Amendment or to consummate the transactions
contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and
the Credit Agreement will be a legal and binding obligation of
Borrower, enforceable in accordance with its terms, except as limited
by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and by equitable
principles of general application.
(e) No Default exists as of the date hereof.
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ARTICLE V.
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Credit Agreement in any Loan Document shall be deemed to be a reference
to the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lenders under the Credit
Agreement, the Notes, or any other Loan Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes or any other Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Borrower or any Restricted Person
hereunder or under the Credit Agreement to any Lender shall be deemed to
constitute representations and warranties by, and/or agreements and covenants
of, Borrower under this Amendment and under the Credit Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Credit Agreement pertaining to Loan Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the provisions of Section 10.8 of the Credit
Agreement.
Section 5.5. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
BORROWER:
AEI HOLDING COMPANY, INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: President
Address: 0000 Xxxxx Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
AGENT AND LENDERS:
NATIONSBANK OF TEXAS, N.A.,
as Agent and Lender
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Senior Vice President
Address: 000 Xxxx Xxxxxx, Xxxxx 00
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
THE PROVIDENT BANK
By: /s/ Xxx X. Xxxxxxxxxxxx
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Xxx X. Xxxxxxxxxxxx
Vice President
Address: Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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CONSENT AND AGREEMENT
Tennessee Mining, Inc., a Kentucky corporation, hereby (i) consents to
the provisions of this Amendment and the transactions contemplated herein, (ii)
ratifies and confirms the Guaranty dated as of November 11, 1997 made by it for
the benefit of Lenders ("Guaranty"), and (iii) ratifies and confirms any and all
security agreements, deeds of trust, mortgages, chattel mortgages, pledges and
other security or other documents, agreements or instruments (collectively, the
"Security Documents") delivered by it to Agent for the benefit of Lenders in
connection with the Credit Agreement or any transaction contemplated therein and
agrees that all of its respective obligations and covenants thereunder (to the
extent it is a party thereto) shall remain unimpaired by the execution and
delivery of the Amendment and the other documents and instruments executed in
connection therewith and that the Guaranty and Security Documents to which it is
a party shall remain in full force and effect.
THIS CONSENT AND AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned as
of December 19, 1997.
TENNESSEE MINING, INC.
BY:
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Name:
Title:
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CONSENT AND AGREEMENT
Xxxxxxxxx Mining, Inc., a Kentucky corporation, hereby (i) consents to
the provisions of this Amendment and the transactions contemplated herein, (ii)
ratifies and confirms the Guaranty dated as of November 11, 1997 made by it for
the benefit of Lenders ("Guaranty"), and (iii) ratifies and confirms any and all
security agreements, deeds of trust, mortgages, chattel mortgages, pledges and
other security or other documents, agreements or instruments (collectively, the
"Security Documents") delivered by it to Agent for the benefit of Lenders in
connection with the Credit Agreement or any transaction contemplated therein and
agrees that all of its respective obligations and covenants thereunder (to the
extent it is a party thereto) shall remain unimpaired by the execution and
delivery of the Amendment and the other documents and instruments executed in
connection therewith and that the Guaranty and Security Documents to which it is
a party shall remain in full force and effect.
THIS CONSENT AND AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned as
of December 19, 1997.
XXXXXXXXX MINING, INC.
By:
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Name:
Title:
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CONSENT AND AGREEMENT
Xxxxx-Xxxxx Co., Inc., a Kentucky corporation, hereby (i) consents to
the provisions of this Amendment and the transactions contemplated herein, (ii)
ratifies and confirms the Guaranty dated as of November 11, 1997 made by it for
the benefit of Lenders ("Guaranty"), and (iii) ratifies and confirms any and all
security agreements, deeds of trust, mortgages, chattel mortgages, pledges and
other security or other documents, agreements or instruments (collectively, the
"Security Documents") delivered by it to Agent for the benefit of Lenders in
connection with the Credit Agreement or any transaction contemplated therein and
agrees that all of its respective obligations and covenants thereunder (to the
extent it is a party thereto) shall remain unimpaired by the execution and
delivery of the Amendment and the other documents and instruments executed in
connection therewith and that the Guaranty and Security Documents to which it is
a party shall remain in full force and effect.
THIS CONSENT AND AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned as
of December 19, 1997.
XXXXX-XXXXX CO., INC.
By:
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Name:
Title:
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CONSENT AND AGREEMENT
Xxxxxxxxx Enterprises, Inc., a Kentucky corporation, hereby (i)
consents to the provisions of this Amendment and the transactions contemplated
herein and (ii) ratifies and confirms the Stock Pledge Agreement dated as of
November 11, 1997 made by it for the benefit of Lenders ("Stock Pledge
Agreement") and agrees that all of its respective obligations and covenants
thereunder shall remain unimpaired by the execution and delivery of the
Amendment and the other documents and instruments executed in connection
therewith and that the Stock Pledge Agreement shall remain in full force and
effect.
THIS CONSENT AND AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned as
of December 19, 1997.
XXXXXXXXX ENTERPRISES, INC.
By:
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Name:
Title:
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CONSENT AND AGREEMENT
Xxxxx Xxxxxxxxx hereby (i) consents to the provisions of this Amendment
and the transactions contemplated herein and (ii) ratifies and confirms the
Stock Pledge Agreement dated as of November 11, 1997 made by him for the benefit
of Lenders ("Stock Pledge Agreement") and agrees that all of his respective
obligations and covenants thereunder shall remain unimpaired by the execution
and delivery of the Amendment and the other documents and instruments executed
in connection therewith and that the Stock Pledge Agreement shall remain in full
force and effect.
THIS CONSENT AND AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Certificate is executed by the undersigned as
of December 19, 1997.
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Xxxxx Xxxxxxxxx
