SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit
10.2
SECOND
AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT
AGREEMENT (this “Agreement”), is made and
entered into as of May 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;
and
WHEREAS, the Borrowers have
requested that the Lenders make certain changes to the Credit Agreement and that
the Lenders consent to certain actions of the Borrowers; and
WHEREAS, the Lenders are
willing, upon and subject to certain conditions, 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 any Default or Event of Default solely occurring by
reason of the Borrower’s failure to comply with (a) the Minimum Consolidated
EBITDA covenant set forth in Section 10.01 of the
Credit Agreement solely for the period ending March 31, 2008 and (b) the
Leverage Ratio covenant set forth in Section 10.02 solely
for the period ending March 31, 2008.
3. Amendments
to the Credit Agreement.
(a) Section 1.01 of the
Credit Agreement, Definitions, is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
“Second Amendment
Date” means the effective date of the Waiver and Second Amendment to
Revolving Credit Agreement dated as of May 5, 2008.
“Senior Notes” means
the 9.375% Senior Notes Due 2012 issued pursuant to the Indenture.
(b) Section 1.01 of the
Credit Agreement, Definitions, is
hereby amended by deleting the definitions of “Consolidated EBITDA”
and “Leverage
Ratio” in their entirety and substituting in lieu thereof the
following:
“Consolidated EBITDA”
means, with respect to any Person for any period, the consolidated Net Income of
such Person for such period plus, without duplication, the sum of the following
amounts of such Person for such period to the extent deducted in the
determination of consolidated Net Income of such Person for such
period: (a) Net Interest Expense and all fees and charges in
connection with the Agreement, the Term Credit Agreement and the Prior Credit
Agreement, (b) provisions for federal, state, local and foreign income, value
added and similar Taxes, (c) depreciation expense, (d) amortization expense, (e)
non-cash extraordinary, unusual or non-recurring losses (determined on an after
tax basis), (f) fees due and payable to Wachovia Bank, N.A. in connection with
cash management services for deposit accounts maintained at Wachovia Bank, N.A.
in an aggregate amount not to exceed $300,000 in any fiscal year, and (g)
non-cash expenses from the granting of stock options and restricted stock grants
minus, the amount of non-cash extraordinary, unusual or non-recurring gains
(determined on an after tax basis) of such Person for such period to the extent
added in the determination of consolidated Net Income of such Person for such
period. For the avoidance of doubt, the calculation of Consolidated
EBITDA shall exclude, any non-cash prepaid asset write-off related to KRP in the
amount of $1,800,000 (one million eight hundred thousand dollars) for the Fiscal
Year ending December 31, 2008.
“Leverage Ratio” ”
means, as of any date of determination (a) the amount of Senior Funded
Indebtedness as of such date, divided by
(b) the amount of Consolidated EBITDA of the Borrowers and their
Subsidiaries for the twelve (12) month period most recently ended prior to that
date; provided that, notwithstanding anything contained herein to the contrary,
for purposes of calculating the Leverage Ratio for the fiscal quarter ending as
of (i) June 30, 2008, the amount of Consolidated EBITDA required in clause (b)
of this definition shall be determined by taking the amount of Consolidated
EBITDA for the six months ended as of June 30, 2008 and multiplying that amount
by two (i.e. 6 months Consolidated EBITDA times 2) and (ii)
September 30, 2008, the amount of Consolidated EBITDA required in clause (b) of
this definition shall be determined by taking the amount of Consolidated EBITDA
for the nine months
ended as of September 30, 2008 and multiplying that amount by four and dividing
the result by three (i.e. 9 months Consolidated EBITDA times 4/3).
2
(c) Section 9.05 of the
Credit Agreement, Limitation on Issuance of
Equity Interests, is hereby amended by deleting clause (e) in its
entirety and inserting the following in lieu thereof:
“(e)
issuances of Equity Interests (other than Disqualified Equity Interests)
consisting solely of common stock of JRCC, to the holders of the Senior Notes in
exchange for, or as a redemption or repayment of, any or all such Senior
Notes.”
(d) Section 10.01, Minimum Consolidated
EBITDA, of the Credit Agreement is hereby amended by deleting such
Section in its entirety and inserting the following in lieu
thereof:
“SECTION 10.01 Minimum Consolidated
EBITDA. The Credit Parties shall not permit Consolidated
EBITDA for the indicated period ending on any date set forth in the table below
to be less than the amount set forth opposite such date:
|
Measurement Period
Ending
|
Consolidated
EBITDA
|
||
|
June
30, 2008
|
(6
Months)
|
$8.6
million
|
|
|
September
30, 2008
|
(9
Months)
|
$27.5
million
|
|
|
December 31,
2008
|
(12
Months)
|
$41.0
million
|
|
|
March
31, 2009
|
(12
Months)
|
$54.1
million
|
|
|
June
30, 2009
|
(12
Months)
|
$61.3
million
|
|
|
September
30, 2009
|
(12
Months)
|
$72.2
million
|
|
|
December 31,
2009
|
(12
Months)
|
$78.9
million
|
|
|
March
31, 2010
|
(12
Months)
|
$78.9
million
|
|
|
June
30, 2010
|
(12
Months)
|
$78.1
million
|
|
|
September
30, 2010
|
(12
Months)
|
$76.5
million
|
|
|
December 31,
2010
|
(12
Months)
|
$78.8
million
|
(e) Section 10.02, Leverage Ratio, of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and inserting the following in lieu thereof:
“SECTION 10.02 Leverage
Ratio. The Credit Parties shall not permit the Leverage Ratio
for the Credit Parties as of any date set forth in the table below to be greater
than the amount set forth opposite such date:
3
|
Measurement Period
Ending
|
Leverage
Ratio
|
|
|
June
30, 2008
|
5.0x
|
|
|
September
30, 2008
|
3.0x
|
|
|
December 31,
2008
|
2.6x
|
|
|
March
31, 2009
|
2.2x
|
|
|
June
30, 2009
|
1.7x
|
|
|
September
30, 2009
|
1.5x
|
|
|
December 31,
2009
|
1.5x
|
|
|
March
31, 2010
|
1.5x
|
|
|
June
30, 2010
|
1.5x
|
|
|
September
30, 2010
|
1.6x
|
|
|
December 31,
2010
|
1.5x
|
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, the consents in Section 3 hereof and
the amendments expressly set forth and referred to in Section 4 hereof, the
Credit Agreement shall remain unchanged and in full force and
effect. The waiver and consents contained herein shall not extend
beyond the terms expressly set forth herein for such waiver and consents, nor
impair any right or power accruing to the Administrative Agent or any Lender
with respect to any other Default or Event of Default 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, 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, 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.
4
7.
Conditions
to Effectiveness. This Agreement shall not become effective
unless and until the Administrative Agent has received (a) payment from the
Borrowers of an amendment fee in an amount equal to 0.25% times the
Commitments, (b) one or more counterparts of this Agreement, duly executed,
completed and delivered by the Borrowers, the other Credit Parties and the
Required Lenders and (c) a fully-executed amendment to the Term Credit
Agreement, in substantially the form attached hereto as Exhibit
A.
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.
5
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]
6
IN WITNESS WHEREOF, the
parties have caused this Second 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.
| BORROWERS: | ||
| XXXXX RIVER COAL COMPANY | ||
|
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
XXXXX
RIVER COAL SERVICE COMPANY
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| LEECO, INC. | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| TRIAD MINING, INC. | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| TRIAD UNDERGROUND MINING, LLC | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXXXX COAL CORPORATION | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXX CREEK ELKHORN COAL CORPORATION | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXX RIVER COAL SALES, INC. | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXXXX COAL LEASING COMPANY | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| BLUE DIAMOND COAL COMPANY | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXX ELKHORN COAL CORPORATION | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| GUARANTORS: | ||
| BDCC HOLDING COMPANY, INC. | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| EOLIA RESOURCES, INC. | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| SHAMROCK COAL COMPANY, INCORPORATED | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXX CREEK COAL COMPANY | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
| XXXXX CREEK PROCESSING COMPANY | ||
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title:
Chief Executive Officer
|
||
|
LENDER, ADMINISTRATIVE
AGENT AND COLLATERAL AGENT:
|
||
|
GENERAL
ELECTRIC CAPITAL CORPORATION
|
||
|
By:
|
/s/ Xxxxx XxXxxxxx
|
|
|
Name:
Xxxxx XxXxxxxx
|
||
|
Title:
Duly Authorized Signatory
|
Exhibit
A
[Term
Loan Credit Agreement Amendment]
