Contract
Exhibit
10.11
AMENDMENT
No. 1 AND WAIVER (this “Amendment
and Waiver”)
dated
as of February 22, 2006, to the CREDIT AGREEMENT dated as of May 31,
2005 (the “Credit
Agreement”),
among
XXXXX RIVER COAL COMPANY (the “Borrower”),
the
LENDERS from time to time party thereto, PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent, and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Syndication
Agent.
A.
Pursuant to the Credit Agreement, the Lenders have extended credit to the
Borrower, and have agreed to extend credit to the Borrower, in each case
pursuant to the terms and subject to the conditions set forth
therein.
B.
The
Borrower has requested that the Lenders agree to (i) waive compliance with
(A) the requirements set forth in Sections 2.11(c) and 6.04 of the
Credit Agreement to the extent, and only to the extent, necessary to permit
the
consummation of the transactions described on Annex A attached hereto (the
“Transactions”),
and
(B) certain requirements set forth in the Credit Agreement and
(ii) amend certain provisions of the Credit Agreement, in each case
pursuant to the terms and subject to the applicable conditions set forth
herein.
C. The
undersigned Lenders are willing, pursuant to the terms and subject to the
applicable conditions set forth herein, to grant such waivers and approve such
amendments.
D.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Credit Agreement (as amended hereby).
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to the applicable conditions set forth herein, the
parties hereto hereby agree as follows:
SECTION
1. Waivers.
(a)
Subject
to the applicable conditions set forth herein, the undersigned Lenders hereby
waive compliance with the requirements set forth in Sections 2.11(c) and 6.04
of
the Credit Agreement to the extent, but only to the extent, necessary to permit
the consummation of the Transactions; provided
that the
Borrower or any of its Subsidiaries shall not incur any other Indebtedness
in
financing the Transactions.
(b)
Subject
to the applicable conditions set forth herein, the undersigned Lenders hereby
waive compliance with Section 6.12 for any period of the fiscal quarters
ending
December 31, 2005, March 31, 2006 and June 30, 2006.
(c)
Subject
to the applicable conditions set forth herein, the undersigned Lenders hereby
waive compliance with Section 6.15(a) for the fiscal year ended
December 31,
2005.
SECTION
2. Amendment
of Section 1.01.
Section 1.01 of the Credit Agreement is amended by inserting the following
clause to the end of the definition of “Applicable
Rate”:
“Notwithstanding
the foregoing, the Loan ABR Spread shall be 2.00% and the Loan Eurodollar Spread
shall be 3.00% from the effective date of the Amendment and Waiver through
September 30, 2006.”
SECTION
3. Amendment
of Section 2.12(b).
Section 2.12(b) of the Credit Agreement is amended by deleting the
reference to “Participation fees and fronting fees accrued up to the last day of
March, June, September and December” and inserting “Participation fees and
fronting fees accrued up through the last day of March, June, September and
December” in lieu thereof.
SECTION
4. Amendment
of Section 2.12(c).
Section 2.12(c) of the Credit Agreement is amended by deleting the
reference to “2.75% per annum” in subclause (i)(a) thereof and inserting
“3.00% per annum, from the effective date of the Amendment and Waiver through
September 30, 2006, and 2.75% per annum thereafter” in lieu
thereof.
SECTION
5. Amendment
of Section 2.13(e).
Section 2.13(e) of the Credit Agreement is amended by deleting the first
sentence thereof and inserting in lieu thereof the following sentence “All
interest hereunder shall be computed on the basis of a year of 360 days, except
that interest computed by reference to the Alternate Base Rate at times when
the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).”
SECTION
6. Amendment
of Schedule 2.21(b).
Schedule 2.12(b) of the Credit Agreement is amended by deleting the reference
to
“ACT/365/66”
and
inserting “ACT/360” in lieu thereof.
SECTION
7. Amendment
of Section 5.01.
Section 5.01 is amended by adding the following paragraph:
“
(i) within
45 days after the end of each of the first two fiscal months of each fiscal
quarter in the 2006 fiscal year of the Borrower, its consolidated balance
sheet
and
related statements of operations, stockholders’ equity and cash flows as of the
end of and for such fiscal month and the then elapsed portion of the fiscal
year, all certified by one of its Financial Officers as presenting in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments
and
the absence of footnotes.”
2
SECTION
8. Amendment
of Section 6.13.
Section 6.13 of the Credit Agreement is amended in its entirety as
follows:
“SECTION 6.13.
Leverage
Ratio.
The
Borrower will not permit the Leverage Ratio as of any date during any period
set
forth below to exceed the ratio set forth opposite such period:
Period
|
Ratio
|
September 30
through December 31, 2005
|
3.50
to 1.00
|
January 1,
2006 through March 31, 2006
|
2.85
to 1.00
|
April 1,
2006 through September 30, 2006
|
2.50
to 1.00
|
October 1,
2006 through September 30, 2007
|
2.25
to 1.00
|
October 1,
2007 and thereafter
|
2.00
to 1.00”
|
SECTION
9. Amendment
of Section 6.15(a).
Section 6.15(a) of the Credit Agreement is amended in its entirety as
follows:
“SECTION 6.15.
Maximum
Capital Expenditures.
(a) The aggregate amount of Capital Expenditures made by the Borrower and
the Subsidiaries in any fiscal year shall not exceed the amount set forth below
opposite such fiscal year:
Year
|
Amount
|
2006
|
$85,000,000
|
2007
and each fiscal year thereafter
|
$80,000,000”
|
SECTION
10. Representations
and Warranties.
The
Borrower represents and warrants to the Administrative Agent and the Lenders
that:
(a) This
Amendment and Waiver has been duly authorized, executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the
Borrower,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(b)
None
of
the execution, delivery or performance by the Borrower of this Amendment and
Waiver or the compliance by the Borrower with the terms and provisions
hereof (i) will contravene any material provision of any applicable law,
statute, rule or regulation, or any order, writ, injunction or decree of any
Governmental Authority, (ii) will conflict or be inconsistent with, or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition
of
(or the obligation to create or impose) any Lien upon any of the property or
assets of Borrower or any of its respective Subsidiaries pursuant to the terms
of any indenture, mortgage, deed of trust, loan agreement, credit agreement
or
any other material agreement or
3
instrument
to which Borrower or any of its respective Subsidiaries is a party or by which
Borrower or any of its respective Subsidiaries or any of the property or assets
of Borrower or any of its respective Subsidiaries are bound or to which Borrower
or any of its respective Subsidiaries may be subject or (iii) will violate
any provision of the certificate or articles of incorporation, by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or equivalent
organizational document, as the case may be, of Borrower or any of its
respective Subsidiaries.
(c)
The
representations and warranties of Borrower set forth in the Loan Documents
are
true and correct on and as of the date hereof, except to the extent such
representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties are true and correct as of such earlier
date.
(d)
After
giving effect to this Amendment and Waiver, no Default or Event of Default
shall
have occurred and be continuing.
SECTION
11. Amendment
Fee.
In
consideration of the agreements of the Lenders contained in this Amendment
and
Waiver, the Borrower agrees to pay to the Administrative Agent, for the account
of each consenting Lender that delivers an executed counterpart of this
Amendment and Waiver to the Administrative Agent prior to 5:00 p.m.,
New York City time, on February 17, 2006, an amendment fee in an
amount equal to 0.25% of such Lender’s Revolving Exposures, Synthetic LC
Exposure, unused Revolving Commitments and Excess Credit-Linked Deposits as
of
such date.
SECTION
12. Conditions
to Effectiveness.
This
Amendment and Waiver shall become effective as of the date (the “Effective
Date”)
on
which each of the following conditions has been satisfied:
(a)
the
Administrative Agent shall have received counterparts of this Amendment and
Waiver that, when taken together, bear the signatures of the Borrower and
the
Required Lenders;
(b)
the
Administrative Agent shall have received a certificate of a Financial Officer
of
the Borrower, dated the Effective Date, to the effect that the representations
and
warranties set forth in Section 10 hereof are true and correct;
(c)
the
Borrower shall have paid to the Administrative Agent, in immediately available
funds, for the account of each of the Lenders entitled thereto, the Amendment
Fee referred to in Section 11 hereof; and
(d)
to
the
extent invoiced, the Administrative Agent shall have received payment or
reimbursement of its reasonable out-of-pocket expenses in connection with
this
Amendment and Waiver and any other out-of-pocket expenses of the Administrative
Agent required to be paid or reimbursed pursuant to the Credit Agreement,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent.
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SECTION
13. Effect
of Amendment and Waiver.
Except
as specifically set forth herein, this Amendment and Waiver shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lenders, any Agent, the Collateral Agent,
the Borrower under the Credit Agreement or any other Loan Document, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document, all of which are ratified and affirmed in all respects
and
shall continue in full force and effect. Nothing herein shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification
or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document in
similar or different circumstances. After the date hereof, any reference to
the
Credit Agreement shall mean the Credit Agreement as amended and waived hereby.
This Amendment and Waiver shall be a Loan Document for all
purposes.
SECTION
14. Applicable
Law.
THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
15. Counterparts.
This
Amendment and Waiver may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one agreement. Delivery of an executed signature page to this
Amendment and Waiver by facsimile or other electronic transmission shall be
effective as delivery of a manually signed counterpart of this Amendment and
Waiver.
SECTION
16. Expenses.
The
Borrower agrees to reimburse the Administrative Agent for its out-of-pocket
expenses in connection with this Amendment and Waiver, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel
for the Administrative Agent.
SECTION
17. Headings.
The
Section headings used herein are for convenience of reference only, are not
part
of this Amendment and Waiver and are not to affect the construction of, or
to be
taken into consideration in interpreting, this Amendment and
Waiver.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to
be
duly executed by their respective authorized officers as of the day and year
first written above.
XXXXX RIVER COAL COMPANY, as Borrower, | ||
|
|
|
By: | Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx |
||
Title: Vice President |
PNC
BANK, NATIONAL ASSOCIATION, as Lender and as
Administrative
Agent
|
||
|
|
|
By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |
Name: Xxxxxxxxxxx X. Xxxxxxx |
||
Title: SVP |
6
SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Bear Xxxxxxx Corporate Lending Inc. |
|
by | /s/ Xxxxxx Xxxxxxxxxxxx | |
Name: Xxxxxx Xxxxxxxxxxxx |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Bank of America
|
|
by | /s/ Xxxxxxxx X. B | |
Name: Xxxxxxxx X. B |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
BRIDGEPORT
CLO LTD
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
BRYN
MAWR CLO, Ltd.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Caterpillar Financial Services
|
|
by | /s/ Xxxxxxxxxxx X. Xxxxxxxxx | |
Name: Xxxxxxxxxxx X. Xxxxxxxxx |
||
Title: Global Operations Manager |
7
SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
CUMBERLAND
II CLO LTD.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
7
SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
THE FOOTHILL GROUP, INC.
|
|
by | /s/ Xxxxxx X. Xxxxxx | |
Name: Xxxxxx X. Xxxxxx |
||
Title: Sr. Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
FOREST
CREEK CLO, Ltd.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
LONG
GROVE CLO, LIMITED
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
MARKET
SQUARE CLO, Ltd.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
MARQUETTE
PARK CLO LTD.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Muirfield Trading
LLC
|
|
by | /s/ M. Xxxxxxxx Xxxxxxx | |
Name: M. Xxxxxxxx Xxxxxxx |
||
Title: Assistant Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY
CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
ROSEMONT CLO
LTD.
By:
Deerfield
Capital Management LLC
as
its
Collateral Manager
|
||
|
|
|
By | /s/ Xxxxx Sakon | |
Name: Xxxxx Sakon |
||
Title: Vice President |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors, LLC as Collateral Manager for Loan Funding XI LLC,
as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Katonah
II, Ltd. by Sankaty Advisors
LLC as Sub-Advisors
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for Race Point CLO, Limited, as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for XXXXX POINT CLO, LTD., as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Chatgham Light II CLO, Limited, by Sanakty
Advisors LLC,
as Collateral Manager
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for Castle Hill I-INGOTS, Ltd., as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for Race Point II CLO, Limited, as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for Castle Hill III CLO, as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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SIGNATURE
PAGE TO AMENDMENT NO. 1 AND WAIVER, DATED AS
OF FEBRUARY 22, 2006, TO XXXXX RIVER COAL COMPANY CREDIT
AGREEMENT
To
Approve the Amendment and Waiver:
Name
of Institution:
|
||
|
Sankaty
Advisors,
LLC as Collateral Manager for Castle Hill II-INGOTS, Ltd.,
as Term
Lender
|
|
by | /s/ Xxxxx X. Xxxxxxx III | |
Name: Xxxxx X. Xxxxxxx III |
||
Title: Managing Director |
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ANNEX A
Transactions
The
Borrower will purchase from the Indiana Land and Mineral Company, LLC
underground coal reserves and the unit train loadout and a permitted surface
mine reserve. The purchase price is expected to be $9,000,000 in cash (but
will
not exceed $10,000,000 in cash).