SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated as of
September 29, 2011, and is made by and among XXXXXXXXX COAL COMPANY, INC., a Delaware
corporation, XXXXXXXXX LAND COMPANY, LLC, a Delaware limited liability company, WESTERN MINERAL
DEVELOPMENT, LLC, a Delaware limited liability company, WESTERN DIAMOND LLC, a Nevada limited
liability company, WESTERN LAND COMPANY, LLC, a Kentucky limited liability company, and ELK
CREEK, L.P., a Delaware limited partnership (each a “Borrower” and collectively, the
“Borrowers”), the GUARANTORS PARTY HERETO (individually a “Guarantor” and collectively,
the “Guarantors”, and together with the Borrowers, the “Loan Parties”), the FINANCIAL
INSTITUTIONS PARTY HERETO (individually a “Lender” and collectively, the
“Lenders”) and PNC BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent
for the Lenders (the “Administrative Agent”).
RECITALS:
WHEREAS, the Loan Parties, the Lenders and the Administrative Agent are parties to that
certain Credit Agreement, dated as of February 9, 2011, as amended by that certain First
Amendment to Credit Agreement, dated as of July 1, 2011 (collectively, the “Credit
Agreement”);
WHEREAS, the Loan Parties desire to conduct certain equity offerings (as described below)
and, to facilitate such offerings, will (a) change the name of Xxxxxxxxx Energy, Inc. to
Xxxxxxxxx Energy Holdings, Inc. (“AH”); (b) convert Xxxxxxxxx Land Company, LLC from a
limited liability company to a corporation, and in connection therewith, change the name of
Xxxxxxxxx Land Company, LLC to Xxxxxxxxx Energy, Inc. (“AE”) and issue stock from the
resulting corporation in exchange for the prior membership interests of Xxxxxxxxx Land
Company, LLC (such actions are collectively referred to as the “2011 Conversion”); and
(c) merge Xxxxxxxxx Resources Holdings, LLC into AH;
WHEREAS, AE may sell additional equity in AE pursuant to private placement(s) and/or public
offering(s) (the “AE Equity Offering”);
WHEREAS, Elk Creek L.P. may sell additional equity in Elk Creek L.P. pursuant to
private placement(s) and/or public offering(s) (the “Elk Creek Equity Offering”);
WHEREAS, to permit the foregoing transactions and to modify certain provisions of the
Credit Agreement, the Loan Parties have requested that the Lenders agree to various amendments
as set forth herein, and the Lenders have agreed to amend the Credit Agreement as hereinafter
provided.
NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound, and
incorporating the above-defined terms herein, the parties hereto agree as follows:
1. Recitals; Capitalized Terms. The foregoing recitals are true and correct and
incorporated herein by reference. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings given to them in the Credit Agreement.
2. Amendments to Credit Agreement.
(a) Amended Definitions. The following definitions are hereby amended and restated as follows:
“AE Equity Offering shall mean the issuance of equity out of
Xxxxxxxxx Energy, Inc. pursuant to a private placement(s) and/or public
offering(s), as permitted by the First Amendment and Second Amendment.”
“Elk Creek Equity Offering shall mean the issuance of equity out
of Elk Creek L.P. pursuant to a private placement(s) and/or public offering(s),
as permitted by the First Amendment and Second Amendment.”
(b) New Definitions. The following new definitions are hereby inserted in Section
1.1 of the Credit Agreement in alphabetical order:
“Second Amendment shall mean that certain Second Amendment to this
Agreement dated as of the Second Amendment Effective Date.”
“Second Amendment Effective Date shall mean September 29, 2011.”
3. Conditions to Effectiveness. The amendments contained in this Amendment shall
become effective upon satisfaction of each of the following conditions being satisfied to the
satisfaction of the Administrative Agent:
(a) Execution and Delivery of this Amendment. The Borrowers, the Guarantors, the
Required Lenders and the Administrative Agent shall have executed and delivered this Amendment.
(b) Representations, Covenants and Events of Default. All representations and
warranties of the Loan Parties set forth in the Credit Agreement are true and correct, the Loan
Parties are in compliance with each of the covenants and conditions hereunder, and no Event of
Default or Potential Default exists.
(c) Material Adverse Change; Litigation. Each of the Loan Parties shall provide a
certificate that represents and warrants to the Administrative Agent and the Lenders that by its
execution and delivery hereof to the Administrative Agent, after giving effect to this Amendment
and the transactions contemplated herein:
(i) no Material Adverse Change shall have occurred with respect to the
Borrowers or any of the Loan Parties since the Closing Date of the Credit Agreement;
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(ii) no default shall have occurred with respect to any note or credit agreement
governing existing indebtedness of the Borrowers or Guarantors as a result of any of the
transactions contemplated herein; and
(iii) there are no actions, suits, investigations, litigation or governmental
proceedings pending or, to the Loans Parties’ knowledge, threatened against any of the
Loan Parties that could reasonably be expected to result in a Material Adverse Change or
relate to any of the transactions contemplated herein.
(d) Consents and Approvals. No consent, approval, exemption, order or authorization
of, or a registration or filing with, any Official Body or any other Person is required by any
Law or any agreement in connection with the execution, delivery and carrying out of this
Amendment by any Loan Party other than such consents, approvals, exemptions, orders or
authorizations that have already been obtained.
4. Miscellaneous.
(a) Representations and Warranties. By its execution and delivery hereof to the
Administrative Agent, each of the Loan Parties represents and warrants to the Administrative
Agent and the Lenders that such Loan Party has duly authorized, executed and delivered this
Amendment.
(b) Full Force and Effect. All provisions of the Credit Agreement remain in full
force and effect on and after the date hereof except as expressly amended hereby. The parties do
not amend any provisions of the Credit Agreement except as expressly amended hereby.
(c) Counterparts. This Amendment may be signed in counterparts (by facsimile
transmission or otherwise) but all of such counterparts together shall constitute one and the
same instrument.
(d) Incorporation into Credit Agreement. This Amendment (including all Schedules
and Exhibits) shall be incorporated into the Credit Agreement by this reference. All
representations, warranties, Events of Default and covenants set forth herein shall be a part of
the Credit Agreement as if originally contained therein.
(e) Governing Law. This Amendment and the rights and obligations of the parties
hereunder shall be governed by, and construed in accordance with, the laws of the State of New
York without regard to its conflict of laws principles.
(f) Payment of Fees and Expenses. The Borrowers unconditionally agree to pay and
reimburse the Administrative Agent and save the Administrative Agent harmless against liability
for the payment of all reasonable out-of-pocket costs, expenses and disbursements of the
Administrative Agent, including, without limitation, the reasonable fees and expenses of counsel
incurred by the Administrative Agent in connection with the development, preparation, execution,
administration, interpretation or performance of this Amendment, any mortgage recording fees and
mortgage or recording taxes, and all other documents or instruments to be delivered in connection
herewith.
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(g) No Novation. Except as amended hereby, all of the terms and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect. The Borrowers, the
Guarantors, each Lender, and the Administrative Agent acknowledge and agree that this Amendment
is not intended to constitute, nor does it constitute, a novation, interruption, suspension of
continuity, satisfaction, discharge or termination of the obligations, loans, liabilities, or
indebtedness under the Credit Agreement or the other Loan Documents.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized,
have executed this Second Amendment as of the day and year first above written.
| REVOLVER AND TERM BORROWER: |
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| XXXXXXXXX COAL COMPANY, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | President | ||||
| REVOLVER BORROWER AND TERM GUARANTOR: |
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| XXXXXXXXX LAND COMPANY, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | President and Chief Financial Officer | ||||
| TERM BORROWERS AND REVOLVER GUARANTORS |
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| WESTERN MINERAL DEVELOPMENT, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | ||||
| Title: | Manager | ||||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| WESTERN DIAMOND LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Manager | |||
| WESTERN LAND COMPANY, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Manager | |||
| ELK CREEK L.P. |
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| By: ELK CREEK GP, LLC, as General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| REVOLVER AND TERM GUARANTORS: XXXXXXXXX ENERGY, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| XXXXXXXXX RESOURCES HOLDINGS, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| ELK CREEK GP, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| ELK CREEK OPERATING GP, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| ELK CREEK OPERATING, L.P. |
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| By: Elk Creek Operating GP, LLC, as General Partner | ||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | President and Chief Financial Officer | |||
| CERALVO HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Manager | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| PNC BANK, NATIONAL ASSOCIATION, individually and as Administrative Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| U.S. BANK NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| UNION BANK, N.A. |
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| By: | /s/ Y. Xxxxxx Si | |||
| Name: | Y. Xxxxxx Si | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| THE HUNTINGTON NATIONAL BANK |
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| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
| XXXXXXX XXXXX BANK, FSB |
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| By: | /s/ Xxxxxxx XxXxxxxx | |||
| Name: | Xxxxxxx XxXxxxxx | |||
| Title: | Senior Vice President | |||
