THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit 10.24
THIRD
AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT
AGREEMENT (this “Agreement”), is made and
entered into as of November 5, 2008 (the “Effective Date”), by and among
Xxxxx River Coal Company, a corporation organized under the laws of Virginia
(“JRCC”), and certain of
JRCC’s Subsidiaries identified on the signature pages hereof, as borrowers (such
Subsidiaries, together with JRCC, are referred to hereinafter each individually
as a “Borrower”, and
collectively, jointly and severally, as the “Borrowers”), and the other
credit parties hereto, identified on the signature pages hereof as Guarantors
(together, the Borrowers and Guarantors, the “Credit Parties”), the lenders
party hereto from time to time (the “Lenders”), General Electric
Capital Corporation (“GECC”), a corporation formed
under the laws of Delaware, as co-lead arranger and
administrative agent for the Lenders (in such capacity, together with its
successors and assigns, if any, the “Administrative Agent”) and as
collateral agent for the Lenders (in such capacity, the “Collateral Agent”), with
Xxxxxx Xxxxxxx Senior Funding, Inc., having acted as co-lead arranger for the
Lenders with GECC.
W I T N E S S E T
H:
WHEREAS, the Borrowers, the
other Credit Parties signatory thereto, the Lenders and L/C Issuers party
thereto, and the Administrative Agent are parties to that certain Revolving
Credit Agreement, dated as of February 26, 2007 (as amended, restated,
supplemented and revised from time to time, the “Credit Agreement”), pursuant
to which the Lenders have committed to make certain loans and other extensions
of credit to the Borrowers upon the terms and conditions set forth
therein;
WHEREAS, the Borrowers have
informed the Administrative Agent and the Lenders that certain Events of Default
have occurred and are continuing as a result of the Borrowers’ failure to comply
with (a) the Minimum Consolidated EBITDA covenant set forth in Section 10.01 of
the Credit Agreement solely for the period ended September 30, 2008 and (b) the
Leverage Ratio covenant set forth in Section 10.02 of the Credit Agreement
solely for the period ended September 30, 2008 (collectively, the “Specified
Defaults”);
WHEREAS, the Borrowers have
requested that the Administrative Agent and the undersigned Lenders (a) waive
the Specified Defaults and (b) agree to amend certain of the terms and
provisions of the Credit Agreement; and
WHEREAS, the Lenders are
willing, upon and subject to certain conditions, to waive the Specified Defaults
and to amend the Credit Agreement in certain respects, all in accordance with
and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the premises, the covenants and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as
follows:
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Credit
Agreement.
2. Waiver. The Administrative Agent
and the undersigned Lenders, subject to the terms and conditions of this
Agreement, including without limitation the conditions to effectiveness
specified in Section
7 below, hereby waive the Specified Defaults.
3. Amendments
to the Credit Agreement.
(a) Section 1.01 of the
Credit Agreement, Definitions, is
hereby amended by restating the definitions of “Base Rate” and “Senior Funded
Indebtedness” in their entirety as follows:
“Base Rate” means, for
any day, the highest of (a) the Federal Funds Rate plus one half of one
percent, (b) the Prime Rate and (c) the sum of (x) the LIBOR Rate with respect
to a LIBOR Rate Loan with a LIBOR Period of three months, plus (y) the excess
of the Applicable Margin for Libor Rate Loans over the Applicable Margin for
Base Rate Loans, in each instance, as of such day. Any change in the
Base Rate due to a change in any of the foregoing shall be effective on the
effective date of such change in the Prime Rate, the Federal Funds Rate, or
LIBOR Rate with respect to a LIBOR Rate Loan with a LIBOR Period of three
months. If no offered rate for LIBOR exists as of such date, such
rate will be the rate of interest per annum, as determined by the Administrative
Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which
deposits of Dollars in immediately available funds are offered at 11:00 A.M.
(London, England time) two (2) Business Days prior to the applicable day by
major financial institutions reasonably satisfactory to the Administrative Agent
in the London interbank market for such LIBOR Period for the applicable
principal amount on such date of determination.
“Senior Funded
Indebtedness” means the Loans (including any outstanding Letter of Credit
hereunder) and the amount of the Term Loan Obligations (as that term is defined
in the Term Credit Agreement in effect as of the date hereof); provided, however, that Senior
Funded Indebtedness shall exclude (a) any outstanding Letter of Credit issued
hereunder to the extent that such outstanding Letter of Credit is Cash
Collateralized in a manner contemplated under and in accordance with the terms
and conditions set forth Agreement), and (b) any outstanding Term Letter of
Credit (as that term is defined in the Term Credit Agreement in effect as of the
date hereof) to the extent that such outstanding Term Letter of Credit is cash
collateralized in a manner contemplated under and in accordance with the terms
and conditions set forth in the Term Credit Agreement.
(b) Clause
(a) of Section
4.04 of the Credit Agreement, Fees, is hereby
amended by replacing the percentage of “0.50%” set forth in the first line
thereof with the percentage of “0.75%”:
(c) Section 10.01, Minimum Consolidated
EBITDA, of the Credit Agreement is hereby amended by restating the fourth
row of the table set forth therein (which row sets forth the minimum
Consolidated EBITDA for the period ending December 31, 2008) in its entirety as
follows:
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December 31,
2008
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(12
Months)
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$5.0
million
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(d) Section 10.02, Leverage Ratio, of
the Credit Agreement is hereby amended by inserting the following sentence
immediately after the table set forth in such Section:
Notwithstanding
the foregoing, the Borrowers shall not be required to comply with this Section 10.02 for the
Fiscal Quarter of the Borrowers ending on December 31, 2008.
4. Affirmation
and Acknowledgment of the Borrowers. The Borrowers
hereby ratify and confirm all of their Obligations to the Lenders, including,
without limitation, the Loans, and the Borrowers hereby affirm their absolute
and unconditional promise to pay to the Lenders all indebtedness, obligations
and liabilities in respect of the Loans, the Letters of Credit, and all other
amounts due under the Credit Agreement and the other Loan Documents as amended
hereby. The Borrowers hereby confirm that the Obligations are and
remain secured pursuant to the Loan Documents and pursuant to all other
instruments and documents executed and delivered by the Borrowers as security
for the Obligations.
5. No Other
Waivers, Amendments or Consents. Except for the
waiver in Section
2 hereof and the amendments expressly set forth and referred to in Section 3 hereof, the
Credit Agreement shall remain unchanged and in full force and
effect. The waiver contained herein shall not extend beyond the terms
expressly set forth herein for such waiver, nor impair any right or power
accruing to the Administrative Agent or any Lender with respect to any Default
or Event of Default (other than the Specified Defaults) or any Default or Event
of Default which occurs after the date hereof. Nothing in this
Agreement is intended or shall be construed to be a novation of any Obligations
or any part of the Credit Agreement or any of the other Loan Documents or to
affect, modify or impair the continuity or perfection of the Administrative
Agent’s Liens under the Credit Agreement and Loan Documents.
6. Representations,
Warranties and Covenants. To induce the undersigned Lenders to
enter into this Agreement, the Credit Parties hereby warrant, represent and
covenant to and with to the Lenders and the Administrative Agent that: (a) this Agreement
has been duly authorized, executed and delivered by the Credit Parties; (b) this
Agreement and the Credit Agreement as amended hereby constitute legal, valid and
binding obligations of the Credit Parties, enforceable in accordance with their
respective terms; (c) after giving effect to this Agreement and the Term Credit
Agreement Amendment (as defined below), no Default or Event of Default has
occurred and is continuing as of this date; (d) no approval or consent of, or
filing with, any governmental agency or authority is required to make valid and
legally binding the execution, delivery or performance by the Credit Parties of
this Agreement or the Credit Agreement as amended hereby; and (e) after giving
effect to this Agreement and the Term Credit Agreement Amendment, all of the
representations and warranties made by the Credit Parties in the Credit
Agreement are true and correct in all material respects on and as of the date of
this Agreement (except to the extent that any such representations or warranties
expressly referred to a specific prior date and except for changes therein
expressly permitted or expressly contemplated by the Credit Agreement or the
other Loan Documents). Any breach by the Credit Parties of any of its
representations, warranties and covenants contained in this Section 7 shall be an
Event of Default under the Credit Agreement.
7.
Conditions
to Effectiveness. This Agreement shall not become effective
unless and until the Administrative Agent has received (a) one or more
counterparts of this Agreement, duly executed, completed and delivered by the
Borrowers, the other Credit Parties and the Required Lenders, (b) a
fully-executed and effective fee letter dated as of the date hereof (the “Third Amendment Fee Letter”)
by and among the Borrowers and the Administrative Agent; (c) payment by the
Borrowers of all fees and expenses that are due and payable on or prior to the
date hereof; (d) a fully-executed Fourth Amendment to the Term Credit Agreement,
in substantially the form attached hereto as Exhibit A (the "Term
Credit Agreement
Amendment").
8. Reimbursement
of Expenses. The Borrowers hereby agree to reimburse the
Administrative Agent on demand for all reasonable fees and reasonable
out-of-pocket costs and expenses (including without limitation the reasonable
and actual fees and expenses of its counsel) incurred by the Administrative
Agent in connection with the negotiation, documentation and consummation of this
Agreement and the other documents executed in connection herewith and the
transactions contemplated hereby.
9. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SAID STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
10. Severability
of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, the Borrowers hereby waive any provision of
law that renders any provision hereof prohibited or unenforceable in any
respect.
11. Counterparts. This
Agreement may be executed in any number of several counterparts, all of which
shall be deemed to constitute but one original and shall be binding upon all
parties, their successors and permitted assigns. Delivery of an
executed signature page of this Agreement by facsimile transmission or
electronic transmission shall be as effective as delivery of a manually executed
counterpart hereof.
12. Entire
Agreement. The Credit Agreement as amended through this
Agreement embodies the entire agreement between the parties hereto relating to
the subject matter thereof and supersedes all prior agreements, representations
and understandings, if any, relating to the subject matter thereof.
13. No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
14. No Third
Party Reliance. This Agreement is solely for the benefit of
the parties signatory hereto, their successors and permitted
assigns. No waiver, consent or amendment pursuant to this Agreement
may be relied upon by any third parties.
15. Release. The
Credit Parties hereby remise, release, acquit, satisfy and forever discharge the
Lenders, the Administrative Agent, the Collateral Agent, and the L/C Issuer and
their respective agents, employees, officers, directors, predecessors, attorneys
and all others acting or purporting to act on behalf of or at the direction of
the Lenders, the Administrative Agent, the Collateral Agent, or the L/C Issuer
of and from any and all manner of actions, causes of action, suit, debts,
accounts, covenants, contracts, controversies, agreements, variances, damages,
judgments, claims and demands whatsoever, in law or in equity, which any of such
parties ever had or now has against the Lenders, the Administrative Agent, the
Collateral Agent, and the L/C Issuer their respective agents, employees,
officers, directors, attorneys and all persons acting or purporting to act on
behalf of or at the direction of the Lenders or the Administrative Agent (“Releasees”), for, upon or by
reason of any matter, cause or thing whatsoever arising from, in connection with
or in relation to the Credit Agreement or any of the other Loan Documents
(including this Agreement) through the date hereof. Without limiting
the generality of the foregoing, the Credit Parties waive and affirmatively
agree not to allege or otherwise pursue any defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights they do, shall
or may have as of the date hereof, including, but not limited to, the rights to
contest any conduct of the Lenders, Administrative Agent or other Releasees on
or prior to the date hereof.
[Remainder
of page intentionally blank; next page is signature page]
IN WITNESS WHEREOF, the
parties have caused this Third Amendment to Revolving Credit Agreement to be
duly executed by their respective officers or representatives thereunto duly
authorized, as of the date first above written.
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BORROWERS:
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XXXXX
RIVER COAL COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXX
RIVER COAL SERVICE COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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LEECO,
INC.
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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TRIAD
MINING, INC.
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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TRIAD
UNDERGROUND MINING, LLC
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXXXX
COAL CORPORATION
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXX
CREEK ELKHORN COAL CORPORATION
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
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XXXXX
RIVER COAL SALES, INC.
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXXXX
COAL LEASING COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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BLUE
DIAMOND COAL COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXX
ELKHORN COAL CORPORATION
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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GUARANTORS:
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BDCC
HOLDING COMPANY, INC.
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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EOLIA
RESOURCES, INC.
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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SHAMROCK
COAL COMPANY, INCORPORATED
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXX
CREEK COAL COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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XXXXX
CREEK PROCESSING COMPANY
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By:
/S/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title: CEO
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LENDER, ADMINISTRATIVE AGENT AND COLLATERAL
AGENT:
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GENERAL
ELECTRIC CAPITAL CORPORATION
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By:
/S/ Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
Duly Authorized Signatory
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Exhibit
A
[Term
Loan Credit Agreement Amendment]
